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.

Legal and Ethical Matters Relevant to the Receipt of Financial Benefits by Ministers of Religion and Churches: A Case Study of the New South Synod of the Uniting Church in Australia

Author(s): Pauline Ridge

This paper discusses some of the findings of a research project on the use of spiritual influence for financial gain, using the New South Wales Synod of the Uniting Church in Australia (UCA) as a case study. The paper begins with the hypothesis that regulation is required with respect to the receipt of financial benefits by ministers of religion and religious bodies from those under their spiritual care. Current legal and ethical regulation is briefly outlined before the project’s findings are discussed. Semi-structured interviews were conducted with leading players in the New South Wales Synod, who were asked to recount stories relating to the receipt of financial benefit that they perceived to constitute an abuse of spiritual influence for financial gain. It was found that at least two general scenarios existed which caused concern to interviewees but which were not regulated by law. The paper describes examples of these scenarios and considers whether they raise legal or ethical concerns.

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Centre: CCL

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

Affirmative Action, Merit and Police Recruitment

Author(s): Margaret Thornton

Affirmative action measures, particularly the use of quotas, are contentious because they are assumed to contravene the merit principle. This piece challenges the assumption with reference to a proposal by Victoria Police that 50% of all new recruits should be women. It argues that the normativity of the white male police officer has shaped the construction of the ‘best person’. The paper includes an overview of affirmative action law in Australia.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Love on Trial: Nature, Law and Same-Sex Marriage in the Court of Shakespeare

Author(s): Desmond Manderson

This paper provides the text of a judgment on the legality of same sex marriage in the court of Shakespeare, a radically interdisciplinary pedagogical experiment undertaken by ENglish and Law students at McGill University. The court considered oral arguments and briefs from counsel on the meaning of marriage in the Shakespearean corpus, particular the marriage comedies, and further examined the jurisprudential practices of the Court, and the question of interpretation over time. The question is, is marriage immutable or cultural dynamic and what does a careful reading of Shakesepare tell us about these legal and social questions?

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Centre: CLAH

Research theme: Legal Theory

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s):

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

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Centre: CCL

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

At the Intersection of Public Policy and Private Process: Court-Ordered Mediation and the Remedial Process in School Funding Litigation

Author(s): Molly Townes O'Brien

Using Ohio's experience with court-ordered mediation in school finance litigation as a point of departure, this article examines the potential for court-ordered mediation to provide procedural justice in the remedial phase of institutional reform litigation. The article begins by sketching out some of the difficulties that courts encounter when designing a remedy in a school finance case and some of the reasons why, at least in the abstract, a mediation process may assist the parties and the court. Next, the article provides a brief history of the DeRolph v. State, 758 N.E. 2d 1113 (Ohio 2001), placing the abstract remedial concepts against the concrete details of a particular case. It then explores some possible reasons for the failure of the DeRolph mediation and suggests what might have been done to create a better possibility for success.

In spite of the failure of the DeRolph mediation, this article suggests that mediation may play a productive role in the future of school finance cases. Court-ordered mediation may permit the re-structuring of the remedial process in a way that addresses minority rights which often are lost or minimized in the traditional legislative process. Further, a participatory mediation process holds promise for achieving remedial results in a school finance case that are both educationally viable and politically sustainable. Mediation may open new avenues for the resolution of litigation at the intersection of private process and public policy.

Several lessons may be drawn from the DeRolph litigation. DeRolph teaches that mediation is more likely to play a positive role in the resolution of an important institutional reform case if it is considered as a primary avenue of achieving remedial results rather than as a very last resort. Further, any court considering whether to order the mediation of an important institutional reform case should be attentive to creating a substantive and procedural framework that will support the parties' motivation and effort to devise their own remedy. This article encourages the court to support court-ordered mediation by providing a clear and unequivocal statement of the rights of the parties and remedial principles that apply in the case and by outlining fall-back remedial procedures that will be implemented if resolution is not achieved. The court should also consider the legitimacy benefit that may accrue from the participation of a broad group of interested constituencies and construct a framework that supports the mediator's efforts to identify and include a broad group of stakeholders.

This article represents an effort to learn from past failure and to plan for future success in school finance mediation and other public law litigation.

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Centre: CIPL, PEARL

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

The Constitutional Common School

Author(s): Molly Townes O'Brien

This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian.

Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a "thorough and efficient system of common schools" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination.

Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools.

Finally, the authors attempt to place the constitutional "common school ideal" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.

Read on SSRN

Centre: CIPL, PEARL

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

The Constitutional Common School

Author(s): Molly Townes O'Brien

This paper turns to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. First, it traces the early development of public schooling in America and the complex relationship between public education and religion. The common school, as envisioned by the Ohio crusaders for its establishment, would bring diverse peoples together to create a common sense of citizenship. It would provide for citizen equality, and social and economic mobility; and it would safeguard liberty by developing a polity capable of self-government. The common school vision competed, however, with the existing reality of schools that were tuition-based, locally governed, diverse and sectarian.

Prior to 1851, the conflict over competing visions of schooling - one embraced primarily by protestant school crusaders, the other embraced by the Catholic Church - had escalated into violent conflict in New York City and Boston. In Ohio, conflict relating to the nature of public education, and, more specifically, the use of public money for sectarian schools had not become violent, but had been vigorously debated since 1789. The inclusion of the provision for a "thorough and efficient system of common schools" in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state-operated system of schools that would encourage civic participation and avoid religious indoctrination.

Next, the paper addresses efforts made to revise the state's educational provisions through constitutional amendments in 1874 and again in 1912. In considering and rejecting various amendments to Article VI, Section 2, the delegates to these conventions reinforced and redefined the non-sectarian ethos of public education. They also added new provisions to centralize authority for the efficient administration of education and to ensure state oversight over a single system of schools.

Finally, the authors attempt to place the constitutional "common school ideal" in the context of contemporary educational debates. Advocates for school choice have argued that both religious and private schools attend to the values of equality and civic participation while allowing for diversity in values, religious views and educational approaches. The authors of this paper, however, suggest that the ethos or constitutional vision of the common school is at odds with expanding programs that support private and religious school choice.

Read on SSRN

Centre: CIPL, PEARL

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

Greening the Australian Capital Territory Bill of Rights

Author(s): Donald Anton

This submission outlines an argument for the inclusion of "environmental rights" in Australia's first Bill of Rights, enacted by the Parliament of the Australian Capital Territory on 10 March 2004 as the Human Rights Act 2004 (ACT). The Act came in to force on 1 July 2004, without any environmental provisions.

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Centre:

Research theme:

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

Australian Citizenship Law in Context by Kim Rubenstein is a new book published in May 2002 by Lawbook Company. Citizenship is the pivotal legal status in any nation-state. For Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law in Context sheds light on citizenship law and practice in the broader context. It also provides the most up-to-date analysis available of the Australian Citizenship Act 1948 and its future direction, plus the first comprehensive listing and analysis of legislation that discriminates upon the basis of citizenship and residence.

The book covers issues of citizenship law, migration law and constitutional and administrative law, and is also a valuable resource for any discipline interested in citizenship. Contents. Preface. Table of Contents. Table of Cases. Table of Statutes. Chapter 1: Citizenship in Australia: An overview. Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates. Chapter 3: Australian "Subjecthood" before Australian Citizenship 1901-1949. Chapter 4: The Australian Citizenship Act 1948. Chapter 5: The Legislative Consequences of Citizenship. Chapter 6: The High Court and Citizenship and Membership. Chapter 7: The Future of Australian Citizenship Law. Index

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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

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo liberal climate that privileges employer prerogative over workers’ rights.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia

Author(s): Kim Rubenstein

This article looks at citizenship as both a legal formal notion, and as a normative notion. While the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), the normative citizen looks to broader concepts, speaking of membership regardless of a person's formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the 20th century. The article displays this by looking at the beginnings of citizenship in Australia before the legal status was formalised, then the first fifty years of the formal status, and finally at the legislative and common law expressions of citizenship. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century about the relationship between the formal and normative meanings of the term.

Read on SSRN

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

The Care of Strangers

Author(s): Desmond Manderson

Using the story of Antigone as a foil, this essay attempts to reframe questions of legal responsibility in the case of asylum and refugee law through the lens of Emmanuel Levinas. Using this framework, the article argues that questions of sovereignty must be recast as questions of hospitality. The fundamental test of justice is one of hospitality to the stranger. Too bad for us, but we do not have a say in the matter. In this, we are already the chosen people.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Apocryphal Jurisprudence

Author(s): Desmond Manderson

The purpose of the present article is to present to readers a conspectus of post-structural perspectives on legal theory which, I will argue, have been gravely misunderstood precisely because they have so often been discussed within the inappropriate terms of the bounded disagreement between CLS and positivism. My argument is rather to clarify the ways in which these new approaches ask very different questions and derive from different and irreconcilable concerns. Recent scholarship has sometimes spoken about jurisprudence as a battle between two warring tribes: “the orthodoxy” and “the heresy”. A heresy is a disagreement within a tradition, and a tradition, far from being a static structure of rules or doctrines, is an argument through time. On one level, then, a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions. To wage war requires a disagreement as to denomination, but an agreement as to currency. The field of mars must be determined; cannons must meet cannons; victory must be recognizable.4 Ironically, hierarchs and heresiarchs, patron saints and sinners, desperately need each other, for they mutually constitute their own importance: what they reject on the level of content, they sustain on the level of discourse. The current essay suggests that poststructural and critical theories of law represent neither heresy nor orthodoxy, but an apocrypha – a range of rejected or disputed perspectives that cast a thwart light on standard questions and open up a very different mode of engagement and range of responses. Using the seminal Australian case of Kruger as its case study, this essay shows how apocryphal jurisprudence might destabilize orthodox and heretical approaches to law alike.

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Centre: CLAH

Research theme: Legal Theory

From Oxymoron to Intersection: An Epidemiology of Legal Research

Author(s): Desmond Manderson

This paper surveys legal research in Australia. Using both theoretical and empirical work, it argues for a significant shift towards humanistic, theoretical, and interdisciplinary scholarship in law and explores the implications for legal research and for postgraduate supervision of this shift.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

EEO in a Neo-Liberal Climate

Author(s): Margaret Thornton

This paper interrogates the ways in which different meanings of equality and inequality are produced within political and legal discourses. With particular regard to the Australian experience, the paper considers the significance of the disappearance of affirmative action (AA) from the equality lexicon with the repeal of the federal AA legislation and its replacement with the equal opportunity (EO) for women in the workplace legislation. Even as this change was being implemented, EO was already being superseded in favor of ‘diversity’. It is argued that the linguistic changes signal a shift to the right of the political spectrum which emit deeply conservative and regressive messages regarding the gendered character of the workplace. Illustrations are drawn from the dissonant relationship between women and authority.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

International Citizenship: The Future of Nationality in a Globalised World

Author(s): Kim Rubenstein

This article attempts to identify the consequences for "nationality" in a world where "sovereignty" is challenged by the process of globalization. It builds upon Kim Rubenstein's chapter Citizenship in a Borderless World in A Anghie and G Sturgess (eds) LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY (Kluwer Law, 1998) and responds to the feature article Citizenship Denationalized by Linda Bosniak in the same Spring 2000 edition of the Indiana Journal of Global Legal Studies.

The piece begins by defining "nationality" and "globalization". It distinguishes "citizenship" and "nationality" in a technical legal sense and considers citizenship and globalization as multifaceted concepts. It also highlights that there is an inherent tension in the development of citizenship for the citizenship project is about the expansion of equality among citizens, however, as equality is based upon membership, citizenship status forms the basis of an exclusive politics and identity. The article then concentrates on some tensions endemic to nationality, particularly in a globalized world. It does so by looking at nationality's functionality as a legal and social tool, concentrating upon various treaties and agreements and the international case law dealing with nationality. The case law analysis is divided into the "Standing Cases" and the "Human Rights Cases". Finally, the article concludes by arguing that the concept of effective nationality facilitates a theoretical (if not yet a practical) entry point for the acknowledgment of layered and/or fragmented nationality appropriate to the circumstances of our participation in a given national, supranational, regional or even non-territorial community.This puts nationality more in line with a "rights" -based individualized focus for international law rather than a sovereignty-based one. It is where the progressive project of citizenship meets nationality, melding, strengthening and integrating them as one and the same tool for building justice in a new era.

Read on SSRN

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

Mandatory Sentences and The Constitution: Discretion, Responsibility, and Judicial Process

Author(s): Desmond Manderson

This article argues that mandatory sentences are unconstitutional under Australian law. The constitutional challenge most likely to succeed is not based on the practical severity or otherwise of the law, but instead based on an argument of incompatibility with the judicial process. This is an argument which has only been clarified since the High Court’s decision in Kable v Director of Public Prosecutions (NSW), itself decided long after Palling. The real issue is not the existence of prosecutorial discretion but the striking absence of any countervailing judicial discretion. This balancing discretion is central to the idea of judicial process as we understand it. In the normal course of events, if a prosecutor decides to use his or her discretion to pursue an essentially trivial matter, the Court may refuse to impose a fine, or suspend the sentence, or discharge the matter. Undoubtedly there are limits to these powers in some legislation, but these limits do not completely eliminate judicial discretion although they may constrain it. More specifically, we argue that mandatory sentencing provisions require courts to act in a way which is incompatible with the obligation to act judicially. We examine the evolution of what we call the ‘doctrine of incompatibility’ in an effort to give more concrete meaning to the idea of acting in accordance with the judicial process. Our purpose in this article is not to comprehensively define what constitutes the judicial process. Rather, we argue that the judicial process at least requires that those who preside over the process act judicially, and we seek to explore what it means to act judicially. We contend that the act of judgment must have integrity and independence, secured at the very least by procedural fairness, and arguably, by equal justice. Moreover, the act of judgment must involve some degree of independent judicial discretion in determining sentence. Some element of genuine judicial discretion is necessary in legitimating the judicial role, and thus in maintaining public confidence in the courts. The history of the English, and later the Australian common law cannot be read as suggesting that the legislature enjoys unlimited power to completely eliminate judicial discretion in imposition of punishment.

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Centre: CLAH

Research theme: Legal Theory

Dealing with Mass Atrocities and Ethnic Violence: Can Alternative Forms of Justice Be Effective?

Author(s): Phillip Drew

This paper was originally published in the Canadian Access to Justice Network. One of the first articles written on the subject of Gacaca, it was awarded the Prize for Alternative Dispute Resolution by the Minister for Justice of Canada in 2000.

In the paper, Drew explores the troubles in Rwanda as an example of the difficulties that confront countries as they transition from ethnic violence into a post-conlict and post-genocide framework. Specifically, how can they acknowledge and deal with past wrongs, especially in ways that offer hope for social rebuilding and reconciliation? Drew summarizes the genocidal terror that wracked Rwanda in 1994 and the various post-conflict efforts (national and international) to illuminate the wrongs committed and hold perpetrators accountable. His discussion includes aspects of ethnicity, culture, and legal traditions and developments in Rwanda that contributed to the violence and to complexities in the post-terror period in dealing with perpetrators and victims of the violence. Significant attention is given to a recommendation from a National Reconciliation Commission that Rwanda adopt the traditional Gacaca – a form of mediation performed by a village council of elders to promote justice and reconciliation at the communal level.

Read on SSRN

Centre: CMSL

Research theme: International Law, Legal Education, Military & Security Law

Et Lex Perpetua: Dying Declarations and Mozart’s Requiem

Author(s): Desmond Manderson

This essay presents a joint history of music and society in relation to legal change particularly in the law of evidence, around 1750. the paper argues that the dramatic changes in both fields reflected similar social transformations which together changed their normative structure and assumptions, their relationship to text, interpretation, and authenticity, and their affective, instrumental, and normative ambitions. The history of music and the history of law are imbricated and entwined. Mozart's Requiem and the law on Dying Declarations are both transitional moments in the birth of formalist in law and music alike; both reflect changing and powerful ideas about text, meaning, interpretation, and, ultimately, about death.

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Centre: CLAH

Research theme: Legal Theory

Modes of Law: Music and Legal Theory - An Interdisciplinary Workshop Introduction

Author(s): Desmond Manderson

This essay introduces an interdisciplinary symposium held at Cardozo School of Law in New York, and argues for a new field of study on the relationship between music and legla theory - historical, social, semiotic, symbolic, and theoretical. The symposium gathered leading figures from fields of legal theory, social theory, and musicology to present their work.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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