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.

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Towards Trauma-Informed Legal Practice: A Review

Author(s): Colin James

Vicarious or secondary trauma experience has always been part of legal practice although many do not acknowledge the risk it can have on the mental health, well-being and performance of legal professionals. The listening to, observing and then detailing of traumatic events for the purposes of legal process in some cases may harm lawyers who need to work closely with clients, victims and witnesses. This article reviews the research on trauma in many areas of professional human services that could inform and improve our understanding of legal practice. It examines the discursive history of trauma and recent studies on lawyer well-being, before discussing the controversies about recognising vicarious trauma and the stigma against mental health concerns in the legal profession. The article concludes by reviewing options to assist law firms in considering trauma-informed policy, practices and supervision strategies and to help individual lawyers recognise the value of self-care.

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The Pandemic Paradox in International Law

Author(s): Jeremy Farrall, Imogen Saunders

This article examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are most needed to fight COVID-19. The “patriotism paradox” is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding non-citizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

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Centre: CIPL

Research theme: International Law, Legal History and Ethnology

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Backlash against a Rules-based International Human Rights Order? An Australian Perspective

Author(s): Jolyon Ford

This article engages with the question of whether we can identify a recent populist political ‘backlash’ within some Western democracies against the institutions, instruments and even the ideas of the multilateral (United Nations and treaty-based) human rights system. An associated question concerns what the implications of any such phenomenon might be for the universalist human rights system (or at least Australia’s participation therein), and perhaps the implications for the wider global legal order of which the human rights project has, for decades now, been such an important part. A second question-bundle is whether we can discern signs recently that Australia may be one of those ‘backlash’ states, and what systemic implications this may have for Australia’s oft-repeated fidelity to, and reliance upon, the international rules-based order. Sitting above or behind these questions is the broader issue of whether the concept of ‘backlash’ is useful at all in explaining or analysing recent developments, and/or what modifications or qualifiers it might need. This article attempts to address these questions, focussing first on exploring ways to approach, unpack refine or re-frame the ‘backlash’ concept. It then takes the resulting frame(s) to provide a general overview of recent Australian practice and rhetoric. This is so as to advance a useful characterisation of Australia’s conduct, even if it does not in a ‘Yes/No sense’ meet Sunstein’s definition of systemic-level ‘backlash’ intended to reject a legal order and remove its legal force.

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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

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Navigating the Backlash against Global Law and Institutions

Author(s): Jeremy Farrall, Jolyon Ford, Imogen Saunders

This article considers the recent ‘Backlash’ against global norms and institutions fuelled by various contemporary political developments within and between states. Understanding the shape, significance and drivers of this phenomenon better is a pre-requisite to developing and analysing possible responses by Australia and other states. The recent rise of populism and ‘illiberal democracy’ especially within major Western democracies has challenged the longstanding and widespread commitment of those states to the rules-based order. These phenomena have also eroded the traditional global leadership, in multilateral forums, of key powers including UN permanent members the United States and the United Kingdom. The populations of these and other states have responded to perceptions of economic and political disempowerment by pressuring political representatives to focus their energies domestically. In order both to appeal and respond to domestic political forces, leaders in these states have sought to target or sometimes scapegoat the international institutions that have hitherto been so useful to their foreign policy agenda. This article examines the consequences of understanding the current populist moment as part of a Backlash against global law and institutions and the ramifications of the Backlash frame for international peace and security. It also considers the implications of the Backlash frame for the international human rights system, the impact of the turn inward for global trade and finance and the Backlash against environmental norms.

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Centre: CCL, CIPL, LGDI

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

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Navigating the Backlash: Re-integrating WTO and Public International Law?

Author(s): Imogen Saunders

The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?

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Centre: CIPL

Research theme: International Law, Legal History and Ethnology

Public Finance and Parliamentary Constitutionalism

Public Finance and Parliamentary Constitutionalism

Author(s): Will Bateman

Public Finance and Parliamentary Constitutionalism analyses constitutionalism and public finance (tax, expenditure, audit, sovereign borrowing and monetary finance) in Anglophone parliamentary systems of government. The book surveys the history of public finance law in the UK, its export throughout the British Empire, and its entrenchment in Commonwealth constitutions. It explains how modern constitutionalism was shaped by the financial impact of warfare, welfare-state programs and the growth of central banking. It then provides a case study analysis of the impact of economic condition on governments' financial behaviour, focusing on the UK's and Australia's responses to the financial crisis, and the judiciary's position vis-à-vis the state's financial powers. Throughout, it questions orthodox accounts of financial constitutionalism (particularly the views of A. V. Dicey) and the democratic legitimacy of public finance. Currently ignored aspects of government behaviour are analysed in-depth, particularly the constitutional role of central banks and sovereign debt markets.

> Provides the first constitutional analysis of public finance law and practice in UK and Commonwealth jurisdictions

> Provides an historical treatment of legal and constitutional dimensions of public finance in British and Commonwealth jurisdictions

> Accessibly explains how government, law and economic conditions interact before, during and after moments of economic crisis, using the UK and Australia as examples

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Centre: CIPL

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

Who Has the Power? A Critical Perspective on Space Governance and New Entrants to the Space Sector

Author(s): Cassandra Steer

Space law and space politics are determined by the same big players as terrestrial geopolitics, and therefore in asking how to govern space, we have to take the current realities of international relations and international law into account. How are new entrants interacting with the international space law regime inherited from the Cold War, and what kinds of new governance structures might we need to deal with the increasing number and kinds of participants emerging in the space sector? I take a critical perspective, drawing on feminist legal theory and Third World Perspectives on International Law (TWAIL) to pose further questions: who is exercising power over the development of new legal and governance norms in space and who is excluded from this? I argue that, because we are all so dependent on space for our contemporary existence, 21st century space governance needs to take into account more than the interests of the biggest players.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia

Author(s):

The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales [2015] HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

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Judicial Review’s Exclusion by Privative Clauses: Dead or Just Resting?

Author(s): Greg Weeks

The privative clause is dead – or so we are told. Nonetheless, it remains a topic of conversation and judicial attention in both Australia and England, albeit for somewhat different reasons. The Australian approach to privative clauses is substantially coloured by the relevance attached to the concept of jurisdictional error and is therefore distinctly constitutional in its outlook. The English courts have long ago dismissed the role of jurisdictional error and, although they continue to rely on the precedent of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, do so while rejecting the reasoning which informs the use of that case in Australia. This article considers the approaches taken in both jurisdictions and attempts to set out the continuing relevance of the privative clause in Australia.

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Centre: CIPL

Research theme: Administrative Law

Trust and Distrust in Digital Economies

Trust and Distrust in Digital Economies

Author(s): Philippa Ryan

In digital economies, the Internet enables the "platformisation" of everything. Big technology companies and mobile apps are running mega marketplaces, supported by seamless online payments systems. This rapidly expanding ecosystem is fueled by data. Meanwhile, perceptions of the global financial crisis, data breaches, disinformation and the manipulation of political sentiment have combined to create a modern trust crisis. A lack of trust constrains commerce, particularly in terms of consumer protection and investment. Big data, artificial intelligence, automated algorithms and blockchain technology offer new solutions and risks.

Trust in our legal systems depends on certainty, consistency, and enforceability of the law. However, regulatory and remedial gaps exist because the law has not kept up with technology. This work explores the role of competency and good faith, in the creation of social and legal relationships of trust; and the need for governance transparency and human accountability to combat distrust, particularly in digital economies.

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Research theme: Law and Technology

Student Wellbeing Through Teacher Wellbeing

Student Wellbeing Through Teacher Wellbeing: A Study with Law Teachers in the UK and Australia

Author(s): Colin James

Research confirms law students and lawyers in the US, Australia and more recently in the UK are prone to symptoms related to stress and anxiety disproportionately to other professions. In response, the legal profession and legal academy in Australia and the UK have created Wellness Networks to encourage and facilitate research and disseminate ideas and strategies that might help law students and lawyers to thrive. This project builds on that research through a series of surveys of law teachers in the UK and Australia on the presumption that law teachers are in a strong position to influence their students not only about legal matters, but on developing attitudes and practices that will help them to survive and thrive as lawyers. The comparative analysis reveals several differences, but also many similarities with law teachers in both countries reporting negative effects from neoliberal pressures on legal education programs that impact their wellbeing, performance as teachers and ability to adequately respond to student concerns.

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Towards the Uberisation of Legal Practice

Author(s): Margaret Thornton

Uber and Airbnb signify new ways of working and doing business by facilitating direct access to providers through new digitalised platforms. The gig economy is also beginning to percolate into legal practice through what is colloquially known as NewLaw. Eschewing plush offices, permanent staff and the rigidity of time billing, NewLaw offers cheaper services to clients to compete more effectively with traditional law firms. For individual lawyers, autonomy, flexibility, a balanced life, well-being and even happiness are the claimed benefits. The downside appears that NewLaw favours senior and experienced lawyers while disproportionately affecting recent graduates. This article draws on interviews with lawyers in Australian and English NewLaw firms to evaluate the pros and cons of NewLaw.

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Centre: CIPL, CLAH, PEARL

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

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Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the ‘E10’). A common understanding of Security Council dynamics accords predominance to the five permanent members (the ‘P5’), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Social Justice, Law, Governance and Development, Military & Security Law, Regulatory Law and Policy

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Values. The Flip-Side of the Wellbeing Coin

Author(s): Vivien Holmes

Both ancient philosophers and modern psychologists assure us that our happiness and our values are inextricably linked: true happiness and wellbeing come not from the mere pursuit of pleasure, but from living in accordance with values that give us a sense of meaning and connection with others and self. This chapter explores the relationship between happiness (defined as subjective wellbeing) and values, and the implications of this relationship for law students and lawyers, law schools and legal workplaces. Research shows that the more we enact, rather than just subscribe to, certain values, the greater will be our wellbeing. Further, the psychological factors that influence whether lawyers experience wellbeing also influence their ethical decision-making and level of professionalism. We know that law school curricula affect student wellbeing; law schools also play a critical role in supporting (or inhibiting) the development of professional values and in teaching skills to enable students and future lawyers to live out those values. After law school, workplace culture can profoundly influence our wellbeing, while also influencing whether we are able to express/enact our professional values. Evidence suggests that effective regulation can encourage legal practices to improve their ethical cultures, which in turn could improve wellbeing. We need as a profession to attend to this connection between wellbeing and values; to fulfil its role in society, the legal profession needs to be well, which means being deeply connected to values.

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Centre: CIPL

Research theme: Legal Education, The Legal Profession

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When Is the Advancement of Religion Not a Charitable Purpose?

Author(s): Pauline Ridge

This article addresses the question of why religious groups receive charitable status in relation to religious activities by considering when the current law does not grant charitable status to purposes that advance religion. The jurisdictional focus is upon Australian law, with some reference to other jurisdictions whose law also derives from the English common law of charity. After an overview of the charity law landscape in Australia, the article explains and critically evaluates the grounds upon which charitable status may be refused to purposes that advance religion. The article then considers two considerations that have emerged in twenty first century charity law and that are relevant to the charitable status of religious groups. These concern human rights, particularly the right to freedom of religion, and the use of charity law to regulate religious activity.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits

Author(s): Esme Shirlow

This Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, whilst also considering their objectives and consequences. The analysis indicates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration. Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. An agenda that seeks to identify and enact effective reforms to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, then, it is vital that States, arbitral institutions, and other stakeholders confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives. The contours of the discussion in this Chapter hold importance for reform agendas in other fields of international arbitration. It highlights the importance of clarifying what is being proposed, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.

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Centre: CIPL

Research theme: International Law

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Jurisdictional Error As Conceptual Totem

Author(s): Leighton McDonald

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Legal Theory

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The Creation of Australian Administrative Law: The Constitution and Its Judicial Gate-Keepers

Author(s): Greg Weeks

For a long time judicial review in Australia was little more than a carbon copy of its English equivalent. In the period before the various Australian states became part of a unified federal nation, judicial review occurred within the inherent supervisory jurisdiction of the various Supreme Courts of those individual colonies and proceeded in a manner similar to that of English courts exercising inherent supervisory jurisdiction. The Australian Constitution is now the defining feature and dominant force of our judicial review doctrine. The key feature of the Australian Constitution that has enabled the recognition and entrenchment of judicial review of administrative action is the express creation and entrenchment of the courts. The express recognition and protection of a selection of the judicial remedies has proved equally important because the constitutional mention of some of the traditional remedies of judicial review has provided the foundation for the courts to entrench by implication that which necessarily precedes the issue of those remedies. While these and other important elements of the Australian Constitution have enabled the development of constitutionally protected avenues of supervisory review, this same constitutional foundation has also provided the source of judicial review principles that increasingly differ from their early English heritage. Many parallels between English and Australian principles remain and the one we discuss about natural justice suggests that, as happens within so many families, Australian judicial review can unwittingly replicate the mistakes of its English parent.

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Centre: CIPL

Research theme: Administrative Law

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Rethinking the Law on Shareholder-Initiated Resolutions at Company General Meetings

Author(s): Stephen Bottomley

Recent concerns about the need for improved corporate accountability raise questions about the role of shareholders in corporate governance. One aspect of these discussions is the capacity of shareholders in general meetings to propose non-binding advisory resolutions concerning governance or social matters. Since Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame in 1906, courts have held that if a company’s constitution gives directors the power of company management, shareholders cannot interfere with the exercise of that power. The Federal Court affirmed this in Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia. This paper re-examines the case law, particularly in its application to advisory resolutions, and recommends the introduction of a broad statutory authority for non-binding advisory resolutions. The paper argues that this is an important step towards improved corporate accountability and responsible shareholder engagement.

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Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

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The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

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Centre: CIPL, CLAH, PEARL

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

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