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 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

The Practice of Law and the Intolerance of Certainty

Author(s): Stephen Tang, Tony Foley

This paper seeks to challenge a lingering view that law is and should be intolerant of uncertainty and must strive for certainty. Although inconsistent with the embedded uncertainty and ambiguity of law as a system, there is still an implicitly accepted view that the practice of law, and the role of lawyers, is to make determinate the indeterminate, to use legal rules to remove the uncertainty from human existence. This paper provides a preliminary sketch of an alternative and humanising epistemology of law in practice, one that embraces and makes adaptive use of uncertainty at the level of psychological experience, rather than just at a conceptual or institutional level. It focuses its attention on the preparation for practice of new lawyers and their lived experience of uncertainty as one of the defining aspects of their transition from law student. In the process, the paper challenges the conventional perceptions that thinking like a lawyer involves an additive set of skills sitting above and beyond those of ordinary thinking. Learning to think like a lawyer is more often subtractive, leaving out the messy world and in the process leaving out the messiness of uncertainty. As an alternative, the paper examines what many good lawyers have taught themselves: the importance of embracing uncertainty, complexity and acquiring a healthy intolerance of certainty. It suggests these skills and habits would be better taught and learned in advance of practice.

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Centre: PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

The Mirage of Merit: Reconstituting the 'Ideal Academic'

Author(s): Margaret Thornton

This paper takes a hard look at merit and the ideal academic, twin concepts that have been accorded short shrift by the scholarly literature. For the most authoritative positions, the ideal displays all the hallmarks of Benchmark Man. Despite the ostensible 'feminisation' of the academy, the liberal myth that merit is stable, objective and calculable lingers on. As a counterpoint to the feminisation thesis, it is argued that a remasculinisation of the academy is occurring as a result of the transformation of higher education wrought by the new knowledge economy. In response, the ideal academic has become a 'technopreneur' – a scientific researcher with business acumen who produces academic capitalism. This new ideal academic evinces a distinctly masculinist hue in contrast to the less-than-ideal academic – the humanities or social science teacher with large classes, who is more likely to be both casualised and feminised.

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Centre: CIPL, CLAH, PEARL

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

Rethinking Treatment for Children with Gender Dysphoria and the Family Court's Welfare Jurisdiction

Author(s): Haydn Marsh

The authorisation of treatment for children with gender dysphoria has been found, inappropriately, to fall within the Family Court of Australia’s welfare jurisdiction. For a particular medical treatment to attract the Court’s supervisory jurisdiction it must be found that the child is not competent to consent to the treatment themself and the treatment must fall within the ambit of what the Court has called a ‘special medical procedure’. The intent behind the exercise of the Court’s welfare jurisdiction is to safeguard the best interests of children.

Contrary to previous decisions of the Court, treatment for gender dysphoria does not fall within the factors identified by the majority of the High Court in Marion’s Case as being indicative of a ‘special medical procedure’. The practical effects of this mistaken characterisation are, paradoxically, detrimental to children with gender dysphoria. In addition, the ability of mature children to authorise partially irreversible treatment for themselves has been unnecessarily complicated, and measures should be taken to clarify and standardise the law in this area.

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Tolley's International Taxation of Corporaet Finance

Tolley's International Taxation of Corporate Finance

Author(s):

This book introduces and discusses international tax issues relating to corporate finance, group treasury, and banking operations. The book is intended to benefit accountants, lawyers, economists, financial managers and government officials by explaining practical corporate finance international tax issues. These issues include: examples of country tax regimes; corporate finance including issuing shares; debt instruments; bank loans; investment banking activities; and alternative finance such as crowdfunding; microfinance and alternative energy funding; and international tax issues relating to interest and dividend flows; capital gains; and foreign tax credits. The book reviews related topics, including: mergers and acquisitions funding; asset and project finance; securitisation; derivatives; hybrid securities and entities; Islamic financing; bank capital structures; group treasury companies; debt restructuring; and transfer pricing issues. The book is based on Corporate Finance and International Taxation courses presented by the author in London, Paris, Zurich, Lugano, Rio de Janeiro, Mexico City, Hong Kong and Singapore.

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Centre: CCL

Research theme: Administrative Law, Regulatory Law and Policy

New Technologies and the Law of Armed Conflich

New technologies and the law of armed conflict

Editor(s):

Modern technological development has been both rapid and fundamentally transformative of the means and methods of warfare, and of the broader environment in which warfare is conducted. In many cases, technological development has been stimulated by, and dedicated to, addressing military requirements. On other occasions, technological developments outside the military sphere affect or inform the conduct of warfare and military expectations. The introduction of new technologies such as information technology, space technologies, nanotechnology and robotic technologies into our civil life, and into warfare, is expected to influence the application and interpretation of the existing rules of the law of armed conflict. In this book, scholars and practitioners working in the fields critically examine the potential legal challenges arising from the use of new technologies and future directions of legal development in light of the specific characteristics and challenges each technology presents with regard to foreseeable humanitarian impacts upon the battlespace.

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Centre: CMSL

Research theme: Military & Security Law

Law and Democracy

Law and Democracy: Contemporary Questions

Editor(s): Kim Rubenstein, Glenn Patmore

Law and Democracy: Contemporary Questions provides a fresh understanding of law’s regulation of Australian democracy. The book enriches public law scholarship, deepening and challenging the current conceptions of law’s regulation of popular participation and legal representation. The book raises and addresses a number of contemporary questions about legal institutions, principles and practices. Examining the regulation of democracy, this book scrutinises the assumptions and scope of constitutional democracy and enhances our understanding of the frontiers of accountability and responsible government. In addition, key issues of law, culture and democracy are revealed in their socio-legal context.The book brings together emerging and established scholars and practitioners with expertise in public law. It will be of interest to those studying law, politics, cultural studies and contemporary history.

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Centre: CIPL

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

Statutory Interpretations in Australia

Statutory Interpretation in Australia

Author(s): Dennis Pearce, Robert Stanley Geddes

Forty years since the first edition was published and eight editions later, Statutory Interpretation in Australia remains the pre-eminent text on the subject. Statutory Interpretation in Australia, 8th Edition concentrates on: statements of the courts and tribunals – describing approaches, assumptions and techniques of interpretation, as well as the application of these in one’s work; and the Interpretation Acts of each of the Australian jurisdictions - understanding the content of which is essential to determining the meaning of legislation. Extensive case references to the relevant principles for each jurisdiction have been included, allowing readers to identify the authorities that best suit their particular purposes.

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Centre:

Research theme: Administrative Law

Tolley's International Taxation of Upstream Oil and Gas

Tolley's International Taxation of Upstream Oil and Gas

Author(s):

The scope of this title is to introduce and review significant international tax issues for upstream oil and gas operations. The book introduces and explains practical upstream tax issues, with an emphasis on tax risk management and related tax planning. Readers will develop skills in identifying tax exposures and opportunities, managing tax negotiations, and applying tax planning solutions and is intended to benefit accountants, lawyers, economists, financial managers and government officials. The book aims to be the first choice for the new starter in upstream oil and gas taxation. It also aims to be the best introduction of international tax issues relating to upstream oil and gas, enabling the reader to analyse and understand new situations and circumstances, rather than an encyclopaedic reference of tax issues.

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Centre:

Research theme: Administrative Law, Environmental Law, International Law

Criminal Fair Trial Rights: Article 6 of the European Convention

Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights

Author(s): Associate Professor Ryan Goss

Article 6 fair trial rights under the European Convention on Human Rights are the most heavily-litigated Convention rights before the Strasbourg Court, generating a large and complex body of case law. This book provides an innovative and critical analysis of Strasbourg's Article 6 case law. The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments. The book takes a complementary (but different) approach. Instead of analyzing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to many of the component rights. It will be useful to all those working in the fields of criminal law and human rights.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

International Law: Cases and Materials with Australian Perspectives

International Law: Cases and Materials with Australian Perspectives - Second Edition

Author(s): Donald Rothwell, Stuart B Kaye, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: Environmental Law, International Law

Rehabilitiation and Compensation Act 1988

Annotated Safety, Rehabilitation and Compensation Act 1988 (10th ed)

Author(s): , John Oman Ballard, Allan Anforth

The 10th edition of this well known reference book provides the full text of the Safety, Rehabilitation and Compensation Act as at 1 April 2014, together with comprehensive annotations, organised on a section-by-section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal on the Act. The book has up-to-date discussion of recent litigation concerning the Safety, Rehabilitation and Compensation Act, including "reasonable administrative action taken in a reasonable manner", liability for injuries in the course of employment, and construction of the approved Guide. It also includes a list of all legislative instruments published in the Gazette or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act where the date of injury was before 1 July 2004. Canberra barrister Allan Anforth has contributed an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

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Centre:

Research theme: Administrative Law, Military & Security Law, Regulatory Law and Policy

Laying Down the Law

Laying Down the Law

Author(s): Robin Creyke, Catriona Cook, Robert Stanley Geddes, David Hamer, Tristan S Taylor

Fully revised and expanded, this ninth edition of Laying Down the Law provides an invaluable introduction to the study of law. It includes clear and engaging explanations of essential foundation topics include Australia’s legal system and sources of law while discussion of current issues assists readers to understand the context in which our legal system operates. The comprehensive coverage of precedent and statutory interpretation provides a solid basis for legal study and practice, and the margin glossary identifies, explains and demystifies legal terms. Practical examples and exercises support learning and the development of key skills. New to this edition is a chapter on the legal profession and professional legal practice and ethics.

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Research theme: Administrative Law, Criminal Law, Private Law, Regulatory Law and Policy

Australian anti-discrimination law 2nd edition

Australian anti-discrimination law 2nd Edition

Author(s): , Neil Rees, Dominique Allen

The second edition of this book, which is the first major text in the field directed to both legal practitioners and law students, contains a detailed analysis of Australian anti-discrimination law as well as extracts from all of the major cases and the writings of leading commentators. It incorporates the many changes to the law since the first edition was published in 2008 and includes new chapters dealing with positive duties, victimisation and protections against discrimination in industrial relations laws. The book includes a comprehensive examination of the difficult concepts of direct and indirect discrimination as well as coverage of the major grounds of unlawful discrimination, such as race, sex and disability. The book records the history of the major pieces of anti-discrimination legislation, examines important international developments and includes numerous suggestions for reform.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice

Criminal Law and Procedure in New South Wales

Hayes & Eburn Criminal Law and Procedure in New South Wales

Author(s): Michael Eburn, Roderick N Howie, Paul Sattler

Hayes & Eburn Criminal Law and Procedure in New South Wales states the basic principles and provides the fundamental source material required for a study of New South Wales criminal law and procedure. It examines the substantive law in a procedural and evidentiary context. Hayes & Eburn Criminal Law and Procedure in New South Wales is specifically designed to meet the needs of students who will be studying criminal law over one semester. The text covers all the learning requirements prescribed in the Legal Profession Admission Rules 2005 (NSW). It gives students the thorough grounding they need in the basic principles of the criminal justice system before moving to the detail of their application in an expanding range of discrete contexts. It also provides practitioners with an introduction to the principal authorities and statutory provisions governing the practice of criminal law in New South Wales. While this book remains unique for its strong focus on the jurisprudence of the New South Wales criminal courts, the principles explored in it will also assist in understanding the criminal law of all Australian jurisdictions.

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Research theme: Criminal Law

Developing Restorative Justice Jurisprudence: Rethinking Reponses to Criminal Wrongdoing

Developing Restorative Justice Jurisprudence Rethinking Responses to Criminal Wrongdoing

Author(s): Tony Foley

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. The work provides a fresh insight into how today’s criminal law might develop in order to bring restoration directly into the mix for tomorrow.

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Centre: PEARL

Research theme: Criminal Law, The Legal Profession

'CLCs Having an Impact on Lives - Strategic Approaches to Problem Solving’ (Presentation Slides)

Author(s): Elizabeth Curran

Theme - Advancing (by discovering and creating, developing innovative ideas and strategies, including and incorporating the learning and perspectives of others):

Strategic thinking can and has enabled the benefits of early intervention and prevention of legal problems and their escalation. This goes beyond one-to-one case work and can address problem at their core. This paper will explore easy, useable, relevant and replicable results of research evaluations undertaken by Curran of what is effective legal service action that has prevented the public from having to go through the same problem and thus enhancing service impact. Reflective practice is a key way to inform strategic action and continuous learning and how this can be done will also be explored.

This paper examines case studies from CLCs, good practice, responsiveness, strategic thinking and processes that foster having significant impact. It will share how to, up to date action research, facilitate sharing of experiences through the session’s interactive approach.

The session will take an adult learning approach to delivery meaning it will involve centres in discussion about their experiences rather than being in a traditional or lecture mode of delivery. People in the room have expertise and skills that can be shared by all in participants in the session.

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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

Building Capacity to Cope with Ethical Dilemmas in Legal Practice Through Teaching ‘Giving Voice to Values’ Techniques (Presentation Slides)

Author(s): Elizabeth Curran

This panel presentation will be a basic introduction for a more detailed session on Saturday with Viv Holmes, Anneka Ferguson (in absencia) which will discuss the theory, practice, research and student responses that informs our courses.

In the context of Recommendations 6 and 7 Critical issues and challenges are presented. How can teachers challenge students to explore ethical dilemmas emerging in all area of practice be they commercial, property, consumer and civil law? How can we as teachers not just teach students to identify ethical issues but also assist them in building the tools necessary to actively and appropriately deal with such dilemmas?

In the ANU Legal Workshop (delivered in a blended mode with face to face and on-line teaching) the professional legal training course for graduates to become admitted to legal practice, we use Mary Gentile’s ‘Giving Voice to Values’ (GVV) approach. This will be briefly explained.

I have taught ethics in an undergraduate context and am now teaching at graduate levels and see more opportunities using the GVV approach. In Legal Workshop’s Ethics subject and in a subject, ‘Professional Development’ (PM) that supports key practice areas, we use GVV to engage students at a deeper level so they learn about themselves and their working environment. The key GVV approach is to equip students with not only the ability to identify an ethical problems but also strategies to enable them to act on their ethical duties.

Our aim is to build the students’ resilience, build their capacity to act ethically and speak up appropriately and wisely.

During my section of the panel presentation, I will ask the audience to participate by doing the first exercise students undertake- a Professional Development Journal Entry. This activity is based on GVV’s ‘Tale of Two Stories’ and requires students to recall and then reflect on a time in their lives when they have, and have not, ‘spoken’ their values. The activity is a useful lead-in to tackling ethical issues in legal workplace scenarios as the course progresses (tomorrow’s session). This activity starts the reflective practice conversation and flags issues that emerging lawyers face in responding ethically. In student debriefs some of our students (many of whom work in legal practice as para-legals, judges associates, waitressing, marketing and fact food outlets etc.) indicate they already often encounter unethical practice and that examining the reasons why they speak or do not speak out is useful for the later exercises. The discussion also has scope for teachers to share their experiences, values and ethical dilemmas and how they did or not deal with them. In the follow-up session on Saturday we will explore how the GVV approach enables students to develop and practise skill for acting ethically. It is suggested a similar activity could be used in undergraduate level to start reflective practice and the values and ethics discussion with students earlier.

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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

‘Working Collaboratively, Holistically and Strategically in and with Community – The Power of Community Development in Legal Education’ (Presentation Slides)

Author(s): Elizabeth Curran

“You never really understand a person until you consider things from his point of view…Until you climb inside of his skin and walk around in it” Atticus Finch, To Kill a Mockingbird, Harper Lee.

I have been asked to answer the following questions today: 1. What is Community Development 2. What it means in terms of approach 3. To provide examples of when I have used it in my work 4. To distill any examples of how it is done 5. To discuss how to evaluate its impact and worth and 6. To examine why it might be a core service of CLCs. 7. Dome key challenges in terms of funding and funders.

Now in Australia we have the empirical data that had been lacking to support anecdotally what had been observed by some service providers over many years. These empirical studies not only demonstrated that similar issues arise in Australia for people who are the recipients of legal assistance services (largely people on social support or with incomes of under $26,000K) but that inroads could be made by joined- up services both legal and non-legal, holistic approaches, community legal education that reaches out and is targeted and responsive to community needs and behaviour. The studies confirmed that the direction of many legal assistance services to work collaboratively, holistically and strategically to assist people, to educate them and to work towards law reform to ensure that recurring problems are all critical if access to the legal system and equality before the law are to be attained.

CLCs have a vital role as community agencies along with others to enable community members to have and find a voice.

“If funders and the community want the legal assistance sector to make a difference in solving people’s problems and advancing and protecting community rights then they must recognize the need to approach problems strategically and use various approaches to obtain results. To achieve this, organizations must be given a level of autonomy that frees them up to use their skills, experience and knowledge of the system as well as the client's actual circumstances to decide the best strategy.”

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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

Environmental Protection and Human Rights

Author(s): Donald Anton

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

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