Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

International Law and the 2003 Invasion of Iraq Revisited

Author(s): Donald Anton

This paper was presented on April 30, 2013, at a Canadian-Australian seminar on the 2003 invasion of Iraq ten years later. It canvasses and reconsiders the two major justifications put forward by the US, UK, and Australia for military intervention in Iraq -- revived Security Council authorization and self-defense. It concludes by highlighting that states who had opposed military action in Iraq have been keen to ensure that it would not be legitimize with the passage of time, as some claim has happened with Kosovo. Many states are still critical given the uncertain future of Iraq and continue to assert the illegality of the invasion. Certainly states in the Security Council and elsewhere have become much more careful with the language, especially the language of consequential Resolutions. Indeed, they appear to exhibit and cautious unwillingness to approve seemingly necessary measures. The way in which the US, UK and Australia mounted their revival argument has, no doubt, hampered the ability to reach agreement in the Security Council on urgent humanitarian disasters like Syria and elsewhere. One hopes that in the future the long work on cooperative action in the Security Council will be preferred to plausible, but unpersuasive, legal interpretation.

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The Dark Days of NSA Indiscriminate Data Surveillance

Author(s): Donald Anton

This is an op/ed published in the Canberra Times on June 14, 2013. It highlights that the mass surveillance of metadata of hundreds of millions online users by the U.S. National Security Administration is a crisis for both privacy and freedom. It calls for action to establish transparent constitutional limitations under US law and international human rights law on privacy. If we do not take action, if we are like sheep and easily scared into relinquishing our privacy and personal liberties in exchange for the false promise of certain security, then liberty has started to die in our hearts and if that is so, as Learned Hand once remarked, no law can save it or us.

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Australia Before the World Court: A Look Back and a Look Forward

Author(s): Donald Anton

This piece was a contribution to a Symposium held on June 7, 2013 in anticipation of the commencement of the oral proceedings in the Whaling in the Southern Ocean Case between Australian and Japan, before the International Court of Justice on June 26, 2013.

The paper traces the Australian experience before the World Court in order to place the Whaling in the Southern Ocean Case in context and to try to draw some lessons. It starts by considering the nature international adjudication and the limitations of an agency whose principal function is to apply legal techniques in the peaceful resolution of international disputes. It spends the most time, however, excavating around Australia’s first relationship with an international tribunal – the PCIJ – and then building on Henry Burmester’s masterful contribution on ‘Australia and the International Court of Justice’ in the 1996 Australian Yearbook of International Law. It also spends considerable time telling two early stories about Australia's relationship with the World Court, that are little remembered today.

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The 'Thirty Percent Solution' and the Future of International Environmental Law

Author(s): Donald Anton

This is a contribution to a symposium volume on Dan Bodansky's "Art and Craft of International Environmental Law". It takes as its starting point, Bondansky's accurate claim that "International environmental law is neither a panacea nor a sham. It can play a constructive role, but that is all. It might be called a 'thirty-percent” solution.'" While it might be more than that some day, the contribution argues that outcome is not likely so long as the international community retains the concept of sustainable development, as it is currently understood, as its organizing principle.

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Book Review: Climate Change and Indigenous Peoples: The Search for Legal Remedies, Randall S. Abate & Elizabeth Ann Kronk, Editors (Edward Elgar: Cheltenham, UK & Northampton, MA, USA, 2013) pp. i-xxvii; 1-590

Author(s): Donald Anton

The excellent book that Professors Abate and Kronk have brought together as an edited collection is an important addition to an ongoing search for legal remedies for indigenous peoples facing existential threats on account of climate change harms. It picks up on a 2009 report by the Office of the UN High Commissioner for Human Rights that examined the linkages between climate change and indigenous peoples for the first time, at least by an international human rights body. Abate and Kronk write in the opening chapter, their book “recognizes that indigenous peoples are particularly vulnerable to climate change, both physically and legally” and the book specifically “addresses the challenges that these communities face in responding to climate change impacts.”

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Book Review: Richard Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford 2012, lxvii 384 pp. ISBN 978-0-19-953279-7.

Author(s): Donald Anton

Garnett's book provides a fresh, detailed look at the significantly understudied issue of whether rules governing the application of procedure in transnational litigation should be found in private international law or the law of the forum. It does so from a number of different angles which demonstrate the highly practical importance of the distinction between substance and procedure. More significantly, the book has the potential to play a central role in taking an historic universally accepted rule in choice of law – the law of the forum always controls matters of procedure – and further unsettling this certainty by offering compelling reasons why the contemporary application of the rule needs to be more nuanced based on something like Kahn-Freund’s concept of ‘enlightened lex fori.’

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Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea: Espionage Between Neighbours in the Latest Round

Author(s): Donald Anton

This brief article details the latest in a long-running dispute between Timor-Leste and Australia over rights to resources in the seabed and subsoil below the sea between their coastlines. Having been closed out of the International Court of Justice and the International Tribunal for the Law of the Sea, Timor-Leste is now seeking to arbitrate its dissatisfaction with current arrangements under a provision in the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). Potential claims of fraud, breach of good faith, and unlawful intervention mean that it is possible; perhaps likely, that CMATS will be declared invalid or void. Much will depend on the evidence, however. Australia now finds itself in a difficult situation and the dispute is likely to continue and fester absent good will on the part of both parties. The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries of between Timor-Leste and Australia in order to achieve and equitable solution, create certainty about rights, and bring an end to this continuing saga.

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Planetary Medicine and the Waitangi Tribunal Whanganui River Report: Global Health Law Embracing Ecosystems as Patients

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A recent decision of the Waitangi Tribunal granted legal personhood to New Zealand’s Whanganui River (appointing guardians to act in its interests). Exploring the impacts of this decision, this column argues that new technologies (such as artificial photosynthesis) may soon be creating policy opportunities not only for legal personhood to be stripped from some artificial persons, but for components of the natural world (such as rivers and other ecosystems) to be granted such enforceable legal rights. Such technologies, if deployed globally, may do this by taking the pressure off ecosystems to be exploited for human profit and survival. It argues that, by also creating normative space 

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Global Artificial Photosynthesis: Challenges for Bioethics and the Human Right to Enjoy the Benefit of Scientific Progress

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So what is artificial photosynthesis and why is it important? Most of us knew that photosynthesis is the process whereby plants and certain bacteria have used sunlight as a source of energy to split water to create energy fro the production of food (starches) with the addition of atmospheric carbon dioxide, while producing atmospheric oxygen. Our policy makers seem to think that only plants will ever 'do' photosynthesis. This is a bit like the men at the end of the 19th century who were convinced that only birds could ‘do’ controlled flight. If they were alive today their solution for long distance air travel might be to genetically engineer huge homing pigeons, capable of carrying passengers on their back.

Artificial photosynthesis began in the Cold War. It really was part of what was known in the 'Dr Stangelove' film as the 'mine-shaft' gap, part of the plan to enhance the capacity of the United States to keep its politicians, senior industrial and military people alive during a nuclear winter. Although artificial photosynthesis on some definitions includes synthetic biology (for example the genetic engineering of bacetria to produce lipid-based fuels) its core research involves nanoscale engineering. The nanoscale involves manipulating matter at the level of about a billionth of a metre, it involves making objects atom by atom. Some examples of how nanotechnology is already improving the light capture, electron transport and water splitting and energy storage aspects of artificial photosynthesis will be presented later.

Perhaps the most significant aspect of artificial photosynthesis is the prospect that nanotechnology may allow the global domestic production of cheap, 'off-grid' solar fuels and food. With timely and coordinated government, academic, corporate encouragement, artificial photosynthesis may become a global phenomenon, deriving inexpensive, local (household and community) generation of fuels and basic foods from simple raw materials – sunlight, water and carbon dioxide – just like plants do, only better.

One way governance principles (such as those derived from international human rights) can assist this process is by assisting to create the normative architecture for a Global Artificial Photosynthesis project (GAP) (or Global Solar Fuels and Foods (GSF)) project. Such a macroscience GAP or GSF project can be regarded as the moral culmination of nanotechnology. It could advance existing foundational virtues of international human rights such as justice equity and respect for human dignity, as well as emerging virtues such as environmental sustainability. In other words, this is one area where we need to have law and science rapidly and efficiently working side by side if it's going to work in time to make a difference and assist humanity to move from what (as we will see) is now no longer being called the Holocene, but the Anthropocene, towards the Sustainocene epoch.

One hitherto largely unexplored area of international human rights that could be significant in this context concerns the right to enjoy the benefits of scientific progress and its applications.

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Artificial Photosynthesis as a Frontier Technology for Energy Sustainability

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Humanity is on the threshold of a technological revolution that will allow all human structures across the earth to undertake photosynthesis more efficiently than plants; making zero carbon fuels by using solar energy to split water (as a cheap and abundant source of hydrogen) or other products from reduced atmospheric carbon dioxide. The development and global deployment of such artificial photosynthesis (AP) technology addresses three of humanity’s most urgent public policy challenges: to reduce anthropogenic carbon dioxide (CO2) emissions, to increase fuel security and to provide a sustainable global economy and ecosystem. Yet, despite the considerable research being undertaken in this field and the incipient thrust to commercialization, AP remains largely unknown in energy and climate change public policy debates. Here we explore mechanisms for enhancing the policy and governance profile of this frontier technology for energy sustainability, even in the absence of a global project on artificial photosynthesis.

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Nano-Safety or Nano-Security? Reassessing Europe's Nanotechnology Regulation in the Context of International Security Law

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The rapid development of nanotechnology over the last decade has resulted in a widespread introduction of engineered nanomaterials (ENMs) into the consumer products of developed countries. Because of the potential toxicity of ENMs, however, concerns for health and environmental safety have led to controversial public debates in many countries as to whether and how the safety of products containing ENMs should be specifically ensured. In these regulatory debates, however, the role nanotechnology plays in addressing various contemporary security challenges is given little, if any, attention. This perspective article proposes that these contemporary security challenges should be more clearly incorporated into regulatory decision-making about nanotechnology, while protecting the public from potential health and environmental security threats that may result from exposure to a widespread and uncontrolled release of ENMs. It demonstrates the significance of enhancing this security perspective to nanotechnology regulation by: (1) highlighting international legal obligations relevant to nanotechnology; and (2) examining the current regulatory approaches adopted in Europe in light of various security considerations relevant to the implementation of those international legal obligations.

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Betfair Pty Ltd v Western Australia and the New Jurisprudence of Section 92

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Except for an immediate small flurry of cases, section 92 of the Australian Constitution went to sleep for 20 years after the High Court’s ground-breaking decision in Cole v Whitfield in 1988. Then in 2008, this pivotal guarantee of free trade among the states in our 19th century foundational document came into collision with new, 21st century, electronic ways of doing business, to which state geographical boundaries were largely irrelevant — except that it was the states that sought to regulate this business. In Betfair Pty Ltd v Western Australia, a 2008 case involving state regulation of internet gambling, the High Court reminded us of the gospel according to Cole v Whitfield: the states cannot regulate in a way that discriminates against interstate trade so as to confer protectionist benefits on their own intrastate trade. In the age, however, of the new economy, and of national competition law, some commentators have asked whether the national ‘common market’ is adequately fostered by confining section 92 to the prevention of state protectionism. Two further internet gambling cases in 2012 appear to squash any suggestion in the 2008 case that the High Court might stray from the true path of Cole v Whitfield and expand the ambit of section 92 beyond state protectionism — although a possible issue raised by laws that lessen competition without involving state protectionism was left to another day. In the author’s view, section 92 is appropriately confined to the prevention of state protectionism, with broader protection of the common market best left to other mechanisms.

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Energy and Environment Policy Case for a Global Project on Artificial Photosynthesis

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A policy case is made for a global project on artificial photosynthesis including its scientific justification, potential governance structure and funding mechanisms.

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‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power

Author(s): Greg Weeks

This article analyses the options available to the High Court in defining the phrase 'officer of the Commonwealth' in the context of modern mixed administration. The various tests used in Australian administrative law are explored, with a focus on the "public function" test developed in Datafin. We argue that these administrative law tests are largely unhelpful and inappropriate for defining the scope of section 75(v) of the Constitution. Instead, we suggest that the High Court could find inspiration for the most appropriate and adapted solution from an unlikely place: Canadian human rights law. We argue that by adapting the 'control' used by Canadian courts to determine the scope of Canadian Charter of Rights and Freedoms, the Australian High Court could find an appropriate balance for reviewing the actions of private sector actors, while simultaneously achieving consistency with existing precedent.

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Centre: CIPL

Research theme: Administrative Law

Solving Problems – A Strategic Approach: Examples, Processes & Strategies

Author(s): Elizabeth Curran

The report has been commissioned by Consumer Action Law Centre and the Footscray Community Legal Centre and launched at a National Conference and the Ruby Hutchison Lecture on Thursday 14 March 2013. The ACCC and CHOICE jointly host the Ruby Hutchison Memorial Lecture each year. Ruby Hutchison was the founder of the Australian Consumers' Association which is now known as CHOICE.

Dr Curran's report which was written with the assistance of the staff of Consumer Action Law Centre and the Footscray Community Legal Centre illustrates the importance of going beyond an individual approach to casework to benefit individuals, groups and the broader community. It argues that a strategic approach to problem solving can better ensure that a service is effective, efficient and targeted, with a broader and long lasting impact or as government says - a “successful outcome”. It also proposes that community legal centres should be given more support to encourage and foster an environment where strategic thought and planning about service mix approaches are used to make the service more outcome-focused. This would lead to service being more effective and mindful of what interventions are needed to achieve the best outcomes rather than merely providing case work, information and referral in isolation from a broader strategy that improves clients’ lives.

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Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

My Top Ten Tips for Good Deaning

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In this paper, which originated as an after-dinner speech to other Deans, the author reflects on his 15 years as Dean of the ANU College of Law and shares his 'top ten tips' for succeeding in this important and challenging leadership position. Without diminishing the importance of attention to budgetary matters, especially fund raising, and to mundane matters of management and administration, he rather stresses the importance of fostering collegiality, energising one's colleagues, and generally creating an environment in which everyone can thrive and realise their own true, and unique, potential.

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The Expansion of Global Law Firms in Australia and Asia

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Over the last 18 months the legal profession has seen unprecedented growth in the operations of global law firms in Australia. Recent mergers between top-tier and leading Australian law firms demonstrate the importance of Asian markets and the shifts in economic power from the West to the East. For such firms there are clear market and competitive drivers for expansion into Australia including proximity to rapidly developing Asian economies and increased opportunity to expand the firm’s global brand. Yet understanding the role played by Australian law firms in these developments can be tricky. For some newly merged global firms, the Australian operations are central to the firm’s regional and global expansion, allowing the firm to draw upon the strong performance and reputational capital of the Australian offices. For other global firms their alliances with Australia firms provide a strategic foundation for their expansion into Asia. And for third group of firms Australia remains a destination in its own right, sitting within the firm’s overall global network of international offices.

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Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Arctic Sovereignty and its Legal Significance for Canada

Author(s): Donald Rothwell

Throughout much of the Twentieth Century there was an ongoing debate within Canada as to the status of its territorial claims in the Arctic. Following the voyage of the SS Manhattan in 1969 that debate was joined to also encompass consideration of Canadian Arctic maritime sovereignty. With the exception of the disputed Hans Island, over which Canada and Denmark have agreed to disagree, there is no direct challenge to Canadian Arctic sovereignty in 2013. Nevertheless, it has been a persistent theme in Canadian academic and political discourse for much of the past decade that Canada’s Arctic sovereignty is threatened. Canada, along with all of the Arctic states, is also beginning to face the reality that the Arctic is facing rapid globalization partly as a result of climate change and the melting of the Arctic ice but also because of the growing interest of non-Arctic states in accessing the Arctic. This paper seeks to challenge some of the perceptions that have developed with respect to Canadian Arctic sovereignty from the perspective of international law. Consideration will be given to the status of Canada’s territorial and maritime claims in the Arctic, and the rights and obligations that Canada has in the Arctic as a party to the 1982 UN Convention on the Law of the Sea (LOSC). Particular attention will be given to Canada’s claims to an Arctic outer continental shelf, the regulation and management of the Northwest Passage, and the freedoms of navigation enjoyed by non-Arctic states within Canada’s exclusive economic zone.

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Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Strategic Privatisation of Transnational Anti-Corruption Regulation

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This article discusses the privatisation of transnational anti-corruption regulation. Increasing global non-state rules, guidelines and standards have become a visible and legitimate form of corruption regulation and a key influence on the development and implementation of state-based anti-corruption laws. These private regulatory instruments are created by multilateral development banks, bi-lateral and multi-lateral development agencies, NGOs, industry groups, private corporations and technical experts. The result is that state-based transnational anti-corruption regulation is now increasingly privatised, harmonised and globalised. This not only affects developments in national anti-corruption regulation, but also the direction of corporate governance more generally. Whilst the interaction between public national and private global regulation is clearly of strategic benefit to governments, it is also creating a multi-level framework of incentives and pressures on global corporations to improve the integrity of their activities and reduce the incidence of corruption.

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Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Tough Love: Professional Regulation of Lawyer Dishonesty

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Regulating lawyer dishonesty is a key focus of professional misconduct cases in most jurisdictions. And rightly so. In any legal system aimed at the just resolution of disputes between citizens, it is essential that lawyers’ words and behaviour can be relied upon by the courts, clients, other lawyers and the public. Yet research into seven years of disciplinary cases in New South Wales (NSW), Australia suggests that only a narrow range of dishonest conduct is actioned, often with harsh results for the practitioners involved. Research outlined in this article shows that 65% of the cases decided in this jurisdiction between 2004-2010 involved findings of practitioner dishonesty, 80% of the practitioners involved in those cases were disbarred and 89% of the total number of lawyers disciplined worked as solo and small firm practitioners.

The Australian research reported in this article may be emblematic of similar issues that occur in the regulation of lawyer dishonesty in both the United States and Canada. It is therefore argued that, for disciplinary cases to be seen as legitimate and just, it is important for the profession and regulators to consider the way dishonesty is being characterized and the harshness of the penalties imposed. When these questions are asked in the Australian context, the research suggests there is a tendency to treat small and sole firm practitioners particularly harshly even where small instances of dishonesty are involved. In addition, the dominant regulatory approach is still to link dishonesty with poor character, a connection that is unsupported by empirical research in psychology. Finally, there appears to be limited appreciation by regulatory authorities of the links between dishonesty, stress and psychological conditions.

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Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

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