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.

Criminal Fair Trial Rights: Article 6 of the European Convention

Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights

Author(s): Associate Professor Ryan Goss

Article 6 fair trial rights under the European Convention on Human Rights are the most heavily-litigated Convention rights before the Strasbourg Court, generating a large and complex body of case law. This book provides an innovative and critical analysis of Strasbourg's Article 6 case law. The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments. The book takes a complementary (but different) approach. Instead of analyzing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to many of the component rights. It will be useful to all those working in the fields of criminal law and human rights.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

International Law: Cases and Materials with Australian Perspectives

International Law: Cases and Materials with Australian Perspectives - Second Edition

Author(s): Donald Rothwell, Stuart B Kaye, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: Environmental Law, International Law

Rehabilitiation and Compensation Act 1988

Annotated Safety, Rehabilitation and Compensation Act 1988 (10th ed)

Author(s): , John Oman Ballard, Allan Anforth

The 10th edition of this well known reference book provides the full text of the Safety, Rehabilitation and Compensation Act as at 1 April 2014, together with comprehensive annotations, organised on a section-by-section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal on the Act. The book has up-to-date discussion of recent litigation concerning the Safety, Rehabilitation and Compensation Act, including "reasonable administrative action taken in a reasonable manner", liability for injuries in the course of employment, and construction of the approved Guide. It also includes a list of all legislative instruments published in the Gazette or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act where the date of injury was before 1 July 2004. Canberra barrister Allan Anforth has contributed an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

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Centre:

Research theme: Administrative Law, Military & Security Law, Regulatory Law and Policy

Laying Down the Law

Laying Down the Law

Author(s): Robin Creyke, Catriona Cook, Robert Stanley Geddes, David Hamer, Tristan S Taylor

Fully revised and expanded, this ninth edition of Laying Down the Law provides an invaluable introduction to the study of law. It includes clear and engaging explanations of essential foundation topics include Australia’s legal system and sources of law while discussion of current issues assists readers to understand the context in which our legal system operates. The comprehensive coverage of precedent and statutory interpretation provides a solid basis for legal study and practice, and the margin glossary identifies, explains and demystifies legal terms. Practical examples and exercises support learning and the development of key skills. New to this edition is a chapter on the legal profession and professional legal practice and ethics.

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Research theme: Administrative Law, Criminal Law, Private Law, Regulatory Law and Policy

Australian anti-discrimination law 2nd edition

Australian anti-discrimination law 2nd Edition

Author(s): , Neil Rees, Dominique Allen

The second edition of this book, which is the first major text in the field directed to both legal practitioners and law students, contains a detailed analysis of Australian anti-discrimination law as well as extracts from all of the major cases and the writings of leading commentators. It incorporates the many changes to the law since the first edition was published in 2008 and includes new chapters dealing with positive duties, victimisation and protections against discrimination in industrial relations laws. The book includes a comprehensive examination of the difficult concepts of direct and indirect discrimination as well as coverage of the major grounds of unlawful discrimination, such as race, sex and disability. The book records the history of the major pieces of anti-discrimination legislation, examines important international developments and includes numerous suggestions for reform.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice

Criminal Law and Procedure in New South Wales

Hayes & Eburn Criminal Law and Procedure in New South Wales

Author(s): Michael Eburn, Roderick N Howie, Paul Sattler

Hayes & Eburn Criminal Law and Procedure in New South Wales states the basic principles and provides the fundamental source material required for a study of New South Wales criminal law and procedure. It examines the substantive law in a procedural and evidentiary context. Hayes & Eburn Criminal Law and Procedure in New South Wales is specifically designed to meet the needs of students who will be studying criminal law over one semester. The text covers all the learning requirements prescribed in the Legal Profession Admission Rules 2005 (NSW). It gives students the thorough grounding they need in the basic principles of the criminal justice system before moving to the detail of their application in an expanding range of discrete contexts. It also provides practitioners with an introduction to the principal authorities and statutory provisions governing the practice of criminal law in New South Wales. While this book remains unique for its strong focus on the jurisprudence of the New South Wales criminal courts, the principles explored in it will also assist in understanding the criminal law of all Australian jurisdictions.

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Centre:

Research theme: Criminal Law

Developing Restorative Justice Jurisprudence: Rethinking Reponses to Criminal Wrongdoing

Developing Restorative Justice Jurisprudence Rethinking Responses to Criminal Wrongdoing

Author(s): Tony Foley

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. The work provides a fresh insight into how today’s criminal law might develop in order to bring restoration directly into the mix for tomorrow.

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Centre: PEARL

Research theme: Criminal Law, The Legal Profession

'CLCs Having an Impact on Lives - Strategic Approaches to Problem Solving’ (Presentation Slides)

Author(s): Elizabeth Curran

Theme - Advancing (by discovering and creating, developing innovative ideas and strategies, including and incorporating the learning and perspectives of others):

Strategic thinking can and has enabled the benefits of early intervention and prevention of legal problems and their escalation. This goes beyond one-to-one case work and can address problem at their core. This paper will explore easy, useable, relevant and replicable results of research evaluations undertaken by Curran of what is effective legal service action that has prevented the public from having to go through the same problem and thus enhancing service impact. Reflective practice is a key way to inform strategic action and continuous learning and how this can be done will also be explored.

This paper examines case studies from CLCs, good practice, responsiveness, strategic thinking and processes that foster having significant impact. It will share how to, up to date action research, facilitate sharing of experiences through the session’s interactive approach.

The session will take an adult learning approach to delivery meaning it will involve centres in discussion about their experiences rather than being in a traditional or lecture mode of delivery. People in the room have expertise and skills that can be shared by all in participants in the session.

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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

Building Capacity to Cope with Ethical Dilemmas in Legal Practice Through Teaching ‘Giving Voice to Values’ Techniques (Presentation Slides)

Author(s): Elizabeth Curran

This panel presentation will be a basic introduction for a more detailed session on Saturday with Viv Holmes, Anneka Ferguson (in absencia) which will discuss the theory, practice, research and student responses that informs our courses.

In the context of Recommendations 6 and 7 Critical issues and challenges are presented. How can teachers challenge students to explore ethical dilemmas emerging in all area of practice be they commercial, property, consumer and civil law? How can we as teachers not just teach students to identify ethical issues but also assist them in building the tools necessary to actively and appropriately deal with such dilemmas?

In the ANU Legal Workshop (delivered in a blended mode with face to face and on-line teaching) the professional legal training course for graduates to become admitted to legal practice, we use Mary Gentile’s ‘Giving Voice to Values’ (GVV) approach. This will be briefly explained.

I have taught ethics in an undergraduate context and am now teaching at graduate levels and see more opportunities using the GVV approach. In Legal Workshop’s Ethics subject and in a subject, ‘Professional Development’ (PM) that supports key practice areas, we use GVV to engage students at a deeper level so they learn about themselves and their working environment. The key GVV approach is to equip students with not only the ability to identify an ethical problems but also strategies to enable them to act on their ethical duties.

Our aim is to build the students’ resilience, build their capacity to act ethically and speak up appropriately and wisely.

During my section of the panel presentation, I will ask the audience to participate by doing the first exercise students undertake- a Professional Development Journal Entry. This activity is based on GVV’s ‘Tale of Two Stories’ and requires students to recall and then reflect on a time in their lives when they have, and have not, ‘spoken’ their values. The activity is a useful lead-in to tackling ethical issues in legal workplace scenarios as the course progresses (tomorrow’s session). This activity starts the reflective practice conversation and flags issues that emerging lawyers face in responding ethically. In student debriefs some of our students (many of whom work in legal practice as para-legals, judges associates, waitressing, marketing and fact food outlets etc.) indicate they already often encounter unethical practice and that examining the reasons why they speak or do not speak out is useful for the later exercises. The discussion also has scope for teachers to share their experiences, values and ethical dilemmas and how they did or not deal with them. In the follow-up session on Saturday we will explore how the GVV approach enables students to develop and practise skill for acting ethically. It is suggested a similar activity could be used in undergraduate level to start reflective practice and the values and ethics discussion with students earlier.

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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

‘Working Collaboratively, Holistically and Strategically in and with Community – The Power of Community Development in Legal Education’ (Presentation Slides)

Author(s): Elizabeth Curran

“You never really understand a person until you consider things from his point of view…Until you climb inside of his skin and walk around in it” Atticus Finch, To Kill a Mockingbird, Harper Lee.

I have been asked to answer the following questions today: 1. What is Community Development 2. What it means in terms of approach 3. To provide examples of when I have used it in my work 4. To distill any examples of how it is done 5. To discuss how to evaluate its impact and worth and 6. To examine why it might be a core service of CLCs. 7. Dome key challenges in terms of funding and funders.

Now in Australia we have the empirical data that had been lacking to support anecdotally what had been observed by some service providers over many years. These empirical studies not only demonstrated that similar issues arise in Australia for people who are the recipients of legal assistance services (largely people on social support or with incomes of under $26,000K) but that inroads could be made by joined- up services both legal and non-legal, holistic approaches, community legal education that reaches out and is targeted and responsive to community needs and behaviour. The studies confirmed that the direction of many legal assistance services to work collaboratively, holistically and strategically to assist people, to educate them and to work towards law reform to ensure that recurring problems are all critical if access to the legal system and equality before the law are to be attained.

CLCs have a vital role as community agencies along with others to enable community members to have and find a voice.

“If funders and the community want the legal assistance sector to make a difference in solving people’s problems and advancing and protecting community rights then they must recognize the need to approach problems strategically and use various approaches to obtain results. To achieve this, organizations must be given a level of autonomy that frees them up to use their skills, experience and knowledge of the system as well as the client's actual circumstances to decide the best strategy.”

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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

The Law of Deliberative Democracy

The Law of Deliberative Democracy: Seeding the Field

Author(s): Ron Levy

Election law scholarship has been slow to take note of the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013.

In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning.

Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties.

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Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Tough Love

Tough Love: Professional Regulation of Lawyer Dishonesty

Author(s): Kath Hall

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

Strategic Privatisation

Strategic Privatisation of Transnational Anti-Corruption Regulation

Author(s): Kath Hall

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

Arctic Sovereignty

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

The Expansion of Global Law Firms in Australia and Asia

The Expansion of Global Law Firms in Australia and Asia

Author(s): Kath Hall

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

My Top Ten Tips for Good Deaning

My Top Ten Tips for Good Deaning

Author(s):

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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Research theme:

Solving Problems

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

Energy and Environment Policy Case

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

Author(s):

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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Nano-Safety or Nano-Security?

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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