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 ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

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

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Rights, Religious Pluralism and the Recognition of Difference: Off the scales of justice

Author(s):

Human rights and their principles of interpretation are the leading legal paradigms of our time. Freedom of religion occupies a pivotal position in rights discourses, and the principles supporting its interpretation receive increasing attention from courts and legislative bodies. This book critically evaluates religious pluralism as an emerging legal principle arising from attempts to define the boundaries of  freedom of religion. It examines religious pluralism as an underlying aspect of different human rights regimes and constitutional traditions.

Order your copy online

Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Religion

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Editor(s): Donald Rothwell, David Letts, joe bloggs

Centre:

Research theme:

The Law of Deliberative Democracy

The Law of Deliberative Democracy

Author(s): Ron Levy, Graeme Orr,

Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals.

Order your copy online.

Centre: DGAL

Research theme: Legal Theory, Regulatory Law and Policy

Unintended consequences

Unintended consequences: the impact of migration law and policy

Editor(s):

This book arose from an inaugural conference on Migration Law and Policy at the ANU College of Law. The conference brought together academics and practitioners from a diverse range of disciplines and practice. The book is based on a selection of the papers and presentations given during that conference. Each explores the unexpected, unwanted and sometimes tragic outcomes of migration law and policy, identifying ambiguities, uncertainties, and omissions affecting both temporary and permanent migrants. Together, the papers present a myriad of perspectives, providing a sense of urgency that focuses on the immediate and political consequences of an Australian migration milieu created without due consideration and exposing the daily reality under the migration program for individuals and for society as a whole.

Download for free or buy a printed copy here

Centre:

Research theme: Migration and Movement of Peoples

Being Well in the Law

Being Well in the Law

Author(s): Tony Foley, Vivien Holmes, Stephen Tang, Colin James, Ian Hickey

When it comes to wellbeing, NSW Young Lawyers, the Australian National University and the Law Society of New South Wales are keen to lead. Being Well in the Law is a toolkit for lawyers. It draws on expert and multidisciplinary knowledge about the breadth of mental health problems and offers ideas to help everybody, young and old, deal with depression, anxiety and stress and learn to better manage the business and pressures of work and life. We all share a responsibility to continue the conversation about mental health. In the legal profession this is especially important as lawyers have a heightened pre disposition to depression and mental illness. 

This small but important book, with its varied suggestions and personal stories from people who have been touched by mental illness, is a solid first step towards a happier and healthier world.

View the guide online, order a free copy online, or pick up a free copy in person

Centre: PEARL

Research theme: Law and Psychology, Legal Education, The Legal Profession

Spender Civil procedure commentary

Civil Procedure - Commentary and Materials (6th edition)

Author(s): Peta Spender, Molly Townes O'Brien, S Colbran, R Douglas, S Jackson, T Penovic.

Civil Procedure — Commentary and Materials provides students and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. This text combines a wealth of primary and secondary materials from all jurisdictions. The common law is clearly set out, together with extensive practical commentary. Each chapter features in-depth questions and notes together with lists of further reading to aid and extend understanding of the issue. It also examines and discusses each substantive and procedural step in the trial and appeal process.

This sixth edition contains completely revised and updated legislation, Rules of Court, cases and articles.

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Centre:

Research theme: Private Law

Australian Citizenship Law

Australian Citizenship Law 2e

Author(s): Kim Rubenstein

Citizenship is the pivotal legal status in any nation-state. In Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law sheds light on citizenship law and practice and provides the most up-to-date analysis available of the Australian Citizenship Act 2007 (Cth).

Rubenstein’s Australian Citizenship Law is the much-awaited second edition to her highly acclaimed text. It has been cited in High Court decisions, referred to in national and international academic work and used extensively by practitioners working in citizenship law, migration law, constitutional and administrative law and is an essential resource for migration agents.

Moreover, because of its broader analysis, it is crucially relevant to any discipline associated with citizenship, including, history, politics, education or sociology, and to government officials working in the area of citizenship, especially those working in our embassies and consulates.

Purchase your copy here

Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law

Australia's Constitutional Government

Australia’s Constitutional Government

Author(s): , Jack Richardson

This book comprehensively describes Australia’s unique pattern of constitutional government. Jack Richardson was always convinced that the legal basis of federal government and the evolving patterns of power should be understandable — not just to experts in constitutional law, but to people in all walks of life. He believed that knowledge of the principles by which we are governed must be available to the general public, and to participants in the federal system. The author advances expert knowledge by divining those principles. By describing their operation in words intelligible to readers who are not legally qualified, he achieves his aim of acquainting a much wider range of people with the powers that rule them.

The result is a book that will be a great help to students and scholars of law, government, politics and history, as well as a useful guide for administrators, journalists, politicians and legal practitioners. Anyone who needs a straightforward explanation of an element of constitutional government will value the understanding they can easily get from the book.

Order your copy online

Centre: CIPL

Research theme: Constitutional Law and Theory

Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary, 10th Edition

Author(s): James Stellios, D Meagher

This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. It reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis. The book covers all major areas of study in both constitutional law and public law.

Updates for this edition include the two Williams cases in which the High Court reworked the executive power of the Commonwealth to contract and spend; recent cases developing the Kable principles and considering the validity of State laws against Chapter III implications; important recent cases on the implied freedom of political communication; recent cases on s 92 of the Constitution dealing with internet trade and commerce.

Order your copy online

Centre: CIPL

Research theme: Constitutional Law and Theory

Did Defensive Homicide in Victoria Provide a Safety Net for Battered Women Who Kill? A Case Study Analysis

Author(s): Anthony Hopkins

This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We suggest that, in the absence of the offence of defensive homicide, women like Williams may in the future be convicted of murder, even when they kill in response to family violence and with a genuine belief that their actions are necessary in self-defence.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Health Justice Partnership - Multi-Disciplinary Practices: Research Evidencing Working Ethically to Ensure Reach to Those in Most Need & Improve Outcomes (Presentation Slides)

Author(s): Elizabeth Curran

This paper examines the emergence of Health Justice Partnerships (HJP) in Australia and will discuss some of the ethical dilemmas and resolutions of these dilemma that have emerged during Curran's action research evaluations. These have been embedded in services from start-up undertaken by Curran. The evaluation research not only measures service effectiveness but also examines and measures positive outcomes and any progress in the social determinants of health as a result of the intervention. As the research empirical data has been analysed, what emerges is the elements leading to effectiveness for lawyers working in integrated models and ways to work ethically across different disciplines to achieve better outcomes including for their social determinants of health. This paper is to firm the basis of a refereed journal article to be submitted shortly end 2016.

Read on SSRN

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

Health Justice Partnerships (HJP): Working Ethically to Reach Those in Most Need of Legal and Medical Support & to Improve Outcomes – Research Evidence, a Seminar for City, University of London (Law School) 13 September, 2016, London (Presentation Slides)

Author(s): Elizabeth Curran

This presentation will examine the emergence of Health Justice Partnerships (HJP) in Australia and will discuss some of the ethical dilemmas and resolutions of these dilemmas that have emerged during Dr. Curran's action research evaluations. A Health Justice Partnerships (HJP) sees a partnership between a legal assistance (or legal aid) service and health services (including allied health services). Empirical research sees unresolved legal problems lead to poor health outcomes. In Australia and the UK those most likely to have multiple legal problems are the poor and disadvantaged and figures say only 13% - 16 % get help. In HJP the focus is on problem solving for client/patients with often complex and multiple problems and solving these in a holistic way through integrating legal and non-legal services to enable client access and seamless assistance. This presentation will also discuss the ethical issues and how these have been resolved due to the holistic client focus of all the professionals in the HJP examined.

Read on SSRN

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

Topic - 'Health Justice Partnerships (HJP) Research, Evaluations and Findings, and 'How To.'' Presentation Slides, Panel of the Legal Education Foundation UK & Allen & Overy, 12 September 2016, London, UK

Author(s): Elizabeth Curran

There is a growing evidence base demonstrating positive outcomes from the provision of legal advice in healthcare settings. In the US and Australia there are national centres that promote and co-ordinate this work, where they are respectively known as medical-legal partnerships and health justice partnerships. There are also multiple examples of good practice in the UK, captured by reports such as the Low Commission’s 2015 paper The Role of Advice Services in Health Outcomes. The Legal Education Foundation is keen to see the expansion of partnerships between health funders and providers and social welfare legal advice. There have been discussions about how to convert the isolated good practice into a more cohesive national system of health justice partnerships.

This event was a workshop, which heard from Dr Liz Curran, a leading academic in this field who has been involved in Health Justice Partnerships in Australia and Steven Schulman, a partner at Akin Gump who has worked on Medical-Legal Partnerships in the US. Professor Dame Hazel Genn with a UK perspective as a leading authority on access to civil and administrative justice and her work to develop a pioneering student law clinic based at the Guttman Health and Well-being Centre in east London. The workshop was designed to be participatory so as to hear about UK-based examples of best practice and to explore how best to build upon the work going on in the UK.

Read on SSRN

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

The Politics of the Rule of Law

Author(s): Moeen Cheema

In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.

Read on SSRN

Centre: CIPL, LGDI

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

International Lessons on Health Justice Partnerships: Their Applicability for Pro Bono Partners and Managers (Presentation Slides)

Author(s): Elizabeth Curran

This Panel/Workshop focuses on International Lessons on Health Justice Partnerships. Speakers including Dr Curran were asked to respond in an interactive session to the following headings:

i. Development of HJPs in Australia/USA

ii. Benefits of the model

iii. Evaluation of HJPs funded in Victoria

iv. Commonalities across projects

v. Key messages and lessons from evaluation

The session was held for UKAcademy which has been developed by the UK Collaborative Plan for Pro Bono, with planning support from the Association of Pro Bono Counsel. UKAcademy now comprises ten sessions focused on practical topics of relevance to those managing or developing pro bono in a law firm setting. Information-sharing is a cornerstone of the UK Collaborative Plan for Pro Bono. Members of the Plan have agreed to share data on pro bono activities, they share information on new pro bono opportunities, and they share practical knowledge to help expand their respective pro bono practices. The audience for this event was lawyers and managers employed by law firms who coordinate law firm pro bono programmes. The majority of audience members have a UK base, although joined by some colleagues from the USA.

The event was coordinated by Allen Overy's Pro Bono Manager Hayley Jones.

Read on SSRN

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

Realizing the Right to Health and Access to Justice for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)

Author(s): Elizabeth Curran

This Seminar was presented to post graduate students, academic staff and members of non-government organisations and examines recent evidence based research that examines the impact of Multi-Disciplinary Practice such as a Health Justice Partnership (HJP).

The seminar explores the HJPs impact on improving the outcomes of the social determinants of health for clients with legal problems that would otherwise not have been identified or resolved but for the HJP.

It also canvassed empirical data suggestive that there had also been enhancements to the professional capacity of lawyers, health and allied health professionals through working within an HJP setting that benefit clients and enable further reach in resolving legal problems capable of a solution.

Using research in Bendigo a regional, rural of Victoria, Australia the seminar discusses the nature of the research undertaken and key findings. The discussion then led to ideas around expansion of the HJP model in a Danish setting.

Read on SSRN

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

Human Rights and Realizing the Right to Health for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)

Author(s): Elizabeth Curran

This seminar/workshop examines innovations such as multi-disciplinary practice, specifically Health Justice Partnerships (HJP) and how they can enhance human rights adherence and protection.

Services are already hard to navigate for the most vulnerable and disadvantaged. Even where there is no court or tribunal case involved access to legal advice can be critical. It can save mistakes being made, help people understand their rights and responsibilities and according to my research on the impact of HJP's through evidence based field research, such models lead to early intervention and often prevention of problems or their escalation. Fundamental universal human rights such as the right to income support, the right not to experience inhumane or degrading treatment including poor housing, and rights to safety are all aspects that can see vulnerable and disadvantaged people needing legal advice and support.

It is also critical to the Rule of Law. (See author's comments, Chapter 1 (21) ‘Access to Justice’ Global Perspectives on Human Rights (3rd edition, 2015) OHRH, at 22).

This seminar/workshop discusses some of the human rights settings and what HJP can to do help realise rights to health and well being that are effected by the social determinants of health.

It examines some research and findings of the author including the types of lawyers that are critical to successful lawyering and health service support if those programs/services are to be effective in engaging the most vulnerable. The presentation also suggests how HJP might be explored in student clinics and in non government organisations doing work in developing countries which have limited resources and where the reach of HJPs, collaboration and capacity building can be critical. This feeds into Sen's notions of capability and empowerment and the critical importance of systemic work to solve the causes of problems including the alleviation of poverty.

Read on SSRN

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

Seminar: ‘Reaching People Currently Excluded by Improving Access to Justice Through Multi-Disciplinary Practices’: Health Justice Partnerships - Recent Research Findings’ (Presentation Slides)

Author(s): Elizabeth Curran

This seminar examined recent research findings from the author's research and evaluation of the Bendigo Health Justice Partnerships in a rural & regional are of Victoria based at the Bendigo Community Health Service at its site in a low -socioeconomic area in Australia, as a case study.

The paper also drew on Dr Curran's other research and some of the other research and literature on what can lead to effective legal service delivery and have a positive impact on outcomes and the social determinants of health.

The paper also highlighted the importance of professionals working together to better reach many in the community who have not been accessing legal help due to significant barriers, some of which are systemic, and what the quantitative and qualitative researcher data suggest are key elements in Health Justice Partnerships and Multi-disciplinary practices if they are to be effective.

The author highlights difference between models in the UK, USA and Australia but suggests the research still has some valuable lessons.

Dr Curran stressed that the qualitative data reveals that relationships, respect and trust, emerge as key, for effective services as legal assistance service is essentially human service delivery to people who have complex and multiple issues that make engagement difficult.

Dr Curran cautions against 'top down' 'siloed' service delivery noting that the evidence based research she has undertaken suggests that participatory service delivery that engages, builds capacity, collaborates and empowers providing a voice for community and professionals who deliver the services are all critical for an effective, efficient and well targeted service which the research is suggesting HJP can be if it has such elements in its approach.

Read on SSRN

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

'Measuring Impact and Evaluation: How and Why? And Some Tips': Workshop 10 – 11 November 2016 for Law Centres Network UK National Conference (Presentation Slides)

Author(s): Elizabeth Curran

This workshop was a practical workshop for Law centres across the UK about why evaluation of services to ascern effectiveness, quality and impact on clients and community is key It flagged some of the challenges of measuring impact, lessons and summarised key literature and research in the area. It also relayed experience of conducting such research and evaluation work and noted some cautions.

The workshop shared some ‘how to's’ from a vantage point of agencies who have limited resources but which would like to provide evidence of what they do, why they do it and how it has an impact, thus building an evidence base for what works well and why.

The workshop concluded by encouraging participants with some guidance from Dr Curran on how to identify some of the outcomes and way they might measure these and impacts of their service on clients and community.

Read on SSRN

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

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