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.

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.

Read on SSRN

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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Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber

Author(s): Donald Anton

On 1 February 2011, the Seabed Disputes Chamber (“the Chamber”) delivered its first Advisory Opinion. The Opinion provides useful guidance to the international community concerned with the deep seabed. First and foremost, the Chamber accomplished its task to assist the ISA with independent and impartial judicial interpretation of the Convention and related instruments. States that intend to extract valuable resources now know that they must evaluate their legal codes, administrative capacity, and their judicial enforcement mechanisms to determine where they fall short of the standards that the Chamber has identified. For most states it will be necessary to introduce new laws to provide the requisite rules, regulations and procedures. Entities seeking sponsorship will likely wish to work with these governments to develop a workable regime. Other entities, such as those interested in scientific research, other economic uses, and protection of the ocean and seabed resources, will want to assist with this process to ensure that their interests are respected and that developing states are given assistance to develop appropriate laws and enforcement capacity. Finally, the limitations and gaps in the Convention’s liability scheme have now been identified and await the international legal community’s attention.

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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

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.

Find online at ANU Press

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

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.

Free download or order a printed copy

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