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 Multilateral Human Rights System: Systemic Challenge or Healthy Contestation?

Author(s): Jolyon Ford

This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer

Author(s): Damian Clifford

This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.

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Centre:

Research theme: Law and Technology

Who Has the Power? A Critical Perspective on Space Governance and New Entrants to the Space Sector

Author(s): Cassandra Steer

Space law and space politics are determined by the same big players as terrestrial geopolitics, and therefore in asking how to govern space, we have to take the current realities of international relations and international law into account. How are new entrants interacting with the international space law regime inherited from the Cold War, and what kinds of new governance structures might we need to deal with the increasing number and kinds of participants emerging in the space sector? I take a critical perspective, drawing on feminist legal theory and Third World Perspectives on International Law (TWAIL) to pose further questions: who is exercising power over the development of new legal and governance norms in space and who is excluded from this? I argue that, because we are all so dependent on space for our contemporary existence, 21st century space governance needs to take into account more than the interests of the biggest players.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Why Outer Space Matters for National and International Security

Author(s): Cassandra Steer

Despite the fact that outer space may only be used for peaceful purposes under the 1967 Outer Space Treaty, most technologically advanced States today have a high military dependence on space. In other words, space is “militarized,” but not yet “weaponized.” At the same time, a space arms race has been underway for some time, and appears to be accelerating in recent years. In 2019, India joined what it proudly dubbed the “elite club” of States with the capability to launch direct ascent anti-satellite weapons, replicating earlier tests by China, Russia and the U.S., all of whom have also demonstrated more covert forms of anti-satellite or “counterspace” technologies. The establishment of the U.S. Space Force at the end of 2019 and the response of allies and adversaries alike is emblematic of the escalatory cycle that appears to be in place. Today nearly every country is dependent in some way on space-enabled capabilities, many of which are supplied not by States but by commercial entities. This report outlines the historical and legal context, and argues for increased cooperation and transparency to improve the stability and security of outer space for national and international security.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Algorithmic Decision-Making and Legality: Public Law Dimensions

Author(s): Will Bateman

Automating the exercise of statutory powers through algorithmic decision-making carries high levels of legal risk. Fundamental public law doctrines assume that legal powers will be exercised by a particular kind of decision-making agent: one with sufficient cognitive capacities to understand the interpretative complexity of legal instruments and respond to highly dynamic environments. Public law doctrines also assume that clear reasons can be given for the exercise of public power and, by default, attribute legal responsibility for the exercise of statutory powers to a human being bearing political and social responsibility. Those doctrines provide the standards against which the legality of algorithmic decision-making in the public sector must be tested and, until they are met, lawyers should be sceptical of suggestions that statutory powers can be automated.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Committing to Human Rights in Australia's Corporate Sector

Author(s): Sally Wheeler

This paper draws on data collected from the ASX 50 with a focus on policy commitment to human rights. As the UNGP makes clear a visible and accessible policy commitment is the most basic form of recognition that corporations should afford to human rights. The paper takes the position that this policy commitment offers corporations a chance to declare a positive relationship with human rights. Therefore the presence or not of a policy statement, and the form that the statement takes, tells us much about the relationship between the corporate sector and human rights. The data reveals that there is generally a low compliance with the policy commitment requirement. The most significant factor amongst a range of variables examined for predicting whether compliance will occur or not is membership of human rights engaged Business and Industry Non-Governmental Organisations (BINGOs). We might expect a rather stronger public commitment to human rights reflecting the position taken by Australian corporations on other ESG standards. The paper suggests that the absence of human rights discourse as a political and cultural artifact at the domestic nation state level is a possible explanation for this.

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Centre:

Research theme: Law and Technology

Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty

Author(s): Jolyon Ford

In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

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.

Read on SSRN

Centre: CCL

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

Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights

Author(s): Will Bateman, James Stellios

The High Court’s decision in Momcilovic v The Queen is the first to consider the compatibility of the Charter of Human Rights and Responsibilities 2006 (Vic) with ch III of the Constitution. The decision will have significant implications for the continuing effectiveness of key provisions of the Charter, the Human Rights Act 2004 (ACT) and any future federal charter of human rights. This article analyses the decision and evaluates its implications for the dialogue model of statutory human rights protection in Australia. It also considers several controversial statements concerning the principles of federal jurisdiction that arise from the decision.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law, Law and Technology, Regulatory Law and Policy

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s): Dilan Thampapillai

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material. The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

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

Low Level Racist Speech: Beyond Law's Reach?

Author(s): Dilan Thampapillai

The nature of racist speech is changing as social mores on matters of race and multiculturalism evolve. However, the underlying intent of the disseminators of racist speech – to divide and subjugate – remains much the same. Part IIA of the Racial Discrimination Act appears to lack the capacity to deal with racist speech that is sophisticated and not profane. This presents a problem, particularly when a racist message can effectively be conveyed with subtlety and without crudity. The effect of this failure on the part of Australia’s racial vilification laws is to effectively privilege the speech of mainstream commentators. Part IIA of the RDA appears to have been drafted with a view to preventing the harms that arise from extreme racist speech and speech encouraging violence. But such speech is rare or is quarantined to the margin of Australian life. The type of racism that is problematic is that which is more insidious, sophisticated, yet visible and divisive and exclusionary in its operation. This is the type of speech that Part IIA needs to engage with if it is to have any meaning in broader Australian life. Further, it is possible for Part IIA to play a role in educating and challenging racist speech without undermining Australian democracy and the general freedom of speech.

Read on SSRN

Centre:

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

Cronullified: Can the Commonwealth Regulate Low Level Racist Speech?

Author(s): Dilan Thampapillai

Political commentary on race, multiculturalism and national identity can be very controversial because it often appears to demarcate a line between those Australians who are ethnic and cultural insiders and those who are outsiders. This type of speech can venture into the territory of being low level racial vilification speech. That is, speech that contains overtones that are hostile or contemptuous towards a particular racial group but which does not overtly espouse hatred. Low level racial vilification speech serves to exclude others from being truly equal within the community. Yet it does not appear to be effectively regulated under the Racial Discrimination Act. However, this type of speech deserves some form of public censure. In this article I analyse low level racial vilification speech in the context of political speech. I consider whether it is possible to implement a policy scheme where speech with racist overtones, as opposed to hate speech, can be subjected to some form of official censure whilst, in the interests of not unduly restraining political speech, not being prevented from being published or disseminated.

Read on SSRN

Centre: CCL

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

Who’s Responsible? Justiciability of Private and Political Decisions

Author(s): Daniel Stewart

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (‘AWB’) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government’s responsibility for the circumstances leading to that inquiry. The Australian government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action, and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Read on SSRN

Centre: CCL, CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s): Dilan Thampapillai

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

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

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s): Dilan Thampapillai

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

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

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s): Dilan Thampapillai

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

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

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