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.

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

Editor(s):

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

Administrative Decision-Making in Australian Migration Law

Administrative Decision-Making in Australian Migration Law

Editor(s):

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.

Alan Freckelton has worked with the Migration Law Program since 2008. Through personal recollections and a comprehensive analysis of administrative decision-making, he 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, CMSL, LRSJ, PEARL

Research theme: Migration and Movement of Peoples

Partnerships in Healthcare Delivery: Health Justice Partnerships (Presentation Slides)

Author(s): Elizabeth Curran

Dr. Curran’s Conference Paper discusses how Health Justice Partnerships (HJPs) are reaching people who would otherwise not get help with their legal problems by community lawyers working in a multi-disciplinary setting. The paper shares her preliminary empirical research findings, case studies and some lessons.

The Bendigo HJP project is a partnership between ARC Justice’s Program and Bendigo Community Health Service. The HJP project aims to address the social determinants of health capable of legal redress. The partnership is based on the empirical data which reveals that many vulnerable and disadvantaged people do not consult lawyers for problems instead they see their trusted health worker.

An embedded evaluation is being undertaken by Dr. Liz Curran of ANU examining not only the effectiveness of the service but also measuring the social determinants of health. Dr. Curran has a practical background in the community health sector. She is also involved in other HJP evaluations and service start-ups in Australia and Canada. Critically, this evaluation includes the clients and service providers and their experience in its process. This is ethical and ensures the measurements are not remote from the reality of the lives of people the HJP is assisting.

The evaluation is gathering qualitative as well as quantitative data so is not a process evaluation. In Australia there is little money for evaluation and services are keen to evaluate. The paper discusses the empirical research which reveals the HJP is reaching community members who are otherwise excluded. Findings include the value of legal secondary consultations in building confidence and capacity of non-legal professionals to assist clients through legal information being readily accessible through consultations with a lawyer.

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Centre:

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Conference Paper- ‘Access to Justice – Making it Come Alive and a Reality for Students and Enabling Engaged Future Practitioners’

Author(s): Elizabeth Curran

The presentation commenced with a 20 minute discussion and illustration by Dr. Liz Curran who has worked for many years as a clinical legal education supervising solicitor in an academic role and now works in Professional Legal Training role in the ANU Legal Workshop. She has been an active researcher on access to justice and human rights for over a decade with numerous research projects, articles and as a commentator.

In 2008 Dr Curran wrote in the Alternative Law Journal that ‘from this vantage point, being an academic and a practitioner, a constructive inter-play occurs where theory can inform practice and vice versa.’ It is this inter-play which can make a valuable contribution to policy debates, student learning and development and their sense of being involved in upholding justice and the rule of law. From such a vantage point, universities in their teaching and research and policy makers can tap into evidence based information on the experience of the day-to-day dilemmas facing the members of the community for whom survival, emotional and physical well-being can be precarious.

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Centre:

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Preliminary Findings on the Value of Secondary Consultations in Reaching Hard to Reach Clients and in Building Professional Capacity

Author(s): Elizabeth Curran

For ten years in a CLC setting Curran routinely conducted secondary consultations for non-legal professional staff. Since 2011, Dr Curran has undertaken research evaluations of services that now form what are now collectively described in Australia as ‘Health Justice Partnerships’. Dr Curran will outline preliminary findings in the under-researched area of the impact of secondary consultations. Evidence is emerging from evaluation research on a range of Health Justice Partnerships (where a lawyer works in a multidisciplinary health and allied health setting) including a family violence program, a project examining urban mortgage stress/well being, a program where a lawyer is based within a health service in a regional setting and in relation to a specialist Community Legal Centre (the Consumer Action Law Centre) non legal worker advice line which integrate legal and non-legal services. This paper highlights the impact secondary consultation has and is having in terms of reaching hard to reach clients and building capacity of non-legal professionals in a climate of limited resources.

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Centre:

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Medical-Legal Partnership: Prevention, Access to Justice and the Next Generation of Legal and Healthcare Professionals.

Author(s): Elizabeth Curran

Inequality of access to legal services is a significant problem in Australia.

In a panel discussion Dr. Curran of the Australian National Research gave a short paper responding to the key note address by Liz Tobin Tyler, Adjunct Professor, the Roger Williams University School of Law in Rhode Island and Assistant Professor of Family Medicine at the Alpert Medical School of Brown University and of Health Services, Policy and Practice at the Brown University School of Public Health on the topic ‘Medical-legal partnership: Prevention, access to justice and the next generation of legal and healthcare professionals.’

In the response Dr. Curran noted similarities and difference between the USA and Australia and reports on her participatory action research that ANU has been commissioned to undertake in a range of Health Justice Partnerships (HJP) including the embedded research evaluation of ACR Justice Bendigo pilot of an HJP which commenced in January 2015. The Executive Officer of ARC Justice, Peter Noble has also asked Dr. Curran to measure impacts of the HJP on the social determinants of health which she is grappling with given international recognition of the challenge. Dr. Curran has come up with some tools informed by affected community, service providers and international research in an action research collaborative approach within a continuous learning, reflection and development model and is using these to measure in concrete terms the social determinants of health outcomes from the HJP.

Dr. Curran discussed a number of Australian HJP evaluations in terms of quality, impact, outcomes and the social determinants of health. She discusses tools and some preliminary findings in the various research projects which are ongoing.

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Centre:

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Health Justice Partnership Research ANU Research in Progress Seminar (Presentation Slides)

Author(s): Elizabeth Curran

Research by the Legal Services Research Centre (UK) and the Australian LAW Survey demonstrates that unresolved legal problems are likely to have deleterious impact on stress and health outcomes. Individuals only consult lawyers for about 16% of their legal problems and a key access point for disadvantaged individuals is the health profession. Research shows legal problems have a detrimental impact on the health and well being of individuals.

The Health Justice Partnerships (HJP) see lawyers working alongside health and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. The author is evaluating and assisting in some start –ups of HJPs across Australia and in Canada. She will discuss her work so far but the paper focuses on the project that is the most advanced in Bendigo.

The Bendigo Health Justice Partnership (HJP) project is a partnership between ARC Justice’s Program and Bendigo Community Health Service. The HJP project aims to address the social determinants of health capable of legal redress. The partnership is based on the understanding that many vulnerable and disadvantaged people do not consult lawyers for problems instead they see their trusted health worker.

An embedded evaluation is being undertaken by Dr Liz Curran of ANU examining not only the effectiveness of the service but also measuring the social determinants of health. Dr Curran has a practical background in the community health sector. Critically, this evaluation includes the clients and service providers and their experience in its process.

With ethics approval the evaluation is gathering qualitative as well as quantitative data in a context where there is little money for evaluation and services are keen to evaluate. This paper will discuss the evaluative process, present findings and some lessons emerging so far, in this three year longitudinal study. The study uses a participatory action research approach within a model of continuous reflection, development and improvement so as to inform policy and funding building and empirical evidence base to good practice to reach people who would otherwise not gain legal help.It measures the impacts on social determinants of health, an area largely un-chartered and so this methodology hopes to add to the polity around how social determinants of health might be measured and what they look like in reality for people affected.

The Final Report is due to be finalised at the end of 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 Partnership Research ANU Research in Progress Seminar (Presentation Slides)

Author(s): Elizabeth Curran

Research by the Legal Services Research Centre (UK) and the Australian LAW Survey demonstrates that unresolved legal problems are likely to have deleterious impact on stress and health outcomes. Individuals only consult lawyers for about 16% of their legal problems and a key access point for disadvantaged individuals is the health profession. Research shows legal problems have a detrimental impact on the health and well being of individuals.

The Health Justice Partnerships (HJP) see lawyers working alongside health and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. The author is evaluating and assisting in some start –ups of HJPs across Australia and in Canada. She will discuss her work so far but the paper focuses on the project that is the most advanced in Bendigo.

The Bendigo Health Justice Partnership (HJP) project is a partnership between ARC Justice’s Program and Bendigo Community Health Service. The HJP project aims to address the social determinants of health capable of legal redress. The partnership is based on the understanding that many vulnerable and disadvantaged people do not consult lawyers for problems instead they see their trusted health worker.

An embedded evaluation is being undertaken by Dr Liz Curran of ANU examining not only the effectiveness of the service but also measuring the social determinants of health. Dr Curran has a practical background in the community health sector. Critically, this evaluation includes the clients and service providers and their experience in its process.

With ethics approval the evaluation is gathering qualitative as well as quantitative data in a context where there is little money for evaluation and services are keen to evaluate. This paper will discuss the evaluative process, present findings and some lessons emerging so far, in this three year longitudinal study. The study uses a participatory action research approach within a model of continuous reflection, development and improvement so as to inform policy and funding building and empirical evidence base to good practice to reach people who would otherwise not gain legal help.It measures the impacts on social determinants of health, an area largely un-chartered and so this methodology hopes to add to the polity around how social determinants of health might be measured and what they look like in reality for people affected.

The Final Report is due to be finalised at the end of 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

Does the World Need a Global Project on Artificial Photosynthesis?

Author(s):

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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Centre:

Research theme:

Australian Competition and Consumer Commission v ACN 117 372 915: Should Consumer Law Regulate Doctor-Patient Relations in a Corporatised Health Care System

Author(s):

In April 2015, North J of the Federal Court made a finding of unconscionable conduct against Advanced Medical Institute, a promoter and provider of erectile dysfunction treatment, in a case concerning unfair contract terms (Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368). The contract required a minimum 12-month commitment, with costs exceeding treatments available from general practitioners, and made refunds available only after all possible treatment plans were exhausted which included penile injections. This column analyses that case, particularly in respect to the consumer law standards of practice under which it was litigated. Those standards refer to patients as “consumers” yet North J made extensive reference to the Good Medical Practice: A Code of Conduct for Doctors in Australia, a text which refers to “patients”, as evidence of what constitutes appropriate professional conduct or practice for the health profession. This column considers whether legislative and judicial categorisation of patients (a class of people presumptively suffering, sick and vulnerable) as “consumers” undermines the formal and informal protections accorded to patients under normative systems of medical ethics such as those represented by the Code. The case, it is argued, also illuminates the contemporary tensions between the ethical, legal and human rights standards required of doctors in their treatment of patients and the commercial interests of businesses.

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Centre:

Research theme:

Myriad Voices Against Gene Patents in the High Court

Author(s):

The Australian High Court’s recent landmark decision in D’Arcy v Myriad Genetics Inc overturned the decision by the Federal Court in Cancer Voices Australia v Myriad Genetics Inc regarding patenting of genetic material. The Federal Court had found that isolated DNA and RNA can constitute a patentable invention under s 18(1)(a) of the Patents Act 1990 (Cth). The decision by the High Court unanimously reversed this and declared it was appropriate to look to the policy implications at the heart of the legal question: are genes a category of things that can be patented? This column critically examines the implications of the High Court decision for both research and public health in Australia.

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Centre:

Research theme:

Australian Competition and Consumer Commission v Pfizer: Evergreening and Market Power as a Blockbuster Drug Goes Off Patent

Author(s):

In Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113 the ACCC alleged that Pfizer’s ‘Project LEAP’ involved a scheme to lock pharmacists into substituting its generic version of the high sales volume anti-cholesterol drug patent-expired Atorvastatin (Lipitor) which took advantage of a substantial degree of market power for a purpose proscribed by s 46(1)(c) of the Competition and Consumer Act 2010 (Cth). The ACCC also claimed that Pfizer’s actions constituted a course of exclusive dealing pursuant to s 47(1)(d) and (e) for the proscribed purpose of lessening competition. Flick J in the Federal Court of Australia in a judgment heavy with quotations but sparse in reasoning, dismissed the ACCC’s Amended Originating Application alleging abuse of market power and ordered the ACCC to pay Pfizer’s costs. This column explores that case in the context of Pfizer’s broader strategies to preserve its income globally from this high sales volume drug.

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Research theme:

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

Adventures in the Grey Zone: Constitutionalism, Rights and the Review of Executive Power in the Migration Context

Author(s): Matthew Zagor

The physical and legal isolation of the irregularly arriving non-citizen in Australia is a product of various legal strategies, from legislation mandating detention to the experimental 'excision' of parts of the country from the operation of statute and the scrutiny of the courts. Australia's innovative use of legislation to carve out spaces within which an unencumbered sovereign executive power can expand has unsurprisingly seen commentators turn to cosmological metaphors. This chapter builds upon David Dyzhenhaus' nuanced description of these spaces as 'grey holes' where the impression of legality is created by legislative and judicial endorsement of strategies which exclude meaningful judicial review of executive conduct. By reference to five recent cases in which these strategies were challenged, it explores the curious attempt to use the law in order to suspend the law, the changeable role of the judiciary in both consolidating and piercing these legislatively carved exclusionary zones, and the muscular anti-dialogic reassertion of legislative dominance that invariably accompanies perceived judicial interference. The chapter's principal aim is to use these case studies to map out the current state of both constitutional doctrine and institutional relations with respect to the rights of non-citizens in the exercise of executive power in Australia. It contrasts the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the impressive architecture of administrative justice developed over the past three decades, and considers the tension that surrounds contemporary appeals to 'sovereignty' as source of power, as well as the contentious role played by traditional legalism as both a shield and a sword in the court's juridical arsenal for scrutinizing rights-precluding executive conduct.

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Centre: CIPL, CLAH, LRSJ

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

The Public Law of Restitution

Author(s): Greg Weeks

Restitution as the response to unjust enrichment has been available for a long time. As a body of law, it has mainly related to transactions between private entities. The decision of the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 changed the law of restitution as it had developed in the UK up to that point. It did this by holding that an unlawful demand for a payment of tax which was not due was an unjust factor capable of making out unjust enrichment and enabling the claimant to obtain restitution of the money paid and interest. This government-only unjust factor operates in a fashion which is distinct from unjust factors which focus on the intention of the claimant to transfer wealth. Instead it asks whether the transfer of money was consequent on an unlawful demand. Woolwich has not as yet been adopted in Australia, but this article argues that it should be, albeit not as a direct constitutional claim. It further discusses the importance of Woolwich as a basis for restitution consequent on the use of soft law, which is a pervasive and highly effective means of regulation which otherwise results in almost no legal consequences.

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Centre: CIPL

Research theme: Administrative Law

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