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.

Commonwealth Power Over Infrastructure: Constitutional Tools for National Economic Regulation

Author(s): Fiona Wheeler

This paper considers the extent of the Commonwealth’s power under the Australian Constitution to make laws regulating economic infrastructure such as transport, communications and energy. In this context, the external affairs power in s 51(xxix) of the Constitution, the communications power in s 51(v), the corporations power in s 51(xx) and the interstate and overseas trade and commerce power in s 51(i) are all addressed. The High Court’s strongly nationalist approach to constitutional construction, most recently affirmed in 2006 in its expansive reading of the corporations power in the Work Choices Case, means that the Commonwealth has very substantial, though not unlimited, authority to deal with infrastructure regulation. While the prospect of a wider reading of the interstate and overseas trade and commerce power may further augment Commonwealth authority in this area, gaps in Commonwealth regulatory power are still likely to remain.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Judicial Selection: Trust and Reform

Author(s): Ron Levy

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Read on SSRN

Centre: CIPL, DGAL

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

Uncertainty and Exclusion: Detention of Aliens and the High Court

Author(s): Matthew Zagor

In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.

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Centre: CIPL, CLAH, LRSJ

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

Rethinking Nationality in International Humanitarian Law

Author(s): Kim Rubenstein

Nationality has been central to law's understanding of membership. Moreover, the formal legal relationship between the individual and the state is that of citizenship - or nationality. However, as this chapter argues, various forces in the international context, including globalisation and the contrasting phenomena of fragmentation, express tensions besetting traditional notions of state membership in an international framework.

This chapter begins by looking at some of the issues underpinning the larger question of the role of nationality in humanitarian law. It then explores those questions in the context of the former Yugoslavia and in particular through the judgment of the War Crimes Tribunal for the Former Yugoslavia in the case of Tadic. It argues that nationality should not necessarily be a determinative factor when applying humanitarian law.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws

Author(s): Moeen Cheema

Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender.

This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an “Islamic critique” of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.

Read on SSRN

Centre: CIPL, LGDI

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

The Influence of Chinese Immigration on Citizenship

Author(s): Kim Rubenstein

This article is from a paper given at a conference in 2000 which sought to do two things. First it draws out some of the legal issues central to citizenship and displays how they relate to the other disciplines in the development of citizenship in Australia. It argues there has not been a clear legal framework within which to develop an understanding of citizenship in Australia. Secondly, it argues that Chinese immigration to Australia in the second half of the 19th century was central to the evolution of citizenship in this country. Moreover, this factor has influenced the development of a legal framework that is confused, ambiguous, and contradictory about citizenship.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Unequal Membership: The Constitution's Score on Citizenship

Author(s): Kim Rubenstein

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Globalisation and Citizenship and Nationality

Author(s): Kim Rubenstein

How well are the legal concepts of citizenship and nationality travelling in a globalised world? This chapter addresses the effects of globalization on people's status and membership within their own territory, and beyond it. Citizenship is a legal, political, and social construct that has domestic and international consequences. I argue that citizenship, in its traditional meaning of participation in and membership of the nation-state, will be fundamentally altered by globalisation and will not continue to travel in the same manner that it has been. The familiar domestic and international consequences of citizenship, such as political voting rights, legal rights, including the right to leave and enter a country, and social welfare rights, will be fundamentally affected by the changes in people's connection to the nation-state. This means that it can't be recognised as a generalisable legal notion, to the extent that it may have been in the past. Moreover, as people identify and become members of more than one community, we will witness an acceptance of multi-citizenship/membership within the nation-state and within the international order. The rise of the world citizen and the changes that have occurred in the nation-state mean that citizenship and nationality will be revised concepts in the 21st century. If they are able to adapt to these changed frameworks, then citizenship and nationally may continue to travel well. This chapter is a combination of two earlier works of the author reproduced in this important book edited by Catherine Dauvergne.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

State Immunity from Commonwealth Laws: Austin v. Commonwealth

Author(s): Amelia Simpson

The constitutional principle immunising the States from certain kinds of Commonwealth laws traces back, in its current form, to the High Court’s 1947 decision in Melbourne Corporation v. Commonwealth. The contours of that principle – known as the State immunity principle or the Melbourne Corporation principle – have never been entirely clear.

However, a measure of certainty followed the Court’s endorsement, through the 1990s, of the formulation contained in the judgment of Mason J in Queensland Electricity Commission v. Commonwealth (“QEC”). He framed the principle as comprising 2 elements, or limbs. The first limb, described in terms of discrimination, dealt with Commonwealth laws that singled out States for special burdens or disabilities; the second limb dealt with Commonwealth laws which, while not singling States out, operated so as to destroy or curtail their continued existence or capacity to function.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Can the Right to Vote Be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002

Author(s): Kim Rubenstein

This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

Australian Citizenship Law in Context by Kim Rubenstein is a new book published in May 2002 by Lawbook Company. Citizenship is the pivotal legal status in any nation-state. For Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law in Context sheds light on citizenship law and practice in the broader context. It also provides the most up-to-date analysis available of the Australian Citizenship Act 1948 and its future direction, plus the first comprehensive listing and analysis of legislation that discriminates upon the basis of citizenship and residence.

The book covers issues of citizenship law, migration law and constitutional and administrative law, and is also a valuable resource for any discipline interested in citizenship. Contents. Preface. Table of Contents. Table of Cases. Table of Statutes. Chapter 1: Citizenship in Australia: An overview. Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates. Chapter 3: Australian "Subjecthood" before Australian Citizenship 1901-1949. Chapter 4: The Australian Citizenship Act 1948. Chapter 5: The Legislative Consequences of Citizenship. Chapter 6: The High Court and Citizenship and Membership. Chapter 7: The Future of Australian Citizenship Law. Index

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Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia

Author(s): Kim Rubenstein

This article looks at citizenship as both a legal formal notion, and as a normative notion. While the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), the normative citizen looks to broader concepts, speaking of membership regardless of a person's formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the 20th century. The article displays this by looking at the beginnings of citizenship in Australia before the legal status was formalised, then the first fifty years of the formal status, and finally at the legislative and common law expressions of citizenship. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century about the relationship between the formal and normative meanings of the term.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

International Citizenship: The Future of Nationality in a Globalised World

Author(s): Kim Rubenstein

This article attempts to identify the consequences for "nationality" in a world where "sovereignty" is challenged by the process of globalization. It builds upon Kim Rubenstein's chapter Citizenship in a Borderless World in A Anghie and G Sturgess (eds) LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY (Kluwer Law, 1998) and responds to the feature article Citizenship Denationalized by Linda Bosniak in the same Spring 2000 edition of the Indiana Journal of Global Legal Studies.

The piece begins by defining "nationality" and "globalization". It distinguishes "citizenship" and "nationality" in a technical legal sense and considers citizenship and globalization as multifaceted concepts. It also highlights that there is an inherent tension in the development of citizenship for the citizenship project is about the expansion of equality among citizens, however, as equality is based upon membership, citizenship status forms the basis of an exclusive politics and identity. The article then concentrates on some tensions endemic to nationality, particularly in a globalized world. It does so by looking at nationality's functionality as a legal and social tool, concentrating upon various treaties and agreements and the international case law dealing with nationality. The case law analysis is divided into the "Standing Cases" and the "Human Rights Cases". Finally, the article concludes by arguing that the concept of effective nationality facilitates a theoretical (if not yet a practical) entry point for the acknowledgment of layered and/or fragmented nationality appropriate to the circumstances of our participation in a given national, supranational, regional or even non-territorial community.This puts nationality more in line with a "rights" -based individualized focus for international law rather than a sovereignty-based one. It is where the progressive project of citizenship meets nationality, melding, strengthening and integrating them as one and the same tool for building justice in a new era.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

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