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.

Withdrawing Treatment at the Direct or Indirect Request of Patients or in Their Best Interests: HNEAHS v. A; Brightwater CG v. Rossiter; and ACT v. JT

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In Hunter and New England Area Health Service v. A [2009] NSWSC 761; Brightwater Care Group (Inc) v. Rossiter [2009] WASC 229; and Australian Capital Territory v. JT [2009] ACTSC 105 Australian courts have recently considered the circumstances in which technically futile treatment may be withdrawn from patients at their direct or indirect request or purportedly in their best interests. The cases provide many valuable lessons about how norms of ethics, law and international human rights shape the regulatory framework of this area of healthcare in Australia.

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Should the United Nations Security Council Leave It To the Experts? The Governance and Accountability of UN Sanctions Monitoring

Author(s): Jeremy Farrall

Introduction: The chapters in this collection use the example of United Nations sanctions as a means to explore the questions of accountability and governance that arise when legal norms are applied with cross-boundary effect. The boundaries in question are both physical, in the sense of clearly delineated national borders, as well as conceptual, as with the traditional distinctions that are drawn between the domains of public and private law, and between international and domestic law.

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Centre: CIPL

Research theme: International Law

Shakespeare and Judgment: The Renewal of Law and Literature

Author(s): Desmond Manderson

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

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Centre: CLAH

Research theme: Legal Theory

Review Essay: Corporate Constitutionalism

Author(s): Peta Spender

The challenge for critical corporate law scholars is to provide an account of corporate law that accommodates responsiveness to the public interest. This involves defining a space for debate about both the public policy goals of corporate law and the regulatory mechanisms for achieving those goals. This task is a complex one because it involves recognising the insights of law and economics scholars, in particular, that corporations are at once important components of markets and constituted by those markets. A recent book and winner of the 2008 Hart Socio-Legal Book Prize, The Constitutional Corporation by Stephen Bottomley, provides just such an account of corporate law. This book provides a pragmatic account of corporate law which opens up corporate law to political concerns while acknowledging that corporate law is private in its orientation. This review of The Constitutional Corporation provides an overview of Bottomley’s analysis, locates his approach in broader theoretical debates about corporate law and examines the potential of the approach to develop systems of corporate social responsibility in order to meet impending global challenges such as climate change.

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Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy, The Legal Profession

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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.

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Centre: CIPL, CLAH, PEARL

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

Sustainability and the Law: Climate Change, Energy and Urban Issues

Author(s): James Prest

This chapter describes ACT laws which require action towards improved environmental sustainability. It examines provisions to reduce carbon emissions and energy use, improve energy, transport and water efficiency, and requirements to consider the environment in decision making.

The Chapter covers Planning and Development Act 2007 (ACT), Environment Protection Act 1997, Electricity (National Scheme) Act 1997, Utilities Act 2000, Weathering the Change: the ACT Climate Change Strategy 2007-2025, ACT Electricity (Greenhouse Gas Emissions) Act 2004, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), Electricity Feed-in (Renewable Energy Premium) Act 2008, Solar access law, sustainability provisions in ACT Planning Law, Energy efficiency law including the Building Act 2004, Energy Star Ratings including Nationwide House Energy Rating Scheme, Building Sustainability Index (BASIX), energy efficiency performance ratings (EER) including EER and rental properties, Efficiency of Appliances. The Chapter also covers Planning law as it relates to urban water issues including Catchment protection, Water tanks, Water Efficiency and Labelling Standards (WELS).

The Chapter concludes by arguing that the ACT has a number of provisions scattered throughout the statute book which address the question of environmental sustainability, primarily through energy ratings, water efficiency measures and planning controls. However the extent to which these provisions might be said to provide a ‘best practice’ systematic and integrated framework for the attainment of improved levels of sustainability is certainly debateable. There is no overarching climate change response legislation, nor is there an overarching Sustainability Act which might require government decisions across portfolios to be made having regard to the principles of ESD.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools

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Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.

With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.

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Centre: CCL, CIPL, LGDI

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

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.

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Centre: CIPL, CLAH, PEARL

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

Law for the Sea's Biological Diversity

Author(s): Donald Anton

This article addresses some of the complex legal issues raised by the sustainable use of marine biological diversity in areas beyond national jurisdiction and the deficiencies in its existing legal protection. The importance ofsuch an undertaking was emphasised by the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) in its first meeting (COP I), through its selection of marine and coastal biological diversity as the first major ecosystem theme to be addressed as part of its medium-term programme of work. Realistically, effective conservation and sustainable use of marine biological diversity in areas solely or partially outside of national jurisdiction will require the further "cooperation" of all states. There are a number of alternative ways forward each with its advantages and disadvantages. Regardless of the alternative selected, a number of common and familiar legal issues will have to be faced and there are risks. Politically, it will be essentially to avoid the intractable problems that arose in connection with the negotiation of the normative regime intended to regulate the exploitation of mineral resources in the LOS Convention. Unworkable law is little better than no law.

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False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica

Author(s): Donald Anton

The recent assertion of maritime jurisdiction by Australian courts over a Japanese whaling company for acts contrary to Australian law in the Antarctic Southern Ocean is alarming. Private litigation, based on an internationally disputed claim to sovereignty over Antarctic territory and a further contested claim to an EEZ appurtenant to that territory, ought not to serve as a proxy for cooperative (and hopefully effective) international management of the Antarctic environment. The big danger is that if other states follow Australia's lead in claiming sovereign rights and exercising attendant jurisdiction the chances of natural resource over-exploitation and environmental harm in the Antarctic is increased. It will, I believe, in the long run exacerbate the likelihood of a scramble for important, scarce and economically viable resources.

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Introductory Note to Intergovernmental Panel on Climate Change, Fourth Assessment Synopsis Report Summary for Policy Makers and the Bali Action Plan

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This note sets out the background to the Bali Action Plan, including the IPCC Fourth Assessment Synopsis Report Summary for Policymakers. It outlines the key features of both documents. The Note appears in 47 International Legal Materials 94 (2008).

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Is the Environment a Human Rights Issue?

Author(s): Donald Anton

The following is an introductory chapter from a forthcoming teaching text on Human Rights and the Environment by Donald K. Anton & Dinah Shelton. Feedback is welcome.

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Australian Jurisdiction and Whales in Antarctica: Why the Australian Whale Sanctuary in Antarctic Waters Does Not Pass International Legal Muster and is Also a Bad Idea as Applied to Non-Nationals

Author(s): Donald Anton

This article examines the international legality of the projection of Australian adjudicative and enforcement jurisdiction against non-nationals in the Southern Ocean forming part the Antarctic Treaty Area. It sets out the Australian legal foundations on which Australian jurisdiction is currently being exercised for alleged breaches of Australian law applying to the Australian Antarctic Whale Sanctuary in the HSI v. Kyodo case. It then evaluates the exercise of Australian jurisdiction in light of the applicable international law. It accepts arguendo the factual basis of Australia's territorial claim in Antarctica, but nevertheless concludes that the extension of Australian jurisdiction over non-nationals in the purported Antarctic Australian Whale Sanctuary contravenes conventional and customary international law. In light of this conclusion, the article details the nature and importance of the ATS in order to highlight what is at stake by the challenged posed by the assertion of Australian jurisdiction. It then presents reasons why (in addition to illegality) the projection of Australian prescriptive, adjudicative and enforcement jurisdiction in what almost all other states consider the high seas off Antarctica is an unsound idea. The article concludes by arguing that the current Australian law conferring jurisdiction ought to be repealed.

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Nuclear Weapons - The Lawyer's Interest

Author(s): Donald Anton

In the spirit of ICJ Justice Christy Weeramantry's look at Nuclear Weapons and Scientific Responsibility (1987), this short comment considers the interests of lawyers in the eventual elimination of nuclear weapons.

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Memorandum of 6 August 1995 Addressed to President Jacques Chirac Regarding the Resumption of Nuclear Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the "shaming" effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was "irrevocable" almost from the outset, the lawyers hoped to provide a "face-saving" and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that "the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities". Foreign Minister Evans states that "France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm". The Foreign Minister states that "as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll". "This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm," Senator Evans emphasises.

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Letter of 6 August 1995 to President Jacques Chirac Regarding the Resumption of Nuclear Weapons Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the shaming effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was irrevocable almost from the outset, the lawyers hoped to provide a face-saving and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities. Foreign Minister Evans states that France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm. The Foreign Minister states that as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll. This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm, Senator Evans emphasises.

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Nationalizing Environmental Protection in Australia: The International Dimensions

Author(s): Donald Anton

A national approach to environmental protection is the most effective way for Australia to protect its own environment and to contribute to the common cause of global environmental protection. The centerpiece of this approach should be a federal environmental protection authority (EPA), able to deal with the issues which arise on a transboundary basis, both nationally and internationally. However, the powers of a national agency will need to be tailored to avoid conflict within the system of cooperative federalism in Australia.

This article reviews constitutional tensions between federal and state government as they relate to several of the major international environmental conventions that bind Australia. The authors conclude that a federal authority, committed to enforcing Australia's international agreements to protect the environment, is the most effective means of addressing worldwide concern with the state of the natural world.

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Truth, Justice and the Australian Way About 'Open Standing': Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd

Author(s): Donald Anton

In 1998, the constitutionality of the 'open standing' provisions contained in the Trade Practices Act 1974 (Cth) was directly challenged in the High Court for the first time since their enactment.

This issue came to a head in 1998, when a community group, Truth About Motorways (TAM), brought suit under the TPA against Macquarie Infrastructure Investment Management Ltd (MIIM). TAM was concerned about the publication and distribution of a prospectus produced by MIIM in order to attract investor for units in an investment trust proposing to invest in the construction and private ownership of a toll road in Sydney. TAM alleged that claims made in the prospectus about anticipated volumes of traffic on the road constituted misleading conduct within the meaning of section 52 of the TPA. Significantly, TAM neither claimed a special interest in the subject matter of the dispute nor that it had suffered any loss or damage on account of MIIM's conduct. It relied instead exclusively on the open standing provisions contained in sections 80 and 163A of the TPA. MIIM filed a defence pleading that TAM had no standing to maintain an action against it. MIIM argued that so far as §§ 80 and 163A of the TPA purported to confer standing on TAM they were constitutionally invalid.

In March 2000, the Australian High Court considered MIIM's constitutional claim. The detail of MIIM's argument was succinctly summarized by Chief Justice Gleeson and Justice McHugh in a joint judgment.

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