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.

Tasmanian Dam Case

The Tasmanian Dam Case 30 Years On: An enduring legacy

Author(s): Heather Roberts, James Stellios

In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.

Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?

By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.

Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?

Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.

This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Crown and Sword

Crown and Sword: Executive power and the use of force by the Australian Defence Force

Author(s):

The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.

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Centre: CIPL

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

The Deliberative Case for Constitutional Referenda

Author(s): Ron Levy

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Australian Citizenship Law

Australian Citizenship Law 2e

Author(s): Kim Rubenstein

Citizenship is the pivotal legal status in any nation-state. In Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law sheds light on citizenship law and practice and provides the most up-to-date analysis available of the Australian Citizenship Act 2007 (Cth).

Rubenstein’s Australian Citizenship Law is the much-awaited second edition to her highly acclaimed text. It has been cited in High Court decisions, referred to in national and international academic work and used extensively by practitioners working in citizenship law, migration law, constitutional and administrative law and is an essential resource for migration agents.

Moreover, because of its broader analysis, it is crucially relevant to any discipline associated with citizenship, including, history, politics, education or sociology, and to government officials working in the area of citizenship, especially those working in our embassies and consulates.

Purchase your copy here

Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law

Australia's Constitutional Government

Australia’s Constitutional Government

Author(s): , Jack Richardson

This book comprehensively describes Australia’s unique pattern of constitutional government. Jack Richardson was always convinced that the legal basis of federal government and the evolving patterns of power should be understandable — not just to experts in constitutional law, but to people in all walks of life. He believed that knowledge of the principles by which we are governed must be available to the general public, and to participants in the federal system. The author advances expert knowledge by divining those principles. By describing their operation in words intelligible to readers who are not legally qualified, he achieves his aim of acquainting a much wider range of people with the powers that rule them.

The result is a book that will be a great help to students and scholars of law, government, politics and history, as well as a useful guide for administrators, journalists, politicians and legal practitioners. Anyone who needs a straightforward explanation of an element of constitutional government will value the understanding they can easily get from the book.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary, 10th Edition

Author(s): James Stellios, D Meagher

This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. It reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis. The book covers all major areas of study in both constitutional law and public law.

Updates for this edition include the two Williams cases in which the High Court reworked the executive power of the Commonwealth to contract and spend; recent cases developing the Kable principles and considering the validity of State laws against Chapter III implications; important recent cases on the implied freedom of political communication; recent cases on s 92 of the Constitution dealing with internet trade and commerce.

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Centre: CIPL

Research theme: Constitutional Law and Theory

The Politics of the Rule of Law

Author(s): Moeen Cheema

In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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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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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.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International 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.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

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

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

Adventures in the Grey Zone

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.

Read on SSRN

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

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

The Law of Deliberative Democracy

The Law of Deliberative Democracy: Seeding the Field

Author(s): Ron Levy

Election law scholarship has been slow to take note of the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013.

In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning.

Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Stellios, Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary

Author(s): James Stellios, Jennifer Clarke, Patrick Keyzer

Hanks Australian Constitutional Law - Materials & Commentary is the authoritative casebook for the study of constitutional law. This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. The title reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis.  Improvements for this edition include an integrated chapter on judicial power (Ch 9), separate consideration of s 92 (Ch 11), strengthening the public law focus of chapter 1, and reintroducing a detailed table of contents. New to this edition are reference of state powers to the Commonwealth and intergovernmental co-operation (Ch 1 and 5), national security and defence (Ch 3), and a complete re-write of chapter 8, 'The Executive'.

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Centre:

Research theme: Constitutional Law and Theory

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Women Judges, 'Maiden Speeches,' and the High Court of Australia

Author(s): Heather Roberts

Since the Australian High Court was established in 1903, ceremonies have been held to mark the swearing-in of a new Justice. This chapter utilizes the speeches made at the swearing-in ceremonies of Gaudron, Crennan, Kiefel, and Bell as a prism to explore the representation of women judges in the Australian legal community, and in particular, the Australian High Court.

These ceremonies are a rich resource by virtue of the two kinds of speeches made on these occasions. First, leaders of the Australian legal community make speeches welcoming the new High Court judge to the bench. In a legal system where federal judges are chosen behind closed doors, the welcome speeches have performed a key role in introducing the new judges to the public, and attesting to their skills as lawyer and judge. Importantly, the litany of a new judge’s accomplishments on these occasions contextualizes the concept of “merit” in a High Court appointment. Furthermore, the speech by the Commonwealth Attorney-General has provided a measure of public justification of his decision to appoint a particular judge. This chapter explores how the welcome speakers have grappled with the novelty of the feminine in the stories about the four female High Court judges. I argue that gender too often dominated this narrative, to a discriminatory and feminizing effect. In this regard, however, Bell’s ceremony may signal a new direction in the Australian legal community’s attitude toward female judges.

The second element of the swearing-in ceremony is the judge’s response to the welcome speeches. As his or her inaugural speech as a member of the High Court, this speech is the judicial equivalent of the “maiden speech” by members of parliament. The judge’s speech is delivered in a setting rich with contradiction: a statement from the bench, yet of no judicial force; liberated in content and style from the boundaries of a legal dispute and yet constrained by the weight of convention regarding the “appropriate” remarks for an incoming judge; and, a statement of individual identity, values, and principles made from the “identity-less” judge of the common law tradition. For present purposes, the critical feature of the inaugural speeches of Australia’s four female High Court judges is how they tell their stories and the place of gender in that narrative. I argue that these speeches reflect a continuing pressure faced by women judges to distance themselves from the perception of their “otherness” on the bench. This pressure manifested first in Gaudron’s speech, Women Judges, “Maiden Speeches,” and the High Court of Australia when she tempered her bold acknowledgment of her identity as the first woman to join the High Court with affirmations of her sameness with her brother judges. Significantly, twenty years later, Bell’s swearing-in speech continued to display both a self-conscious silencing of her feminine voice and statements affirming her distance from outsiders on the bench.

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

Beyond Beliefs

Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law

Author(s): Moeen Cheema

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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