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.

Seeding Australian Regulation of Genomics in the Cloud

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Cloud computing has facilitated a revolution in genome sequencing. As big data and personalized medicine increase in popularity in Australia, are the legal and regulatory regimes surrounding this nascent area of scientific research and clinical practice able to protect this private information? An examination of the current regulatory regime in Australia, including the Privacy Act 1988 (CTH) and medical research laws that govern cloud-based genomics research highlights that the key challenge of such research is to protect the interests of participants while also promoting collaborative research processes. This examination also highlights the potential effect that the Trans-Pacific Partnership Agreement’s Electronic Commerce Chapter may have had on using the cloud for genomics and what the consequences may have been for researchers, clinicians and individuals. Lessons learnt here will be relevant to studying similar impacts from other trade and investment agreements such as the Trade in Services Agreement (TiSA).

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Regulation of Medical Professionals and National Security: Lessons from Three Case Studies

Author(s):

In recent times, Australia’s national security concerns have had controversial impacts on regulation of Australian medical practitioners in areas related to immigration detention. This column explores three recent case studies relevant to this issue. The first involves the enactment of the Australian Border Force Act 2015 (Cth), which has a significant impact on the regulation of medical professionals who work with people in immigration detention. The second involves the decision of the High Court of Australia in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 that an amendment to Australian federal legislation justified sending children back to immigration detention centres in Papua New Guinea and Nauru. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. As a response to that decision, application of the principle of loyalty to the relief of individual patient suffering has guided the decision-making of health professionals who have refused to discharge children from hospitals if that means returning them to offshore immigration detention centres. This legislation was previously heavily criticised by the Australian Human Rights Commissioner. The third case study concerns the deregistration of Tareq Kamleh, an Australian doctor of German-Palestinian heritage who came to public attention on ANZAC Day 2015 with his appearance online in a propaganda video for the Islamic State terrorist organisation al-Dawla al-Islamyia fil Iraq wa'al Sham, also known as Islamic State of Iraq and Syria (ISIS) or Daesh. Dr Tareq Kamleh, an Australian, travelled to Syria and joined the Islamic State (IS) a terrorist organisation whose targeted killing of innocent civilians typifies the terror that has contributed to the influx of refugees into Australian and other immigration detention centres. Australia’s Our professional regulatory system should presumptively respect professional virtues, such as loyalty to the relief of individual patient suffering, when dealing with doctors (whether in Australia or ISIS-occupied Syria or Australia) working under regimes whose principles appear inconsistent with those of ethics and human rights.

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Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia

Author(s): David Letts

The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales [2015] HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

Read on SSRN

Centre: CIPL, CMSL

Research theme: Military & Security Law

Constructive Trusteeship: The Perils of Statutory Formulae

Author(s): Darryn Jensen

This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.

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Centre: CCL

Research theme: Legal Theory, Private Law

The Boundary between 'Not-for-Profits' and Government

Author(s): Darryn Jensen

This chapter attempts to trace the development of a concept of voluntariness. This cannot be done by reference to a category of 'not-for-profit', for that category is a recent invention. Instead, the history of voluntariness is to be found in the history of two other concepts which might be seen to be distinguishable from government - charity and civil society. These concepts are neither wholly distinct from, nor coterminous with, 'not-for-profit'. Once the histories of these concepts have been considered, the normative determinacy of the concept of voluntariness will be considered in the light of some contemporary intersections of government and not-for-profit activity.

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Centre: CCL

Research theme: Legal Theory, Private Law

Modern Equity: Revolution or Renewal from Within?

Author(s): Pauline Ridge

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

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Centre: CCL

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

The Centralisation of Judicial Power within the Australian Federal System

Author(s): James Stellios

This article considers the patterns of centralisation within the federal judicial system. While centralisation of legislative, executive and fiscal power within the federal system has been well documented, the architecture of judicial federalism has been the subject of less attention. The article, first, seeks to show that principles derived from Chapter III of the Constitution have, on the whole, exhibited broadly similar centralising characteristics and exerted centralising effects, and, secondly, offers explanations for this centralisation.

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Centre: CIPL

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

Gender Quotas on Boards -- Is it Time for Australia to Lean in?

Author(s): Peta Spender

This article examines whether Australia should introduce a gender quota on ASX 200 boards. Although existing institutional arrangements favour voluntary initiatives, Australia may be at a critical juncture where two factors — the public, pragmatic nature of the statutory regulation of corporations in Australia and the current salience of gender as a political issue — may favour the introduction of a quota. In particular, Australian policy-makers may be amenable to change by observing initiatives from other jurisdictions. It is argued that we should maintain a healthy scepticism about functionalist arguments such as the business case for women on boards. Rather, we should invoke enduring justifications such as equality, parity and democratic legitimacy to support a quota. The optimal design of an Australian gender board quota will be also be explored.

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Centre: CCL

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

The Food and Agricultural Organization and Food Security in the Context of International Intellectual Property Rights Protection

Author(s): Dilan Thampapillai

This chapter identifies the causes of chronic food insecurity as a form of market failure facilitated by the rules of international intellectual property law, as primarily embodied in the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS). While acknowledging that food insecurity is not a problem solely created by the post-TRIPS legal environment, this chapter argues that the legal rules on intellectual property play a significant role in supporting and encouraging those market forces that adversely impact upon the access, availability and affordability of food, and in causing significant disruptions to the traditional farming practices of farmers in the Global South. International responses, orchestrated by the Food and Agricultural Organization (FAO), to the food security problem in the context of agriculture, comprising the movement towards farmer’s rights and the right to food, have offered some useful solutions to the crisis. After examining the legal frameworks relevant to food security, this chapter provides three critiques of FAO’s response to the problem of food security with the finding that the regime conflict deprives FAO of a useful role in norm creation, effective administration of food security, and reconciliation of ‘norm collision’ to overcome a property-type policy response.

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Centre: CCL

Research theme: International Law, Law and Technology, Private Law

Australian Constitutionalism and the UK-Style Dialogue Model of Human Rights Protection

Author(s): James Stellios

This paper considers the constitutional obstacles in Australia to the effective operation of a UK-style dialogue model of human rights protection. In Momcilovic v The Queen, the High Court of Australia relied upon separation of judicial power principles to frustrate the operation of dialogue models in Australia: whether enacted at the federal or State level. As a consequence, constitutionalism Australian-style – specifically, separation of powers implications – presents impenetrable obstacles to the effective operation of a UK-style dialogue model, and has locked in a limited role for the judiciary in the protection of rights.

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Centre: CIPL

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

Administrative decision making

Administrative Decision-Making in Australian Migration Law

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The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia’s most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law. Through personal recollections and a comprehensive analysis of administrative decision-making, Alan Freckelton brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

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Centre: CIPL

Research theme: Administrative Law, Migration and Movement of Peoples

Zine's The High Court and the Constitution

Zines's The High Court and the Constitution

Author(s): James Stellios

It has been seven years since the last edition of Professor Zines’s classic book, The High Court and the Constitution. In that time the High Court has handed down a range of important decisions transforming, extending and developing existing constitutional law principles. In this 6th edition of the book, by Dr James Stellios, analyses and critiques the High Court’s jurisprudence over that period. Changes have been made to all chapters to update the existing law. The most significant updates relate to: the reformulation of the Commonwealth’s executive power to contract and spend following the High Court’s decisions in Pape and the two Williams cases; the High Court’s continuing development of Chapter III principles, particularly its renewed interest in the Kable limitation on State Parliaments; the uncertainties appearing in recent High Court cases on the implied freedom of political communication; and the High Court’s application of s 92 to national markets in the internet-based new economy.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Legal perspectives on Security Institutions

Legal Perspectives on Security Institutions

Editor(s): Kim Rubenstein

Due to the continuing expansion of the notion of security, various national, regional and international institutions now find themselves addressing contemporary security issues. While institutions may evolve by adjusting themselves to new challenges, they can also fundamentally alter the intricate balance between security and current legal frameworks. This volume explores the tensions that occur when institutions address contemporary security threats, in both public and international law contexts. As part of the Connecting International with Public Law series, it provides important and valuable insights into the legal issues and perspectives which surround the institutional responses to contemporary security challenges. It is essential reading for scholars, practitioners and policy makers seeking to understand the legal significance of security institutions and the implications of their evolution on the rule of law and legitimacy.

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Centre: CIPL, CMSL

Research theme: Human Rights Law and Policy, Military & Security Law

Regulating Business for Peace

Regulating Business for Peace: The United Nations, the Private Sector, and Post-Conflict Recovery

Author(s): Jolyon Ford

This book addresses gaps in thinking and practice on how the private sector can both help and hinder the process of building peace after armed conflict. It argues that weak governance in fragile and conflict-affected societies creates a need for international authorities to regulate the social impact of business activity in these places as a special interim duty. Policymaking should seek appropriate opportunities to engage with business while harnessing its positive contributions to sustainable peace. However, scholars have not offered frameworks for what is considered 'appropriate' engagement or properly theorised techniques for how best to influence responsible business conduct. United Nations peace operations are peak symbols of international regulatory responsibilities in conflict settings, and debate continues to grow around the private sector's role in development generally. This book is the first to study how peace operations have engaged with business to influence its peace-building impact.

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Centre: CCL, CIPL, LGDI

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

Accessories in Private Law

Accessories in private law

Author(s): Pauline Ridge, Joachim Dietrich

Accessory liability is an often neglected but very important topic across all areas of private law. By providing a principled analytical framework for the law of accessories and identifying common themes and problems that arise in the law, this book provides much-needed clarity. It explains the fundamental concepts that are used to impose liability on accessories, particularly the conduct and mental elements of liability: 'involvement' in the primary wrong and (generally) knowledge. It also sets out in detail the specific rules and principles of liability as these operate in different areas of common law, equity and statute. A comparative study across common law and criminal law jurisdictions, including the United States, also sheds new light on what is and what is not accessory liability.

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Centre: CCL

Research theme: Criminal Law, International Law, Private Law

Europe at the Edge of Pluralism

Europe at the Edge of Pluralism

Editor(s): , Magdalena Kmak

This volume tackles contemporary problems of legal accommodation of diversity in Europe and recent developments in the area in diverse European legal regimes. Despite professing the motto 'Unity in Diversity,' Europe appears to be struggling with discord rather than unity. Legal discussions reflect a crisis when it comes to matters of migration, accommodation of minorities, and dealing with the growing heterogeneity of European societies. The book illustrates that the current legal conundrums stem from European oscillation between, on the one hand, acknowledging the need of accommodation, and, on the other, the tendencies to preserve existing legal traditions. It claims that these opposite tendencies have led Europe to the edge of pluralism. This 'edge' - just as with the linguistic interpretation of the word 'edge' - carries multiple meanings, conveying a plethora of problems encountered by law when dealing with diversity. The book explores and illustrates these multiple 'edges of pluralism,' tracing back their origins and examining the contemporary legal conundrums they have led to.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Gender, Law and Religion, Migration and Movement of Peoples

Nanotechnology: Toward the Sustainocene

Nanotechnology Toward the Sustainocene

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While the sustainability of our world is being endangered or destroyed by the misguided activities of artificial human entities, real people have begun to expand their moral sympathies sufficiently to prioritize protecting our world’s interests. They have developed a new technology - nanotechnology - that has the potential to advance human society toward a period of long-term sustainability, termed "the Sustainocene". This book comprises chapters by experts in various fields of nanotechnology and in related areas of governance under the theme of how nanotechnology can assist in the creation of the Sustainocene. The book will appeal to anyone involved in nanotechnology, macromolecular science, public policy related to sustainability, renewable energy, and climate change.

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Centre: CIPL

Research theme: Health, Law and Bioethics

The Politics of Jurisprudence

The Politics and Jurisprudence of the Chaudhry Court 2005-2013

Editor(s): Moeen Cheema, Ijaz Shafi Gilani

Former Chief Justice of Pakistan Iftikhar Muhammad Chaudhryas tenure, from 2005 to 2013, has been characterized by remarkable developments in constitutional politics and the jurisprudence of the apex court. This was also a period of great controversy and the actions of the Chaudhry Court polarized the debate on the role of the Supreme Court. Despite the emergence of such vociferous debate, a detailed scrutiny of the Chaudhry Courtas actions has thus far been lacking. This volume represents an attempt to fill this gap by closely analysing the jurisprudence of the Supreme Court and reflects on the likely legacy of Chief Justice Iftikhar Muhammad Chaudhryas tenure. The contributions also constitute an effort at deepening the debate that has surrounded the courtas actions during the last few years. It goes beyond the critique of the court on the grounds that it has acted politically and violated the constitutionally mandated separation of powers between the judiciary, the legislature, and the elected executive.

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Centre: CIPL

Research theme: Constitutional Law and Theory

The Law of the Sea

The Oxford Handbook of The Law of the Sea

Editor(s): Donald Rothwell, Alex G Oude Elferink, Karen N Scott, Tim Stephens

This book provides a landmark study into the law of the sea, taking stock of the majors developments, core concepts, and key challenges within this fundamental area of law. Written by over forty expert contributors, both eminent scholars and leading practitioners, it explores the most important issues facing the world's oceans and seas, including piracy, climate change, and military operations.

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Centre: CMSL

Research theme: International Law

Legal Psychology in Australia

Legal Psychology in Australia

Author(s): Mark Nolan, Jane Goodman-Delahunty

Legal Psychology in Australia is an introductory book aimed at enabling the teaching of legal psychology to law students, (forensic) psychology students, criminology students, and a range of students from diverse professions (eg. social work, psychiatric nursing, mediation, policy-makers, and investigative journalism) relevant to the legal system. Authored by experienced empirical legal psychological researchers and teachers Mark Nolan and Jane Goodman-Delahunty, Legal Psychology in Australia will encourage law students to learn more about the psychological evidence base that can and should be used as the basis for law reform and the analysis of Australian law in action.

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Centre: CMSL, LGDI

Research theme: Law and Psychology

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team