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.

Australian Senate Committee Report on Transvaginal Mesh Devices

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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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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

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

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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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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.

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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

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

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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

Australian Renewable Energy Law: Carbon Lock-In or Clean Energy Transition? The Pursuit of Policy Stability and Energy Security at Higher Levels of Renewable Generation

Author(s): James Prest

This article critically analyses recent developments in Australia’s renewable energy law and policy. It identifies seven retrograde steps taken in energy and climate law in Australia in the last five years. Barriers to clean energy law - in the form of recurring narratives employed against the rise of renewable energy across Australia - are examined. Increased levels of renewable energy are portrayed by opponents as a threat to the security and reliability of electricity supply. Yet, the nation is currently experiencing a major renewable energy investment boom, supported by regional policy initiatives that are driving innovation, most recently in energy storage.

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

Overcoming the Invisible Hurdles to Justice for Young People the Final Research and Evaluation Report of the Invisible Hurdles Project: Integrated Justice Practice - Towards Better Outcomes for Young People Experiencing Family Violence in North East Victo

Author(s): Elizabeth Curran

The three-year “Invisible Hurdles Project” was trialled in southern NSW and northern Victoria and successfully broke down intractable mistrust of lawyers and provided legal help to people who usually can’t be reached.

The pilot saw lawyers embed themselves into youth, health and other services reaching 101 people with 198 legal matters which may not have come to light otherwise.

Associate Professor Liz Curran, led the research and evaluation of the project with Pamela Taylor-Barnett assisting - both of ANU School of Legal Practice.

The pilot saw the Hume Riverina Community Legal Service (HRCLS) provided lawyers free of charge who embedded themselves into three partner organisations: The Albury Wodonga Aboriginal Health Service (AWAHS), a school for vulnerable young people, Wodonga Flexible Learning Centre and North East Support and Action for Youth (NESAY).

The report makes many findings and recommendations including The data revealed that non-legal staff responding to clients were also initially distrustful of the lawyers, but now find them a responsive ally which has boosted their capacity to respond effectively. It’s had the knock-on effect of reducing stress and anxiety in themselves and their clients. It can inform other models, policy and funding frameworks as well as future service delivery in multi-disciplinary practices including, health justice partnerships.

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Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

The Future of Australia's Federal Renewable Energy Law

Author(s): James Prest

This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

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

Social Status: The Last Bastion of Discrimination

Author(s): Margaret Thornton

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.

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Centre: CIPL, CLAH, PEARL

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

Social Security Data-Matching and 'Robodebts'

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This work in progress paper discusses problems encountered with social security data-matching in relation to employment history and the use of "robodebts" in relation to recovery of social security overpayments in Australia.

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Beyond Transnational Advocacy: Lessons from Engagement of Myanmar Indigenous Peoples with the UN Human Rights Council Universal Periodic Review

Author(s): Jonathan Liljeblad

On July 21, 2015, the Coalition of Indigenous Peoples in Myanmar/Burma (CIPM), a group representing 24 indigenous rights organizations in Myanmar, announced they were submitting a report to the Universal Periodic Review (UPR) session on Myanmar. The use of the UPR represents an attempt by Myanmar’s indigenous groups to address a variety of issues not traditionally associated with human rights, among them: environmental grievances associated with alleged government seizure of land, deforestation, pollution, and suppression of land-use rights.

The use of the UPR also illustrates an indigenous strategy of reaching up to an international level in order to address problems at a local one: the CIPM resorted to the UPR in hopes of mobilizing pressure to change the behavior of the Myanmar government. This article explores the experiences of the CIPM with the UPR to draw lessons for other groups that seek to use the UPR to advance their interests.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

Equal Treatment and Non-Discrimination through the Functionalist Lens

Author(s): Amelia Simpson

The Australian Constitution invokes the ideas of equal treatment and discrimination in a number of places, as a direct textual feature of some provisions and also at times as an element of implications drawn from constitutional text and structure. This chapter will explore these instances through a functionalist lens and assess whether, and when, the High Court has produced doctrine that is broadly consistent with the dictates of a functionalist interpretative approach.

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Centre: CIPL

Research theme: Constitutional Law and Theory

National Human Rights Institutions (NHRIs) and the Hazards of Being the Nexus between Global and Local: A Case Study of the Myanmar National Human Rights Commission (MNHRC) in the Maelstrom of Public Controversy

Author(s): Jonathan Liljeblad

National Human Rights Institutions (NHRIs), as set forth in the 1993 Paris Principles, are expected to be independent bodies that promote and monitor state implementation of international human rights standards. In such a role, an individual NHRI bridges the gap between “international human rights obligations and actual enjoyment of human rights on the ground” and thereby operates as a nexus between a global human rights system and local conditions. A location at the nexus has the potential to offer opportunities to exercise powers as an intermediary on behalf of human rights in terms of enabling engagement between global and local levels. The analysis, however, draws upon the experiences of the Myanmar National Human Rights Commission (MNHRC) to assert that there are limits for institutions at the nexus between global and local. Using a public controversy from 2016 that questioned the legitimacy of the MNHRC and threatened its existence as an NHRI, the analysis seeks to improve understanding of the risks facing NHRIs and add insight into the ways contextual politics challenge expectations for NHRIs to operate as human rights intermediaries.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

Introduction: Fusion and Creation

Author(s): Ron Levy

Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume serves as the international reference point on deliberation as a foundational value in constitutional law, and is an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.

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Centre: CIPL, DGAL

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

Legislative Pitfalls in Mandating Shared Parenting in Family Law Disputes: An Australian Experience

Author(s): Colin James

Since the Family Law Act was introduced in Australia in 1976, it has endured many amendments with legislators trying to keep the law aligned with their perception of community values. In 2006 the Australian government introduced two ‘objects and principles’ (then s.60B), which seemed innocuous by responding to community concerns, although from opposing sources. The ‘men’s movement’ had complained for years that the Family Court was biased because in parenting disputes it awarded child custody more often to mothers than to fathers. On the other hand, many lawyers and researchers argued that children would be at risk if the Family Court increased the involvement of fathers in contested disputes because of the high incidence of domestic violence and child abuse at the hands of men. The legislators attempted a compromise, a marriage-of-opposites that was doomed to fail and fail it did. In attempting to shift the focus in disputes about children from ‘legal custody’ to ‘shared parenting’, and to satisfy a narrow-interest lobby group, legislators in Australia failed to reflect contemporary community attitudes or to accept research-based, best practice in resolving parenting disputes.

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Blindness Visible: Law, Time and Bruegel's Justice

Author(s): Desmond Manderson

Printed in 1559, Bruegel's 'Justicia' appears at first glance to be a spatial representation of law—a snapshot, a mis en scène. But it is essentially about time. Bruegel's image overlays three different perspectives on the hitherto unexplored relationship between time, responsibility, and legal authority, revealing the hidden anachronism of law. At the same time, law is shown not merely to be a concept or a symbolic form, but a physical practice engraved in the flesh of those who carry it out and suffer it. Justicia takes as its method art's anachronic discourse and power of embodiment; and presents as its thesis the role of anachronic discourse and corporeal experience to the law. These insights were pertinent to the situation of law in the sixteenth century, but they are of far broader significance than that.

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Centre: CLAH

Research theme: Legal Theory

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