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.

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

Author(s): Molly Townes O'Brien

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

Author(s): Molly Townes O'Brien

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Australia's National Environmental Legislation: A Response to Early

Author(s): Andrew Macintosh

This article provides a critique of a paper by Gerard Early on the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Early’s article presents the EPBC Act as world best practice environmental impact assessment (EIA) legislation and argues that it has produced significant improvements in environmental outcomes. The evidence suggests otherwise. The EPBC Act is deficient in a number of respects, particularly in relation to the structure of the EIA regime and listing processes concerning threatened biodiversity and heritage areas. This article outlines defects in Early’s analysis and in the EPBC Act more generally.

Read on SSRN

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Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Environment Protection and Biodiversity Conservation Act 1999 (CTH): An Evaluation of its Cost-Effectiveness

Author(s): Andrew Macintosh

This article outlines the results of a broad cost-effectiveness analysis of the federal environmental impact assessment (EIA) regime under Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Statistics on the operation of the EIA regime are reviewed and an analysis of the regime’s effectiveness in dealing with Australia’s main environmental threats is provided. Consideration is also given to any indirect benefits the regime may have generated. The identified environmental achievements of the EIA regime over the period July 2000 to 30 June 2008 are compared to its administration costs, which are estimated at $135 million – $220 million. The conclusion is reached that over the study period the EIA regime generated minor improvements in environmental outcomes at moderate to high cost.

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Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Constitutional Limits on Federal Legislation Practically Compelling Medical Employment

Author(s):

A recent decision by the High Court of Australia (Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573) (the PSR case) has not only clarified the scope of the Australian constitutional prohibition on “any form of civil conscription” in relation to federal legislation concerning medical or dental services (s 51xxiiiA), but has highlighted its importance as a constitutional guarantee ensuring the mixed State- federal and public-private nature of medical service delivery in Australia. Previous decisions of the High Court clarified that the prohibition does not prevent federal laws regulating the manner in which medical services are provided. The PSR case determined that the anti-overservicing provisions directed at bulk-billing general practitioners under Pt VAA of the Health Insurance Act 1973 (Cth) did not offend the prohibition. Importantly, the High Court also indicated that the s 51(xxiiiA) civil conscription guarantee should be construed widely and would invalidate federal laws requiring providers of medical and dental services (either expressly or by practical compulsion) to work for the federal government or any specified State, agency or private industrial employer. This decision is likely to restrict the capacity of any future federal government to restructure the Australian health care system, eg by implementing recommendations from the National Health and Hospitals Reform Commission for either federal government or private corporate control of presently State-run public hospitals. This decision confirms that s 51xxiiiA operates as a constitutional prohibition against the establishment in Australia of United States-style managed care corporate-controlled delivery of medical services and supports the public option in hospital care.

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Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Wages of Sin: Compensation for Indigenous Workers

Author(s): Margaret Thornton

After two centuries of exploitation, Indigenous people in Australia are now engaged in a struggle to recover what has come to be known as ‘stolen wages’, although there is uncertainty as to the best legal avenue. This article overviews the course of the struggle, which began in the industrial arena but moved to the discrimination arena, where modest damages have been awarded, although academic commentary favours breach of fiduciary duty or breach of trust. Drawing on the Kantian binary of active and passive citizens, the authors argue that the initiation of civil action represents an important site of active citizenship. Viewed in this light, it is argued that breach of fiduciary duty should be rejected, if the time of the misappropriation allows it, as it instantiates the passivity and inequality associated with the colonial era, while breach of trust entails monumental problems of proof. Further recourse to anti-discrimination legislation is advocated because its theoretical framework is based on equality - a foundational premise of citizenship.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Constitutional Adjudication and Democracy: One Voice or Many?

Author(s):

Charles Evans Hughes’ pithy remark in 1907 that ‘the Constitution is what the judges say it is’ sparked a vigorous, and probably never-ending, debate about the tension between the objective and subjective elements in judicial law-making. In contested cases of constitutional interpretation in a multi-member final appellate court, can there be one ‘right’ view, produced by the objective application of an external standard, or is the prevailing view merely the accidental consequence of the aggregation of individual subjective opinion to form a view that happens to have majority support?

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Accreditation: Safety, Risk, and Good Business

Author(s):

Good morning everyone, and thank you for inviting me to your Convention this year. I have had a connection with the trucking industry for over 25 years now, but very much from the outside, so I do not in any way hold myself out as an expert. I hope you will take my remarks merely as those of an interested observer, who cares about improving the industry in the interest of everyone who makes their livelihood from it, and everyone who is served by it - in other words, in the interest of all Australians. I hope also that the benefit of being an outsider, in being able to stand back a little from the day-to-day detail of how the industry operates, will more than make up for not being immersed in that detail.

This will come to you way out of left field, but my thoughts about what to say to you have been stimulated by the collapse of democracy in Fiji. Having grabbed your attention with that observation, in this first session of the day, let me answer what you are all thinking: what on earth is he talking about? Well, I found myself pondering the question, why does this happen in Fiji and not in Australia? I am sure there are many reasons, but let me mention just two.

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The Role of Law Schools in the Promotion of Human Rights

Author(s):

One of the IALS conference topics is, ‘educating our students for what?’

Not too long ago, the answer in Australia would have been relatively easy. We were educating our students for legal practice in the local jurisdiction. Let me comment briefly on both of those components – legal practice and the local jurisdiction – the latter first.

As US lawyers will readily understand, educating lawyers for practice in the local jurisdiction in a federal system, as you have here and we have in Australia, necessarily entailed a serious lack of national mobility for lawyers. But, in the last decade in particular, our system in Australia has been transformed by moving effectively to a national legal profession. Admission to practice in any one jurisdiction now carries with it the right to admission to practice in any other jurisdiction.

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Introduction: Filling or Falling between the Cracks? Law’s Potential

Author(s): Kim Rubenstein, Jeremy Farrall

This is the introduction to the first volume of the new Cambridge University Press series Connecting International law with Public law.

The first volume is titled Sanctions, Accountability and Governance in a Globalised World and is edited by the authors of this introduction and explores fascinating questions that arise when legal regimes collide. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. While there is some scholarship developing in the area of global administrative law, and some scholars have touched upon the principles relevant to both disciplines, the publications to date contain only a subset of the concept underpinning this book. This first book aims to broaden understanding of how public and international law intersect. It is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. What can public lawyers bring to international law and what can international lawyers bring to public law? What are the common interests? Which legal principles cross the international law/domestic public law divide and which principles are not transferable? What tensions emerge from bringing the disciplines together? Are these tensions inherent in law as a discipline as a whole or are they peculiar to law’s sub disciplines? Can we ultimately only fill in or fall between the cracks, or is there some greater potential for law in the engagement?

Read on SSRN

Centre: CIPL, CLAH

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

Liar's Fall a Lesson for Us All

Author(s):

Former Federal Court Judge Marcus Einfeld was taken from the NSW Supreme Court into custody last Friday, after being sentenced by Justice Bruce James to a two-year non-parol period for perjury and perverting the course of justice.

Whilst clearly these charges and the court's sentence are very serious, the circumstances that led up to them are almost too crazy for many of us to believe. As the facts now show, throughout 2006 and 2007, Einfeld lied about driving a car that was caught speeding on camera.

The lies were contradictory, childlike and often hard to believe. Yet isn't one of the first lessons all children learn thou shalt not lie? If so, then why did this experienced, well regarded, former Australian judge lie to avoid a small speeding fine? Why did he not realise that adding one lie upon another and another would end up burying him in a deep and hopeless hole such as the one he is now in?

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Who’s Responsible? Justiciability of Private and Political Decisions

Author(s): Daniel Stewart

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (‘AWB’) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government’s responsibility for the circumstances leading to that inquiry. The Australian government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action, and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Read on SSRN

Centre: CCL, CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

‘A Delicate Business’: Did AWB's Kickbacks to Iraq under the United Nations Oil-For-Food Programme Constitute a Violation of Australia's International Obligations?

Author(s):

The object of this chapter is to show that Australia did not violate its international legal obligations as a result of the kickbacks by AWB to the former Iraqi regime under the United Nations Food-For-Oil Programme (OFFP), but that the AWB scandal showed systemic failures in effective domestic governance and the appropriate conduct of Australia's foreign policy, compounded by a failure of accountability when the AWB scandal was exposed.

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At the Intersection of International and Municipal Law: The Case of Commissioner Cole and the Wheat Export Authority

Author(s): Anne McNaughton

The global economy is becoming increasingly integrated thanks to developments in technology, the reduction of trade barriers and the increase in direct foreign investment, particularly in developing states. Law, in the broadest sense of that term, has not integrated in the same way. This is, in our view, demonstrated starkly by the Oil-for-Food scandal. The transference of obligation from international to domestic legal systems has been settled for a long time. Ascertaining at what level responsibility attaches for monitoring compliance, investigating cases of apparent non-compliance and, where necessary, imposing sanctions remains unsettled, as this case study demonstrates.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law, Governance and Development

What is the Right Thing to Do?: Reflections on the AWB Scandal and Legal Ethics

Author(s): Vivien Holmes

The Cole Inquiry resulted in a five volume report that extensively details the history of AWB Ltd’s dealings with Iraq under the Oil-for-Food Programme (OFFP). In this chapter, I reflect on the role AWB in-house lawyers played in the AWB-Iraq story, exploring how lawyers who are too closely identified with the perceived interests of the client can step over the ethical (even if not the criminal) line, and work against both the client’s best interests and the public interest. I reflect also on the AWB lawyers’ role as counsel for a corporation whose actions had global ramifications. Legal practice today has global reach and I discuss the implications of this for our professional ethical horizons.

Read on SSRN

Centre: CIPL

Research theme: Legal Education, The Legal Profession

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, LGDI

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, Law and Gender, Law and Psychology, Law and Social Justice, Law, Governance and Development, Legal History and Ethnology, Migration and Movement of Peoples, Military & Security Law

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