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 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

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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

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.

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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

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

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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

'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

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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

Law Student Wellbeing: A Neoliberal Conundrum

Author(s): Margaret Thornton

The discourse around student wellness is a marked feature of the 21st century Australian legal academy. It has resulted in various initiatives on the part of law schools, including the development of a national forum. The phenomenon relates to psychological distress experienced by students ascertained through surveys they themselves have completed. Proposed remedies tend to focus on improving the law school pedagogical experience. This article argues that the neoliberalisation of higher education is invariably overlooked in the literature as a primary cause of stress, even though it is responsible for the high fees, large classes and an increasingly competitive job market. The ratcheting up of fees places pressure on students to vie with one another for highly remunerated employment in the corporate world. In this way, law graduates productively serve the new knowledge economy and the individualisation of their psychological distress effectively deflects attention away from the neoliberal agenda.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between ARC Justice Ltd and Bendigo Community Health Services

Author(s): Elizabeth Curran

This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017.

ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage.

ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution.

This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised.

The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.

Read on SSRN

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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

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

Coherence in the Age of Statutes

Author(s): Darryn Jensen

The High Court of Australia, in pursuing coherence between common law and statute law, has limited itself to ensuring that the rules of common law and statute law should be free of contradiction. The Court does not appear to have embraced the idea, which lies at the core of some major theories of private law, that a set of rules is coherent only if the set can be explained as the outworking of a single principle. Applying that idea to the relationship between common law and statute law is confronted by some serious challenges. In the past, coherence as non-contradiction (combined with the idea of parliamentary supremacy) has worked well as a means of reconciling common law with statute law, but the proliferation of legislation in recent years and the character of much modern legislation has drawn attention to the limitations of such an approach to the question. A more exacting approach to coherence of common law and statute law, on the other hand, would require the revision of some widely-held assumptions about the nature of law, such as the core assumption of legal positivism that the ultimate criterion of the authority of the law is its pronouncement by an authoritative institution.

Read on SSRN

Centre: CCL

Research theme: Legal Theory, Private Law

Squeezing the Life Out of Lawyers: Legal Practice in the Market Embrace

Author(s): Margaret Thornton

Neoliberalism is the dominant ideology of our time and shows no sign of abating. The undue deference accorded the economy and capital accumulation means that comparatively little attention is paid to the pressures this involves for workers. Although conventionally viewed as privileged professionals, lawyers in corporate law firms have been profoundly affected by the neoliberal turn as firms have expanded from local to national, to global entities, with the aim of maximising profits and making themselves competitive on the world stage. Although corporate clients may be located in a different hemisphere they still expect 24/7 availability of lawyers in contrast to what they normally expect of other professionals, such as accountants. A corollary of global competition is the ratcheting up of billable hours, which has engendered stress and depression. The pressure for firms to be more productive has resulted in increased levels of incivility, including bullying. Despite a plethora of reports attesting to the deleterious effects of stress, scant attention is paid to the neoliberalisation of legal practice. This article argues that the tendency to individualise and pathologise the adverse effects of stress and uncivil behaviours deflects attention away from the political factors that animate them.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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.

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Centre: CIPL, CMSL

Research theme: Military & Security Law

Avoiding Legal Black Holes: International Humanitarian Law Applied to Conflicts in Outer Space

Author(s): Cassandra Steer

The applicability of international humanitarian law (IHL) is not dependent on any domestic legal system, however its enforcement is at least partially subject to domestic application. There are scenarios in which States assert they can derogate from IHL and other rules of international law due to emergency or threats to security. When it comes to hostilities that take place in or through Outer Space, the fact that Outer Space may not be appropriated as sovereign territory means that regulation of military activities and their consequences are truly international. No State can exert exclusive jurisdiction over a breach of IHL that takes place “in” Outer Space. However this also means there is a greater risk of abuse of the rules of IHL by the creation of new legal black holes; if it’s up to individual States to interpret and apply these rules, they may attempt to justify unlawful derogations in the name of emergency or security. Generally IHL must apply to space in the same ways it applies to terrestrial conflicts, in the sense that justifiable derogations for reasons of national security are truly exceptional and very limited. The question then arises, can States derogate from either the space treaties or from IHL under claims of State security? This paper argues that the international rule of law ensures their continued application in times of conflict in Outer Space, and provides a set of principles that ensure the risk of legal black holes is limited.

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Telling a History of Australian Women Judges Through Courts' Ceremonial Archives

Author(s): Heather Roberts

Swearing-in ceremonies are held to mark the investiture of a new judge on the bench. Transcribed and stored within courts’ public records, these proceedings form a rich ‘ceremonial archive’. This paper showcases the value of this archive for the (re)telling of Australian legal history and, particularly, a history of Australian women lawyers. Using a case study drawn from the swearing-in ceremonies of women judges of the High Court, Federal Court, and Family Courts of Australia between 1993 and 2013, the paper explores what this archive reveals about the Australian legal community’s attitudes towards women in the law. It argues that despite the regional and jurisdictional differences between these courts, recurring themes emerge. Notably, while feminising discourse dominates the earlier ceremonies, stories of the judges’ personal and judicial identity come to display a more overt feminist consciousness by the end of the Labor Governments in power in Australia between 2007 and 2013.

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Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

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Does the World Need a Global Project on Artificial Photosynthesis?

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This paper introduces a theme issue of Interface Focus derived from papers presented at the Royal Society supported meeting ‘Do we need a global project on artificial photosynthesis?’ held at Chicheley Hall in July 2014. At that meeting, leaders of national solar fuels and chemicals projects and research presented ‘state of the art’ on artificial photosynthesis (AP) in the context of the policy challenges for globalizing a practical technology to address climate change and energy and food security concerns. The discussions included contributions from many experts with legal and policy skills and uniquely focused on producing principles for prioritizing and specializing work while enhancing the funding and attendant public policy profile. To this end, representatives of major public, philanthropic and private potential stakeholders in such a project (such as the Wellcome Trust, the Moore Foundation, Shell, the Leighty Foundation, the EPSRC and Deutsche Alternative Asset Management) were invited to provide feedback at various points in the meeting. For this Interface Focus issue, speakers at the Chicheley Hall meeting were required to present a snapshot of their cutting edge research related to AP and then draw upon the Chicheley Hall discussions to innovatively analyse how their research could best be advanced by a global AP project. Such multidisciplinary policy analysis was not a skill many of these researchers were experienced or trained in. Nonetheless their efforts here represent one of the first published collections to attempt such a significant task. This introduction contains a brief summary of those papers, focusing particularly on their policy aspects. It then summarizes the core discussions that took place at the Chicheley Hall meeting and sets out some of the central ethical principles that were considered during those discussions.

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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

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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

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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

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