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.

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

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Centre: CIPL, CLAH, PEARL

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

The New Corporate Law

Author(s): Stephen Bottomley

Corporate social responsibility is back on the corporate law reform agenda. From an Australian perspective, the evidence for this is found in the simultaneous but separate inquiries that, at the time of writing this paper, are being conducted into this topic by the Australian Parliament's Joint Committee on Corporations and Financial Services, and by the Australian Government's Corporations and Markets Advisory Committee (CAMAC). These developments are supported by the many standards, guidelines, principles, and codes promulgated by non-government bodies, industry groups and other international organisations.

Cynics might dismiss these developments as part of a regular cycle of corporate law reform. After all, as we will see, this is not the first time that corporate social responsibility has appeared on the reform agenda. Others might suggest that, finally, this is an idea whose time has come. The purpose of this paper is to examine the extent to which this renewed, and widespread, attention to corporate social responsibility is being reflected in the substance of our systems of corporate law. Is it possible, and meaningful, to talk of a 'new corporate law' in which the concerns of people other than shareholders (or, indeed, the non-financial concerns of shareholders) are to be given serious attention?

The plan of the paper is as follows. We begin with a brief survey of recent developments in different common law jurisdictions, with an emphasis on Australia, that have implications for the idea of corporate social responsibility. The focus here is not just on statutory developments, but also on the wider array of codes, guidelines and so on that were adverted to earlier. From this base, we then draw and elaborate upon two conclusions. The first is that the shareholder primacy model continues to exert a powerful, although sometimes misunderstood, effect on the capacity of legislators to respond to corporate social responsibility concerns. In particular, it has the potential to constrain the actions of directors in responding to those concerns, it constrains the power of shareholders to put these concerns in front of the board, and it constrains the capacity of non-shareholders to bring these concerns to the attention of company managers. The second conclusion is that much of the action regarding corporate social responsibility therefore occurs outside the parameters of the statutes, and it is in this sense that we can talk about a 'new corporate law': a system of corporate regulation that depends as much on (if not more on) non-statutory mechanisms and methods, which in many cases can have a more immediate impact on corporate operations. The final part of the paper examines some of these themes in more detail, by way of a 'case study' of the position of corporate employees. Whatever definition one takes of corporate social responsibility, it is undeniable that the financial and physical well-being of a company's employees must be a central concern. Recent corporate collapses and policy responses to them in Australia provide a stark illustration of the limited extent to which corporate law has been able to respond to the challenges of corporate social responsibility.

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Centre: CCL

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

Essay Review: Final Test and Class and Schools

Author(s): Molly Townes O'Brien

This essay reviews two recent books that explore contemporary efforts to close the American black/white educational achievement gap. In Final Test: The Battle for Adequacy in America's Schools, Peter Schrag chronicles on-going efforts to enlist the power of the courts to effect equal educational opportunity through court-ordered remedies. Richard Rothstein, in Class and Schools: Using Social, Economic and Educational Reform to Close the Black-White Achievement Gap, looks to social science, educational and social reform for potential solutions to the problem. The essay suggests that neither litigation nor educational reform is sufficient to provide universal access to high quality education in the U.S. Broad social reform and sustained effort in both the courts and the legislatures are required.

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Centre: CIPL, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Toward a Treaty on Safety and Cost-Effectiveness of Pharmaceuticals and Medical Devices: Enhancing an Endangered Global Public Good

Author(s):

Expert evaluations of the safety, efficacy and cost-effectiveness of pharmaceutical and medical devices, prior to marketing approval or reimbursement listing, collectively represent a globally important public good. The scientific processes involved play a major role in protecting the public from product risks such as unintended or adverse events, sub-standard production and unnecessary burdens on individual and governmental healthcare budgets.

Most States now have an increasing policy interest in this area, though institutional arrangements, particularly in the area of cost-effectiveness analysis of medical devices, are not uniformly advanced and are fragile in the face of opposing multinational industry pressure to recoup investment and maintain profit margins.

This paper examines the possibility, in this context, of States commencing negotiations toward bilateral trade agreement provisions, and ultimately perhaps a multilateral Treaty, on safety, efficacy and cost-effectiveness analysis of pharmaceuticals and medical devices. Such obligations may robustly facilitate a conceptually interlinked, but endangered, global public good, without compromising the capacity of intellectual property laws to facilitate local product innovations.

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Centre:

Research theme:

Potential Impact of AUSFTA on Australia’s Blood Supply

Author(s):

Australia is largely self-sufficient in its supply of safe, fresh blood products because of the goodwill of non-remunerated, volunteer donors, plus rigorous testing and processing standards. Australia, under the National Blood Agreement, has a policy of “self-sufficiency” in fresh blood and plasma products. The policy refers to effort rather than outcome, with self-sufficiency defined as “striving to meet clinical demands using local product”. In recent years, increasing amounts of plasma- derived and recombinant products have been imported (with limited policy debate). However, for the most part, plasma products continue to be derived from Australian donations and processed in Australia.

Whole blood, plasma and platelets from non-remunerated, volunteer donors are collected by the Australian Red Cross Blood Service, and tested for HIV, hepatitis B and C, HTLV-1 and -2, syphilis, and for cytomegalovirus (to protect recipients with immune deficiencies).

On 1 January 2005, the Australia-United States Free Trade Agreement (AUSFTA) came into force.4 A side letter to this agreement opens the way for the importation of blood and plasma-derived products to increase considerably above current levels.

In this article, we raise several specific concerns relating to AUSFTA and the safety, quality, and security of supply of Australia’s blood and plasma products. We also argue that AUSFTA creates additional uncertainties by increasing the potential for policy lobbying based on the threat of so-called “non-violation nullification of benefits” disputes, although we maintain these must be restricted to unambiguous textual obligations. Off-shore fractionation could compromise the safety of Australia’s blood supply through delays in processing and transportation, issues related to quality control, and even the siphoning of stock to overseas markets.

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Centre:

Research theme:

Tendering for Low Cost Generics in Australia

Author(s):

An Australian federal government committee recently proposed, as a cost-saving measure, the introduction of sealed-bid competitive tendering to exclusively supply the Pharmaceutical Benefits Scheme (PBS) with specific generic medicines. A similar plan involved an open tender to supply generic products below a government set price, also linked with a reduced patient co-payment as an incentive. These proposals represented an opportunity to encourage the price of generic pharmaceuticals to move closer to the marginal cost of production - a process that could be subsequently applied to innovative (or brand-name) patented medicines in a therapeutic class with many competitors. This article examines these tendering proposals, particularly in relation to the potential for increased involvement of generic pharmaceutical manufacturers in the Australian market. Centralised purchasing through tendering for specific generic products has many potential advantages for the PBS;

It would: • allow the PBS system to use cost-effectiveness evaluation linked with their power as largely the sole buyer of medicines in Australia to leverage lower prices; • make prices paid to manufacturers (and other suppliers) more transparent; • give manufacturers (and other suppliers) enhanced certainty over demand than current fluctuating arrangements with wholesalers; • create a negotiating lever to facilitate entry of new generic manufacturers into a more competitive market; • reduce the likelihood of “actual” and “artificial” (“speculative”) supply shortages and facilitate longer and more efficient production runs; • reduce price fluctuations; and • open the door to tendering for innovative products where numerous competitors exist in a therapeutic class. A key benefit of the tendering mechanism is that it will provide a good means for the government and its cost-effectiveness evaluators to gain an understanding of the marginal cost of production for specific PBS-listed medicines. This would be especially true if PBS tenders were in the form of first-price sealed-bid auctions, in which bidders provide a secret bid.

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Research theme:

The Trans-Tasman Therapeutic Products Authority: Potential AUSFTA Impacts on Safety and Cost-Effectiveness Regulation for Medicines and Medical Devices in New Zealand

Author(s):

Australia and New Zealand had agreed in principle to the creation of a single agency for the regulation of pharmaceuticals and other therapeutic products in a trans-Tasman market. The Australia New Zealand Therapeutic Products Authority ("ANZTPA") was being developed to replace both the Australian Therapeutic Goods Administration ("TGA") and the NZ Medicines and Medical Devices Safety Authority ("Medsafe"). The agreement was cancelled in 2007. This article explores the possibility that the ANZTPA in its original form, by inheriting significant 'linkage evergreening' obligations imposed on the TGA under the Australia-United States Free Trade Agreement ("AUSFTA"), may significantly impact upon the regulation of medicines and medical devices (as well as blood products) in New Zealand. It explores the related legal obligations and their likely consequences for New Zealand, particularly quality, safety and efficacy and cost-effectiveness evaluation processes in this area, such as those of The New Zealand Pharmaceutical Management Agency ("Pharmac").

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Centre:

Research theme:

A Critical Analysis of Overseas-Trained Doctor ('OTD') Factors in the Bundaberg Base Hospital Surgical Inquiry

Author(s):

This article explores one of the most intriguing and hitherto largely unexplored aspects of healthcare quality and safety investigations in Australia: the role of a protagonist's status as an overseas-trained doctor ("OTD"). The topic is controversial, not the least because of the growing importance of OTDs in maintaining basic health services in some areas of Australia, but also due to the difficulty of teasing genuine quality and safety problems in this context from possible racial or xenophobic concerns. As a case study, we will explore the problems associated with Dr. Jayant Patel at the Bundaberg Base Hospital ("BBH") in Queensland.

It is now well known that Toni Hoffman, Nurse In Charge of the Intensive Care Unit at the Bundaberg Base Hospital ("BBH"), "blew the whistle" on Dr. Patel. Before this, Dr. Patel had practised as Director of Surgery at the BBH for two years, commencing in April 2003. Ms. Hoffman maintained that during Dr. Patel's time at the BBH, she raised concerns about his practice and competence with at least twelve parties, including hospital staff, administration and management, Queensland Health administrators, the coroner and police, without result. Ms. Hoffman has revealed that she and other BBH staff were so concerned about Dr. Patel's apparent incompetence that they hid patients from him.

The Patel case highlights that healthcare policy makers and regulators need to be aware of the distinct quality and safety problems raised by OTD status. Just as the major failure in paediatric cardiac surgery at the Bristol Royal Infirmary was "a powerful political lever for change" in the United Kingdom, the events at Bundaberg must be the catalyst for long-overdue reform to the way that OTDs are dealt with in the Australian healthcare system.

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Centre:

Research theme:

Superannuation Complaints Tribunal and the Public/Private Distinction in Australian Administrative Law

Author(s): Greg Weeks

This article considers the Superannuation Complaints Tribunal (SCT) and the capacity of its decisions to be reviewed. While the constitutional position of the SCT is settled after the decision of the High Court in Attorney-General (Cth) v Breckler (1999) 197 CLR 83, its categorisation as a private body remains open to question. This being the case, the susceptibility of decisions of the SCT to review is compared with the equitable standards upon which trustee decisions are reviewable. Challenges to decisions of the SCT may not be possible under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but the quasi-private character of the SCT – a private body with a public function – presents scope for courts to hold that the SCT owes an equitable duty to those within its jurisdiction.

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Centre: CIPL

Research theme: Administrative Law

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Gluttony: The End of Private Law

Author(s): Desmond Manderson

Starting from St Thomas Aquinas, the best known of the medieval commentators on the Seven Deadly Sins, the sin of gluttony has suffered from certain ambiguities. This chapter attempts to clarify the nature and the problematic of glutton, with particular reference to an aspect of contemporary significance: the treatment and consumption of animals. The author finds this treatment both scandalous, secretive, and emblematic of a much broader problem of the modern world – commodification. This, too, is a form of modern gluttony from which neither law nor philosophy is immune. In order to draw forth these connections between our approach to law, to knowledge, and to food, the author draws on recent fiction by Nobel laureate J M Coetzee, and the ethical philosophy of Emmanuel Levinas. He argues for a restructuring of how we think about ‘the lives of animals’ which will respond to the idea of gluttony in both its immediate sense and in its metaphorical extension. Perhaps our gluttonous appetites can be tamed, not by knowledge and not by justice, but by ethics.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws

Author(s): Moeen Cheema

Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender.

This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an “Islamic critique” of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.

Read on SSRN

Centre: CIPL, LGDI

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

Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools

Author(s):

A former colleague of mine recently asked me whether being Dean left me time for any serious legal research and writing. Putting aside any question of intellectual impairment caused by decanal duties, and assuming also that one is on the right side of that well-known equation in which accumulated experience keeps one just ahead of one’s biological decline, I mentioned that I had gravitated to shorter, more reflective pieces. In particular, I had just written a piece of extreme brevity - only a page and a half of printed text - with which I was nevertheless very pleased. It explored the phenomenon of deep antinomies in the law, particularly the tension between the concept of law as an autonomous body of knowledge and the notion of law as comprehensible only by reference to its context, especially its political, social, economic, and historical context. He said to me, ‘Why am I not surprised? The theme of all of your writing seems to be the irreconcilable tension between competing ideas!’

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Centre:

Research theme:

On Building a Successful Career as an Academic Lawyer

Author(s):

I find myself in an ironic position this afternoon. This morning I was supposed to be a commentator on the keynote address, but pretty much gave my own independent perspective on legal knowledge and lawyers’ responsibilities. This afternoon I am supposed to give my own independent perspective on building a successful career as a legal academic, yet I find myself so stimulated by Ros Croucher’s paper that I can’t resist falling into the role of being a commentator on it. You might think that this is another example of the tensions and dilemmas I spoke about this morning. I rather think it is an example of my perverse streak, which actually launched me on my academic career, when, 35 years ago, against all advice, I forsook the US and the UK and took off to India for postgraduate study. But perhaps more of that later. I say perhaps because, despite Paul Moyle’s dangerous invitation to Ros and me to reflect on our personal experiences, I don’t want to cross the line into total self-indulgence.

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Centre:

Research theme:

We Are What We Write

Author(s):

Ever since I published my first legal article in 1969 – of all places, in the Jaipur Law Journal, published by the University of Rajasthan – I have spent my professional life writing. The writing seems to have been passable enough: my first book won a prize; my second book says on the back cover that I am ‘a master of English prose’ (though I may have written that myself); and my most recent book – as I proprietorially and presumptuously call the multi-authored Oxford Companion to the High Court of Australia – received widespread acclaim for its hidden treasures and subtle pleasures. Yet I have never before been publicly introspective about it. This is the first time I have been asked to share my thoughts on the art of legal writing.

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Centre:

Research theme:

Tortologies

Author(s): Desmond Manderson

It matters how we conjugate the world. The grammar in which one frames an area of law indicates what is seen to be important about it and why. How did law arise and to what end? These questions have generated a variety of powerful myths surrounding the origin of law. Over the past several years, I have been working on a project which has attempted to articulate the insights of Levinas to a legal audience, with particular reference to the distinct idea of responsibility in tort law. Above all, as I hope this essay will go on to illustrate, Levinas offers a point of departure in trying to understand why we ought to be responsible for others that is radically unlike the standard grammars and philosophical reference points which have to date governed our understanding of this responsibility. Levinas suggests that we can understand responsibility in quite a different way, and in a manner that both captures something central to the legal discourse, and - just as relevantly - central to our own experience. Law is, after all, not just a structure of arbitrary rules of co-ordination. It is a story as to the way in which our society re-attaches commitments to their proper authors. Responsibility is not a judicial auto-da-fe but an influential narrative about who we are.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Coffee House: Habitus and Performance Among Law Students

Author(s): Desmond Manderson

Drawing on the work of Pierre Bourdieu and Judith Butler, we develop a detailed ethnography of a social space in a major law school, and explore its socialization of the students there. ‘Coffee House’ is a weekly social event sponsored by Canadian law firms offering free drink and food to the students present. We argue that this event and the actors involved profoundly change student identities and alter educational aspirations. Although the students themselves insist that ‘nothing is going on,’ our ethnography suggests that in ‘Coffee House’ identity is developed through performances, and in the accumulation of symbolic capital, until ultimately students come to feel their future career path is not a matter of choice, but destiny. We explore the important work of Bourdieu through this setting, but ultimately we resist his determinism, and suggest instead that, following the work of Butler, identity is a more complicated and fluid dynamic between space, repetition, and performance. It appears that a personal unconscious transformation amongst law students attending Coffee House is underway; yet opportunities to change the meaning of this space and these performances remain.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Legal Regulation of Religious Giving

Author(s): Pauline Ridge

The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.

Read on SSRN

Centre: CCL

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

Emmanuel Levinas and the Philosophy of Negligence

Author(s): Desmond Manderson

Over the past hundred years, the law of negligence has transformed itself, and in the process transformed our sense of the obligations we all owe to everybody around us – local governments for the services they provide, banks and professionals for the advice they give, drivers on the road, doctors in the surgery, homeowners for their guests or visitors, and even for the trespassers who might pay them a call. Yet what is now compendiously described as ‘the duty of care’ is in some ways an unusual obligation. It is not the outcome of an agreement founded on self-interest, like a contract. It is not a duty owed to the community as a whole and acted on by the State, like criminal law. It describes a personal responsibility we owe to others which has been placed upon us without our consent. It is a kind of debt that each of us owes to others although we never consciously accrued it. Thus it raises in a distinctly personal way one of the oldest questions of law itself: ‘Am I my brother’s keeper?’ What does it mean to be responsible? This is not a question that is easier to answer for us than for Cain. In this article I argue that the idea of responsibility articulated in the law of negligence comes from what might be termed our literal response-ability: it implies a duty to respond to others stemming not from our abstract sameness to others, but rather from our particular difference from them. Responsibility is not a quid pro quo — it is asymmetrical, a duty to listen to the breath of others just in so far as their interests diverge from our own. The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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