Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

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Committing to Human Rights in Australia's Corporate Sector

Author(s): Sally Wheeler

This paper draws on data collected from the ASX 50 with a focus on policy commitment to human rights. As the UNGP makes clear a visible and accessible policy commitment is the most basic form of recognition that corporations should afford to human rights. The paper takes the position that this policy commitment offers corporations a chance to declare a positive relationship with human rights. Therefore the presence or not of a policy statement, and the form that the statement takes, tells us much about the relationship between the corporate sector and human rights. The data reveals that there is generally a low compliance with the policy commitment requirement. The most significant factor amongst a range of variables examined for predicting whether compliance will occur or not is membership of human rights engaged Business and Industry Non-Governmental Organisations (BINGOs). We might expect a rather stronger public commitment to human rights reflecting the position taken by Australian corporations on other ESG standards. The paper suggests that the absence of human rights discourse as a political and cultural artifact at the domestic nation state level is a possible explanation for this.

Read on SSRN

Centre: CCL

Research theme: Law and Technology

Student Wellbeing Through Teacher Wellbeing

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

Author(s): Colin James

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

Read on SSRN

Centre: CIPL

Research theme: Legal Education, The Legal Profession

Trust and Distrust in Digital Economies

Trust and Distrust in Digital Economies

Author(s): Philippa Ryan

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

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

Access here

Centre: CIPL

Research theme: Law and Technology

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

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

Author(s): Greg Weeks

For a long time judicial review in Australia was little more than a carbon copy of its English equivalent. In the period before the various Australian states became part of a unified federal nation, judicial review occurred within the inherent supervisory jurisdiction of the various Supreme Courts of those individual colonies and proceeded in a manner similar to that of English courts exercising inherent supervisory jurisdiction. The Australian Constitution is now the defining feature and dominant force of our judicial review doctrine.

The key feature of the Australian Constitution that has enabled the recognition and entrenchment of judicial review of administrative action is the express creation and entrenchment of the courts. The express recognition and protection of a selection of the judicial remedies has proved equally important because the constitutional mention of some of the traditional remedies of judicial review has provided the foundation for the courts to entrench by implication that which necessarily precedes the issue of those remedies. While these and other important elements of the Australian Constitution have enabled the development of constitutionally protected avenues of supervisory review, this same constitutional foundation has also provided the source of judicial review principles that increasingly differ from their early English heritage. Many parallels between English and Australian principles remain and the one we discuss about natural justice suggests that, as happens within so many families, Australian judicial review can unwittingly replicate the mistakes of its English parent.

Access here

Centre: CIPL

Research theme: Administrative Law

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Towards the Uberisation of Legal Practice

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

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

Read on SSRN

Centre: CIPL

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

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Values. The Flip-Side of the Wellbeing Coin

Author(s): Vivien Holmes

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

Read on SSRN

Centre: CIPL

Research theme: Legal Education, The Legal Profession

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When Is the Advancement of Religion Not a Charitable Purpose?

Author(s): Pauline Ridge

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

Read on SSRN

Centre: CCL

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

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

Author(s): Esme Shirlow

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

Read on SSRN

Centre: CIPL

Research theme: International Law

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Jurisdictional Error As Conceptual Totem

Author(s): Leighton McDonald

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

Read on SSRN

Centre: CIPL

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

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

Author(s): Greg Weeks

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

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

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

Author(s): Stephen Bottomley

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

Read on SSRN

Centre: CCL

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

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The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

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

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

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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The Antarctic Treaty at Sixty Years: Past, Present and Future

Author(s): Donald Rothwell

The Antarctic Treaty, which celebrates its 60th anniversary in 2019, remains as a unique example of an international law instrument that seeks to provide a governance mechanism for a single continent. Both Japan and Australia were original parties to the Antarctic Treaty and have been strong supporters of the Treaty throughout its lifetime. However, in 2019 questions are starting to be raised as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica. These questions relate to the role of the seven Antarctic claimant States, the role of historically prominent non-claimant States such as the United States and the Russian Federation, and the interests of powerful ‘new’ States that are beginning to express a strong interest in polar affairs such as China. This paper assesses whether the Antarctic Treaty is sufficiently robust to address the challenges that confront Antarctic governance in 2019 and into the future. Particular attention will be given to whether it remains possible for Treaty parties to request an Article XII ‘Review Conference’, and also the 1991 Madrid Protocol Article 25 review mechanisms.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

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Destination Australia: Journeys of the Moribund

Author(s): Kate Ogg

Australia sends many of those who come in search of refuge to regional processing centers in Nauru and Manus Island, Papua New Guinea. Most of these asylum seekers and refugees want to continue their journey to Australia but the Australian Government has vowed that none will be given protection in Australian territory. However, there have been recent developments in the Federal Parliament and Federal Court that have paved the way for certain asylum seekers and refugees in Nauru and Manus Island to come to Australia. In this chapter, I investigate these legislative and judicial developments and argue that they indicate that the place of human rights and international law is becoming increasingly peripheral in Australia’s refugee law and policy and instead transfers to Australia have become medicalized. Australia’s parliamentarians and courts have moved to protect asylum seekers’ physical and mental health but not the rights flowing to them as people, children, and refugees. Asylum seekers and refugees must be moribund before they can use legal processes to transfer to Australia and they come as sick people in need of medical care—not as bearers of legal rights. These developments hamper larger efforts to end or fundamentally reform Australia’s offshore processing regime.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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New Directions in Article 1D Jurisprudence: Greater Barriers for Palestinian Refugees Seeking the Benefits of the Refugee Convention

Author(s): Kate Ogg

This chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. In theory, these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary. Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this can serve to disadvantage Palestinian women and girls. Consequently, these decisions create additional and often-insurmountable barriers to Palestinian refugees seeking the benefits of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

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

Read on SSRN

Centre: CIPL

Research theme: International Law

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Algorithmic Decision-Making and Legality: Public Law Dimensions

Author(s): Will Bateman

Automating the exercise of statutory powers through algorithmic decision-making carries high levels of legal risk. Fundamental public law doctrines assume that legal powers will be exercised by a particular kind of decision-making agent: one with sufficient cognitive capacities to understand the interpretative complexity of legal instruments and respond to highly dynamic environments. Public law doctrines also assume that clear reasons can be given for the exercise of public power and, by default, attribute legal responsibility for the exercise of statutory powers to a human being bearing political and social responsibility. Those doctrines provide the standards against which the legality of algorithmic decision-making in the public sector must be tested and, until they are met, lawyers should be sceptical of suggestions that statutory powers can be automated.

Read on SSRN

Centre: CIPL

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

Government Liability: Principles and Remedies

Government Liability: Principles and Remedies

Author(s): Greg Weeks, Dr Janina Boughey, Dr Ellen Rock

Given the degree of power wielded by Australian government officials and entities, it is unsurprising that government decisions and conduct frequently impact on individuals. To find the most appropriate way to resolve a particular case, practitioners must be able to work across the traditional legal ‘silos’, drawing on public and private law principles as well as the important, and often under-valued, roles of non-legal accountability mechanisms. This book familiarises readers with some of the complexities underpinning this area and covers public law remedies, private law remedies, and statutory remedies.

Purchase your copy online

Centre: CIPL

Research theme: Administrative Law

Danse Macabre by Desmond Manderson

Danse Macabre: Temporalities of Law in the Visual Arts

Author(s): Desmond Manderson

The visual arts offer refreshing and novel resources through which to understand the representation, power, ideology and critique of law. This vibrantly interdisciplinary book brings the burgeoning field to a new maturity through extended close readings of major works by artists from Pieter Bruegel and Gustav Klimt to Gordon Bennett and Rafael Cauduro. At each point, the author puts these works of art into a complex dance with legal and social history, and with recent developments in legal and art theory. Manderson uses the idea of time and temporality as a focal point through which to explore how the work of art engages with and constitutes law and human lives. In the symmetries and asymmetries caused by the vibrating harmonic resonances of these triple forces - time, law, art - lies a way of not only understanding the world, but also transforming it.

Centre: CLAH

Research theme: Legal Theory

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