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.

Contemporary Australian Corporate Law

Contemporary Australian Corporate Law

Author(s): Peta Spender, Stephen Bottomley, Kath Hall, Beth Nosworthy

Contemporary Australian Corporate Law provides an authoritative, contextual and critical analysis of Australian corporate and financial markets law, designed to engage today's LLB and JD students. Written by leading corporate law scholars, the text provides a number of features including: a well-structured presentation of topics for Australian corporate law courses, consistent application of theory with discussion of corporate law principles (both theoretical and historical), comprehensive discussion of case law with modern examples, and integration of corporate law and corporate governance, all with clarity, insight and technical excellence. 

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Centre: CCL

Research theme: Legal Education, Private Law, The Legal Profession

Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value

Author(s): Ron Levy

This article examines whether Australia’s constitutional founders intended that a deliberative form of democratic government should govern federally in Australia. Deliberative democratic ideals have long occupied a prominent place in democratic theory. However, they have seldom been brought to bear in a sustained way on historical questions about Australia’s constitutional design. For constitutional scholars, democratic deliberation is now generally a forgotten element of the Australian constitutional system. We show here how the framers concerned themselves with democratic deliberation, including how precisely they envisaged deliberative democratic practices during the federation Conventions and within the new federation. Our focus is on the framers’ understandings of deliberation within the institution of Parliament, and the subsidiary issues bearing on that question such as the relationship between Parliament and the executive and the role of political parties. Our research suggests that deliberative democracy should assume a prominent place alongside more widely acknowledged original constitutional values.

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Centre: CIPL, DGAL

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

'Envisioning Student Learning in a Multi-Disciplinary Student Clinic Future Practitioners Learning About Working Collaboratively Across Disciplines to Better Help Community’ (Presentation Slides)

Author(s): Elizabeth Curran

In this paper, the author examines the imperative for interdisciplinary student clinics where law, nursing, social work and other disciplines work together in joint classes at undergraduate levels to learn collaborative and client skills to overcome barriers and professional stereotypes that impede the solving of clients problems holistically. Then they can work towards delivering a real life advice clinic to clients in most need and undertake systemic reforms to avert problems.

The paper defines interdisciplinary student clinics and multi-disciplinary practice given the nomenclature in literature is contradictory and confusing.

The presenter’s research and practical experience as a clinical legal education supervising solicitor within a health service has led to the idea for the development of an interdisciplinary student clinic as an important way of building better and more responsive future practitioners in health, law and allied health disciplines.

The paper outlines some initiatives undertaken by law students under her supervision that could if further developed be done in collaboration and co-cooperatively alongside other colleagues in different fields and in student learning to ensure respectful and reciprocal learning. It can also lead to an appreciation of different professional roles and differing ethical obligations. In this paper, the author identifies why there is a need for such an approach to break down barriers between professionals to improve social justice and health outcomes based on her recent empirical research.

She will explore research and new approaches to lawyering and health services provision that works across silos to enable more seamless navigable service options for real life clients of the clinic and new approaches in a work place.

The author has been asked to advise (pro bono) on the establishment of such an innovative clinic at Portsmouth University in the UK for nursing, law and social work students.

This initiative by way of a pilot aims to see work across academic disciplines and with clinical supervisors from different fields designing and teaching together in such a IDSC.

The author notes that a further paper is being developed in collaboration with the Head of Law and Head of Nursing at Portsmouth University that explores these issues in more details.

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Centre:

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

An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients (Presentation Slides)

Author(s): Elizabeth Curran

Our paper fits into all the themes ● The clinician and community needs ● The clinician and research into the impact of clinic ● The clinician and academic identity ● The clinician and curriculum and student learning

This paper examines the value in students, academics and clinical supervisors learning and working together across different disciplines through an interdisciplinary student clinic (IDSC) to deliver legal and public health education to people who experience social exclusion by reason of vulnerability or disadvantage (including poverty)– the ‘Health Justice Partnership Student Clinic’.

This paper situates the discussion firstly within the context of author one’s research on multi-disciplinary practices (MDP) including Health Justice Partnerships (HJP) which have led to this decision at University of Portsmouth to set up a IDSC. MDP in this context is where a number of professionals work together in a practice to assist the client using their different skills but in the one place and setting. One subset of an MDP is the HJP which sees lawyers working alongside nursing and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. It is about going to where people in need of help are likely to turn.

This paper firstly identifies the evidence-based research that has led the authors to see the need, not just for multi-disciplinary practices in a service context but also interdisciplinary practice and teaching opportunities through clinical learning that brings greater collaboration for students, supervisors and academics across the professional divide to improve outcomes for clients. The authors see a critical need in universities to better prepare the emerging professionals to learn about collaboration with other disciplines and demonstrate influence and impact in the wider community. Author one’s empirical research into effective practice also suggests that such collaboration leads to better outcomes for clients and patients especially those experience some form of vulnerability or disadvantage.

Secondly, as there is some literature on IDP and IDSC, (mainly from the United States and Australia) this paper will explore other models, the reasons and rationales for their emergence and the benefits and challenges and how this has informed the development other new pilot IDSC at the University of Portsmouth. The paper then discusses why the IDSC has emerged as an important way of building better and more responsive future practitioners in nursing, law and allied health disciplines.

The paper also discusses aims of the three-year University of Portsmouth pilot IDSC and the joint learning opportunities for students of different disciplines, their supervisors and across departments which are envisioned so as to break down barriers between professionals, enable future practitioners to collaborate across different fields and thereby improve social justice and health outcomes for clients and community. These include fostering and increasing understanding and respect for different professional roles and approaches, breaking down stereotypes, enhancing student employability and working together to better reach and meet client/patient needs by being more responsive to legal and public health needs.

The proposed trial IDSC HJP student clinic course will teach new approaches to students studying nursing, dentistry and law in a joint learning environment that includes problem solving, relationship-building, communication and collaboration skills in a clinic which will provide live client legal and public health advice. It will discuss how this is being undertaken and the challenges and approach of the course and its curriculum.

The paper finally discusses the embedded evaluation of the pilot study. It is embedded as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. The embedded evaluation being undertaken will inform as to the projects impact on students, academic staff, partner agencies and clients.

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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

Recent Developments in Social Security Law

Author(s):

This Paper was presented to a Roundtable of the National Social Security Rights Network in Canberra on 5 August 2017.

The Paper reports on recent developments in social security law in Australia, particularly with reference to recent decisions of the Commonwealth Administrative Appeals Tribunal and the Federal Court of Australia.

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Research theme:

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s): Kath Hall

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

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Centre: CCL, CIPL, LGDI

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

Planning and Soft Law

Author(s): Greg Weeks

Complex regulatory systems are particularly in need of regulation capable of maintaining both high standards and consistency in decision-making. Soft law is frequently the mechanism of choice to achieve these ends, since it can be made and altered with relative ease but is nonetheless treated as though it were hard and enforceable ‘law’. The law around environmental planning decisions, although subject to detailed legislative control, makes extensive and predominantly effective use of soft law. However, the use of soft law always carries some risk and this is generally imposed asymmetrically upon individuals rather than public bodies. This article will consider these issues, taking account of several relevant cases.

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Centre: CIPL

Research theme: Administrative Law

A People's Federation? Populism, Deliberation and Federal Reform

Author(s): Ron Levy

In some ways populism provides a starkly poor fit to federal decision making – including decision making about a federation itself. As I describe in this chapter, contemporary populism is at once impatient for, and prone to derailing, federal reform. However, after diagnosing problems, I turn to consider institutional routes around them. The best solutions – those perhaps most able to restart stalled progress toward reform – may be those aiming to harness and redirect, rather than deny, populism’s rising tide. In this regard, deliberative democratic approaches to reform appear to hold particular promise.

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Centre: CIPL, DGAL

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

Government Accountability As a ‘Constitutional Value’

Author(s): Greg Weeks

Accountability is frequently described as one of the key ‘values’ or ‘ideals’ that administrative law is designed to uphold. Accountability’s greatest claim to hold the status of a value might be its ubiquity: it has been described as the ‘buzzword of modern governance’, the ‘über-concept of the 21st century’, and a ‘theme … central to all discussion of government’. Yet the modern meaning of accountability has developed very recently. The word ‘accountability’ can be found in Australian cases over the last century but most refer to the accountability of fiduciaries (such as liquidators and executors) in equity, of taxpayers, of tortfeasors, in electoral matters and of public companies, rather than of government bodies. The concept of the ‘accountability’ of government to those governed has become prominent only fairly recently.

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Centre: CIPL

Research theme: Administrative Law

The Deliberative Case for Constitutional Referenda

Author(s): Ron Levy

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

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Centre: CIPL, DGAL

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

First Research and Evaluation Report Phase One Consumer Action Law Centre Project – Responding Effectively to Family Violence Dimensions of Debt and Credit Through Secondary Consultations & Training with Community Professionals

Author(s): Elizabeth Curran

The Report of the Royal Commission into Family Violence recognised that the family violence victim’s financial security impacts on their wellbeing. Beyond the role of the perpetrator of violence, many problems interact in relation to family violence related debt: 1. The considerable difficulties victims face in asserting and enforcing their financial rights alone; 2. A systemic failure by financial and utility service providers “to understand, identify and respond to economic abuse”; and 3. Inadequate legal and regulatory protections. This Research and Evaluation Report Phase One, evaluates whether the aim of this project to provide a Secondary Consultation (SC) service integrated with Consumer Action’s Training and Outreach program providing training, resources and support to community workers (‘community professionals’) to overcome barriers identified in previous studies by working with trusted community professionals to whom people experiencing family violence are likely to turn to enable their credit & debt legal issues is being addressed in a timely and effective way. The data discussed and analysed for this report including the proxies or benchmarks, set for this research evaluation are being achieved namely engagement, capacity, collaboration and empowerment however there are still some areas for improvement, which is only natural when this project is in its infancy and the issues as the Royal Commission highlights are so vexed and complex. The in-depth interviews reflect that trust and reliability are critical in gaining secondary consultations and referrals. The former being identified (as in other studies ) as critical if the latter are to flow. The qualitative data suggests that Consumer Action is starting to build trust and relationships but there are notes of warning from the interview participants about a need for clarity around the extent and resources and types of matters Consumer Action can assist with and offer support on. This the research participants 5/6 noted can also give them confidence and greater certainty as they support their clients through family violence and debt and credit related issues. The research data consistently highlights the value of secondary consultations (5 out of 6 of the participants strongly agree to its value) in providing efficient, effective and responsive timely secondary consultation to community professionals especially where clients may: not be emotionally ready to see a lawyer, have too many issues weighing on them, or have had poor experiences of lawyers. The latter is consistent with other research but seems to be addressed, as the participants noted in the in-depth interviews with the style of community lawyering that is approachable and practical and considers context. Consumer Action has delivered training sessions which double the number which the funding requires. This is a critical part of building the awareness not only of the service but of the range or problems capable of a legal solution, building trust and relationships and capacity to respond of agencies and other community professionals into the future beyond the extensive reach that Consumer Action already has, to financial counsellors. Noted by all interview participants was that secondary consultations are invaluable as they build trust, provide a form of instant on the spot training, especially for professionals and their clients in rural locations, which are being used to extend the reach of Consumer Action to clients beyond those for whom the initial consultation is sought as the information has wider utility. It can be timely and there is no intake process that for other services can present barriers.

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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

Public Health Legislation Prohibiting Sports-Embedded Gambling Advertisting

Author(s):

Australian Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.

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High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey V the Queen and Zaburoni V the Queen

Author(s):

In 2017, the High Court of Australia in Aubrey v The Queen (2017) 91 ALJR 601; [2017] HCA 18 considered the term “inflict” grievous bodily harm, under common law, and expanded its interpretation to incorporate nonviolent and non-immediate infection of a disease, overturning a 120 year authority in R v Clarence (1888) 22 QBD 23. In the previous case of Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, the High Court allowed an appeal from the Qld Supreme Court finding that repeated acts of unprotected sexual intercourse by a man who knew he was infected with HIV/AIDS, though callous and reckless, did not constitute intention to infect his female partner; consequently, he could be found guilty of a lesser offence of inflicting grievous bodily harm which carried a maximum 14-year prison sentence rather than life imprisonment. These decisions illustrate a court intersecting with an emerging trend to use legislation creating criminal offences to deter those who intentionally or recklessly infect others with life-shortening diseases.

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How the Higher Education 'Industry' Shapes the Discipline of Law

Author(s): Margaret Thornton

This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.

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Centre: CIPL, CLAH, PEARL

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

The Proper Role of Policy in Private Law Adjudication

Author(s): Darryn Jensen

The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law.

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Centre: CCL

Research theme: Legal Theory, Private Law

ADJR at 40: In its Prime or a Disappointment to its Parents?

Author(s): Greg Weeks

The commencement of the ADJR Act represented a significant moment in Australian administrative law. This paper will discuss the impact of the ADJR Act and its continuing relevance.

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Centre: CIPL

Research theme: Administrative Law

Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

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Centre:

Research theme:

Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

Read on SSRN

Centre:

Research theme:

Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

Read on SSRN

Centre:

Research theme:

Achieving the Sustainable Development Goals: Promoting Cooperation and Sustainability

Author(s): Molly Townes O'Brien

To combat the complex problem of world poverty, the United Nations General Assembly set out eight Millennium Development Goals (MDGs), but as poverty decreases, energy consumption and pollution increase. Largely due to this complication, the MDGs were replaced in September 2015 with the Sustainable Development Goals (SDGs). The SDGs include new priorities such as climate change, economic inequality, innovation, sustainable consumption, and peace and justice. Successful development involves more than avoiding poverty. To achieve the sustainable development goals, we have to know what they are and why they were introduced. We need to teach them to our students, who will carry the goals into their future work places.

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Centre: CIPL, PEARL

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

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