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.

Senate Inquiry into Price Regulation on the Prostheses List

Author(s):

A recent Senate Inquiry investigated the Prostheses List (PL) which has been an integral part of the private health care system since its introduction in 1985. The PL sets the price of various prostheses products available for private health insurance patients. In recent years, however, the PL has come under scrutiny due to the inflated prices of prostheses, lack of transparency from the list's creators and regulators, and increased premiums. This column critically analyses the recent Senate report, particularly as to whether it appropriately addressed the various concerns and issues raised in submissions and terms of reference of the inquiry and what ongoing role the PL should have in the Australian Healthcare System.

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Centre:

Research theme:

Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape

Author(s): Greg Weeks

The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that ‘wrongs should not go unremedied’, the question of why this is so and how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions (eg misfeasance in public office and breach of statutory duty), the creation of new causes of action in tort (eg the Beaudesert tort and constitutional torts), and the interpretation of statutory remedial powers (eg the power to ‘do justice between the parties’ pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth)). Whatever the virtue of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape

Author(s): Greg Weeks

The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that ‘wrongs should not go unremedied’, the question of why this is so and how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions (eg misfeasance in public office and breach of statutory duty), the creation of new causes of action in tort (eg the Beaudesert tort and constitutional torts), and the interpretation of statutory remedial powers (eg the power to ‘do justice between the parties’ pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth)). Whatever the virtue of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies

Author(s): Ron Levy

Referendums are now common in ‘conflict societies’ — societies where widespread armed engagement recently occurred, is occurring or is liable to occur. If well designed, a referendum might improve the prospects of achieving a conflict settlement. The referendum’s relative democratic legitimacy may also help to ensure against subsequent breach, once a settlement is reached. However, in practice the utility of referendums for conflict settlement has been inconsistent. Some past referendums faltered (e.g. a ‘no’ vote delayed settlement) as a result of neglect of careful institutional design. In particular, a number of past referendums proceeded as simple majoritarian exercises with little in the way of support for voters’ deliberation about issues at stake. By contrast, a handful of authors have described ‘Deliberative Referendums’ purpose-designed to generate more rational and informed referendum campaigns. Nearly all past work on Deliberative Referendums has focused on peaceful societies. Building on this past work, the present article introduces the term ‘Shotgun Referendum’ to refer to a Deliberative Referendum held under conditions of ongoing or apprehended violence. The article explains why such a referendum might incrementally improve the prospects for conflict settlement. It proposes the use of deliberative design features — some novel, others well known — and places these within a distinctive frame drawing on constitutional and deliberative theory. The article thus serves as a scoping study of the aspirations and boundaries of Shotgun Referendums. This can offer more careful direction when, as seems inevitable, in future more conflict societies hold referendums.

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Centre: CIPL, DGAL

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

Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

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Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Here and Now: From Aestheticizing Politics to Politicizing Art

Author(s): Desmond Manderson

The nation is not a natural construction. It is mediated through representations and particularly through representations with a sensory component. Images therefore are primary means through which a collection identity is established. They serve to constitute myths of belonging; to distinguish friend from enemy, as Schmitt put it. They tell stories; they create models and examples that frame our social existence. But they also generate the icons and symbols whose repetition and familiarity - flags, monuments, even colour combinations - etch habits of feeling and mental associations deep into our psyche.

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Centre: CLAH

Research theme: Legal Theory

Soft Law and Public Liability: Beyond the Separation of Powers?

Author(s): Greg Weeks

Soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. It relies for this result on the fact that people generally assume that soft law requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals have a limited capacity to obtain remedies where public authorities fail to adhere to the terms of their published soft law. This paper examines reliance on soft law and considers a selection of the diverse forms in which it appears. It considers which remedies are available where an individual suffers loss as a result of relying on soft law and asks whether and how the separation of powers doctrine can be updated to attach legal significance to the proliferation of soft law. Soft law is a topic about which little has been written. Given its importance as a regulatory tool, a fuller analysis of its place within the separation of powers model is both timely and original.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Designing Referendums for Peacemaking: The Case of Bougainville

Author(s): Ron Levy, Amelia Simpson

The use of referendums in conflict societies has increased significantly in recent decades. A planned referendum in Bougainville, Papua New Guinea, is a current example. Referendums potentially help a conflict society to progress towards a peaceful resolution of its conflict even in the face of entrenched opposition by certain elites. And, because they can enjoy broad social perceptions of democratic legitimacy, referendums may also help to ensure against subsequent breach of any settlement reached. Yet, in practice referendums have not always been beneficial. Little institutional effort has gone toward improving the popular discourse leading up to the final vote. Standard referendum campaigns often merely amplify the voices of contending and entrenched political parties and elites. In a conflict society, where social polarization is pronounced, referendums thus risk aggravating, rather than ameliorating, tensions.

Research in deliberative democracy - with its concern for channeling disagreement into reasoned forms of persuasion - has yielded insights relevant to resolving violent inter-communal conflict. In this article we suggest the use of a specially-designed ‘deliberative referendum’ in Bougainville. Such a referendum may improve the conflicting parties' prospects of reaching common ground. Even a marginal improvement in the referendum’s deliberative quality may help to reconstruct the referendum from a potential destabilizing factor to a more effective peace-building tool. Yet, while we explore how a deliberative referendum might help to impel the Bougainville peace process toward successful resolution, we also consider the referendum’s hazards.

Read on SSRN

Centre: CIPL, DGAL

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

Soft Law and Public Liability: Beyond the Separation of Powers?

Author(s): Greg Weeks

Soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. It relies for this result on the fact that people generally assume that soft law requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals have a limited capacity to obtain remedies where public authorities fail to adhere to the terms of their published soft law. This paper examines reliance on soft law and considers a selection of the diverse forms in which it appears. It considers which remedies are available where an individual suffers loss as a result of relying on soft law and asks whether and how the separation of powers doctrine can be updated to attach legal significance to the proliferation of soft law. Soft law is a topic about which little has been written. Given its importance as a regulatory tool, a fuller analysis of its place within the separation of powers model is both timely and original.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Designing Referendums for Peacemaking: The Case of Bougainville

Author(s): Ron Levy, Amelia Simpson

The use of referendums in conflict societies has increased significantly in recent decades. A planned referendum in Bougainville, Papua New Guinea, is a current example. Referendums potentially help a conflict society to progress towards a peaceful resolution of its conflict even in the face of entrenched opposition by certain elites. And, because they can enjoy broad social perceptions of democratic legitimacy, referendums may also help to ensure against subsequent breach of any settlement reached. Yet, in practice referendums have not always been beneficial. Little institutional effort has gone toward improving the popular discourse leading up to the final vote. Standard referendum campaigns often merely amplify the voices of contending and entrenched political parties and elites. In a conflict society, where social polarization is pronounced, referendums thus risk aggravating, rather than ameliorating, tensions.

Research in deliberative democracy - with its concern for channeling disagreement into reasoned forms of persuasion - has yielded insights relevant to resolving violent inter-communal conflict. In this article we suggest the use of a specially-designed ‘deliberative referendum’ in Bougainville. Such a referendum may improve the conflicting parties' prospects of reaching common ground. Even a marginal improvement in the referendum’s deliberative quality may help to reconstruct the referendum from a potential destabilizing factor to a more effective peace-building tool. Yet, while we explore how a deliberative referendum might help to impel the Bougainville peace process toward successful resolution, we also consider the referendum’s hazards.

Read on SSRN

Centre: CIPL, DGAL

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

Australian Senate Committee Report on Transvaginal Mesh Devices

Author(s):

On 28 March 2018 the Australian Senate Community Affairs References Committee issued its final report on transvaginal mesh devices. It found these devices have caused unnecessary physical and emotional pain and suffering to thousands of women who were not told by their doctors of the objective material risks associated with their use. The Senate Committee concurred with the Public Health Association of Australia's (PHAA) description of the complications resulting from transvaginal mesh implants as constituting a serious public health issue requiring a response at both an individual and at a population level, including counselling, public education, clinical interventions and long-lasting protective mechanisms. The committee’s inquiry highlighted significant shortcomings in Australia's reporting systems for medical devices, with flow-on consequences for the health system's ability to respond to in a timely and effective way to related concerns. Amongst other recommendations, the Senate Committee backed the establishment on a cost recovery basis of a national registry of high risk implantable devices linked to a system of mandatory reporting of adverse events.

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Research theme:

Artificial Islands and Territory in International Law

Author(s): Imogen Saunders

Artificially created islands are a contemporary reality, created and used for military and non-military purposes. Analysis of such islands has largely been limited to their status under United Nations Convention on the Law of the Sea (UNCLOS) regime. Their position under general international law, however, remains unclear. In particular, the question of whether artificial islands can constitute sovereign territory remains unanswered. This article analyses the concept of territory in international law in the context of artificial islands, arguing that both the doctrine of territory and the strictures of UNCLOS do not prevent artificial islands as constituting territory, capable of sovereign appropriation: albeit territory not generating a territorial sea. Indeed, understanding artificial islands as potentially constituting territory allows for a more comprehensive positioning of such islands in regards to other general international law doctrines including the unlawful acquisition of territory.

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Centre: CIPL

Research theme: International Law, Legal History and Ethnology

Blockade? A Legal Assessment of the Maritime Interdiction of Yemen’s Ports

Author(s): Phillip Drew

In January 2015, the government of Abdrabbuh Mansour Hadi was ousted from power by Houthi rebels based in the northern highlands of Yemen. Initially forced to flee the country, Hadi soon returned, establishing a new government in the southern city of Aden. His return marked the commencement of the latest phase of Yemen’s perpetual civil war.

In what has often been referred to as the ‘Saudi-led blockade’, a coalition naval force, made up primarily of vessels from Gulf Cooperation Council states, has been enforcing a closure of Yemen’s waters and most of its ports. Yemen requires food imports to feed its population, and fuel imports to generate the electricity that it needs to keep its water plants operating. As a result of the naval interdiction operations, the civilian population of Yemen is in crisis. Approximately 20 million people require humanitarian assistance, and the country continues to struggle under the largest cholera epidemic in history.

This paper examines the legal bases for the current interdiction operations, both from the perspective of the law of naval warfare and the law of the sea. Finally it assesses the role that Security Council resolutions have played in the continuation of the ongoing humanitarian crisis and the role that the Security Council can play in supporting the delivery of humanitarian assistance to those in need.

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Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

Analysis of Australia's New Biosecurity Legislation

Author(s):

On 16 June 2016 the Biosecurity Act 2015 (Cth) came into force. This legislation replaced the Quarantine Act 1908 (Cth) which had regulated biosecurity in Australia for over a century. Impetus for the change arose from a number of reviews (the Nairn Report and later Beale Review) into Australia’s biosecurity system. These identified systemic flaws that were causing the country to be vulnerable to incursions of foreign pests and diseases through the administration of an archaic regulatory regime. The Biosecurity Act 2015 (Cth) includes new terminology, increased powers for the regulator and additional requirements for industry. The responsible agency, the Department of Agriculture and Water Resources (DAWR), has stated that the new biosecurity laws are designed to be user-friendly, to be flexible and responsive to changes in technology and future challenges, to remove cluttered and confusing sections of the Quarantine Act 1908 (Cth) and to achieve the difficult balance of making biosecurity regulation risk-based and equipping the regulator with strong enforcement powers whilst while also being economically prudent and supportive of increasing Australian trade and market access. This article column analyses such claims, including the short, and long term implications of providing biosecurity officers with two sets of authorising legislative powers and sharing the responsibility of biosecurity emergencies with the Department of Health.

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Research theme:

Corporatisation of Community Pharmacy and the Constitutional Prohibition of Civil Conscription for Medical Service Providers

Author(s):

This article examines recommendations from the Harper Competition Review recommending the opening up to corporate ownership of the community pharmacy sector in Australia. After studying the outcomes of similar proposals in other nations it examines whether s51 xxiiiA of the Australian Constitution provides a prohibition against such a reduction of the small business option for those pharmacists wishing to develop a pharmacy business in Australia. An analysis of the services provided by community pharmacists finds that services such as the provision of advice on the safe and efficacious use of medicine, the prescribing and administering of vaccinations, the treatment of minor wounds and ailments, the provision of pharmacist-only medicines, diabetes education form part of the core function of community pharmacists. Given that these services are fundamentally medical in nature, in their current role, community pharmacists as Commonwealth-regulated medical service providers for the purposes of s 51xxiiiA are thereby protected against Commonwealth policy or legislation facilitating civil conscription.

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Research theme:

Pakistan: The State of Liberal Democracy

Author(s): Moeen Cheema

2017 was the year of the Panama case. That one case overshadowed all the business in the Apex Court and has shaped public perception of the Court’s role. Just as in the previous electoral cycle, the Supreme Court has disqualified and dismissed a prime minister from office in the year leading up to the messy business of elections. Just as during the tenure of former Chief Justice Chaudhry, the Court has ended up in an overt tussle with a government that is determined to present itself as a victim of a “judicial coup.” The disqualification of the head of the largest political party in Pakistan in the run-up to an election has also raised anxieties about of a political court acting in collusion with the country’s powerful military intent on destabilizing the transitional democratic system.

The Panama case marks the Court’s return to the center of the political stage after a brief hiatus, a position it seems likely to occupy in the foreseeable future. The Supreme Court’s political role is not a recent development. Over the last three decades, the Supreme Court has evolved from a peripheral state institution to a key player mediating the balance of powers in a deeply divided and politically fragmented polity. However, the Court’s exercise of its judicial review jurisdiction appears to be “promiscuous” rather than principled. Despite the larger claims, the superior courts appear to have become “institutions of governance” and judicial review the mode of a “delicate and political process of balancing competing values and political aspirations” . . . providing “a workable modus vivendi” which in turn enables the courts to claim a seat at the table of high politics.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Two Steps Forward One Step Back: The Non-Linear Expansion of Judicial Power in Pakistan

Author(s): Moeen Cheema

Pakistan’s superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country’s postcolonial history. Although the political salience of the Supreme Court’s recent actions — including the disqualification of two elected prime ministers — has created the sense of a sudden and ahistorical judicialization of politics, the courts’ prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of “administrative law.” It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan’s superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law — i.e., the judicial review of executive action.

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Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

An Introduction to Maritime Crime in West Africa

Author(s): Phillip Drew

This paper examines the issue of maritime crime in the context of West Africa. Acknowledging that maritime crime is a growing threat to commercial shipping in the region, and to the economic health of West African countries, Dr. Drew assess the various factors that have thus far permitted maritime criminals in the region to operate with relative impunity. Recognising that a number of countries and international organisations have engaged in capacity building with the states of the GoG, Drew notes that lasting solutions to maritime crime require a broad approach that provides resources not only for the region’s military and law enforcement challenges, but also the underlying social problems that affect much of the continent.

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Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

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