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.

Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill

Author(s): Anthony Hopkins

Equality is a fundamental concern of human existence. Expressed in the principle of equality before the law it requires that those who come before the law are entitled to be treated as being of equal value and to be given ‘equal consideration’. In circumstances where those who come before the law are marked by their differences, giving of equal consideration requires that difference be understood and taken into account. The identification of difference does not of itself determine the question of whether different treatment is warranted in the interests of equality. However, this article argues that understanding difference is a precondition for the promotion of true equality and that, in pursuit of understanding difference, it is necessary for us to acknowledge the limitations of our capacity to understand the lived experience of ‘others’ and to actively work to engage with these experiences. In the context of the criminal justice system, we over abused women who kill as illustrative of this need, focusing upon the availability and operation of self-defence in England/Wales, Queensland and Victoria. In doing so, we consider the capacity of the law, legal process and legal actors to engage with the lived experiences of these women, highlighting the im portance of ‘informed imagining’.

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Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Achieving the Sustainable Development Goals: Promoting Cooperation and Sustainability

Author(s): Molly Townes O'Brien

To combat the complex problem of world poverty, the United Nations General Assembly set out eight Millennium Development Goals (MDGs), but as poverty decreases, energy consumption and pollution increase. Largely due to this complication, the MDGs were replaced in September 2015 with the Sustainable Development Goals (SDGs). The SDGs include new priorities such as climate change, economic inequality, innovation, sustainable consumption, and peace and justice. Successful development involves more than avoiding poverty. To achieve the sustainable development goals, we have to know what they are and why they were introduced. We need to teach them to our students, who will carry the goals into their future work places.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice

Author(s): Anthony Hopkins

Indigenous offenders are heavily over-represented in the Australian and Canadian criminal justice systems. In the case of R v Gladue, the Supreme Court of Canada held that sentencing judges are to recognise the adverse systemic and background factors that many Aboriginal Canadians face and consider all reasonable alternatives to imprisonment in light of this. In R v Ipeelee, the Court reiterated the need to fully acknowledge the oppressive environment faced by Aboriginal Canadians throughout their lives and the importance of sentencing courts applying appropriate sentencing options. In 2013, the High Court of Australia handed down its decision in Bugmy v The Queen. The Court affirmed that deprivation is a relevant consideration and worthy of mitigation in sentencing. However, the Court refused to accept that judicial notice should be taken of the systemic background of deprivation of many Indigenous offenders. The High Court also fell short of applying the Canadian principle that sentencing should promote restorative sentences for Indigenous offenders, given this oft-present deprivation and their over-representation in prison. In this article, we argue that Bugmy v The Queen represents a missed opportunity by the High Court to grapple with the complex interrelationship between individualised justice and Indigenous circumstances in the sentencing of Indigenous offenders.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Did Defensive Homicide in Victoria Provide a Safety Net for Battered Women Who Kill? A Case Study Analysis

Author(s): Anthony Hopkins

This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We suggest that, in the absence of the offence of defensive homicide, women like Williams may in the future be convicted of murder, even when they kill in response to family violence and with a genuine belief that their actions are necessary in self-defence.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Being Well in the Law: A Guide for Lawyers

Author(s): Stephen Tang, Tony Foley, Vivien Holmes, Colin James

Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.

Read on SSRN

Centre: CIPL, 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

Accessories in Private Law

Accessories in private law

Author(s): Pauline Ridge, Joachim Dietrich

Accessory liability is an often neglected but very important topic across all areas of private law. By providing a principled analytical framework for the law of accessories and identifying common themes and problems that arise in the law, this book provides much-needed clarity. It explains the fundamental concepts that are used to impose liability on accessories, particularly the conduct and mental elements of liability: 'involvement' in the primary wrong and (generally) knowledge. It also sets out in detail the specific rules and principles of liability as these operate in different areas of common law, equity and statute. A comparative study across common law and criminal law jurisdictions, including the United States, also sheds new light on what is and what is not accessory liability.

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Centre: CCL

Research theme: Criminal Law, International Law, Private Law

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.

Read on SSRN

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

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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Centre:

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

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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Centre:

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

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL, 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

Mitigating Wildfire Devastation in Policy and in Practice: Lessons from the Australian Experience

Author(s): Michael Eburn

Disaster law is a nascent field of study in Australia. Research on legal issues that impact upon hazard resilience has been pursued by scholars in individual areas of study; planning law, environmental law, tort law, constitutional law etc. The risk of climate change and developing scholarship in the area of climate change adaptation has seen an increasing realisation that if we are to build resilient communities these areas of law must be considered as a whole.

In Australia, the Bushfire Cooperative Research Centre (CRC) has taken the initiative in this regard. The CRC is funding a joint research project on Mainstreaming Fire and Emergency Management across Legal and Policy Sectors: Joint Research and Policy Learning. This research is a collaborative project between the Australian National University (law and policy); the University of Canberra (urban and regional planning) and the RMIT (Royal Melbourne Institute of Technology) University (sharing responsibility).

Read on SSRN

Centre: CMSL

Research theme: Criminal Law, Environmental Law, Health, Law and Bioethics, Law, Governance and Development, Military & Security Law

Review Essay: The Constitutional System of Thailand: A Contextual Analysis

Author(s): Mark Nolan

Review of: Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Series: Constitutional Systems of the World). Oxford and Portland, Oregon: Hart Publishing, 2011. Pages: i-xxxv, 1-273; ISBN-10: 1841139726: ISBN-13: 978-1841139722.

Read on SSRN

Centre: CIPL, CMSL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples, Military & Security Law

Did She Consent? Law and the Media in New South Wales

Author(s): Anthony Hopkins

Legislative reform to the law of sexual assault in New South Wales in 2007 emphasises that those who wish to engage in sexual intercourse must take steps to ensure that they do so with consent. The new laws’ intent was to ensure free, voluntary and communicated consent, and to punish those who take advantage of the intoxication of their victim, or seek to hide behind their own intoxication. Further, the intent was to promote awareness and expectation with respect to acceptable consensual sexual activity. This article identifies a discord between this legislative intent and the reporting and commentary in the newsprint media which continues to focus on victim intoxication and behaviour as a matter of ‘risk’. The contention here is that until the legislative intent is reflected in the newsprint media the national conversation on sexual assault will remain impoverished, limiting the potential to focus the spotlight on perpetrators.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL, 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

Bottomley, Law in Context

Law in Context (4th ed)

Author(s): Stephen Bottomley, Simon Bronitt

This fourth edition of Law in Context not only updates the text by reference to the latest thinking and developments in the broad area of ‘law in context’, but also introduces readers to the wider social, political and regulatory contexts of law. Bottomley and Bronitt, as in previous editions, expose readers to the multitude of contexts (some explicit, others implicit) that affect how law is made, broken and enforced by the state or individual citizens. The fundamental ideals of law – such as the Rule of Law – rest on cherished liberal values, though the authors constantly encourage readers not to accept uncritically the rhetoric of law, but to test these assumptions through empirical eyes. 

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Centre: CCL

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, International Law, Private Law, Regulatory Law and Policy

Chisholm, Understanding Law

Understanding law: an introduction to Australia's legal system (8th ed)

Author(s): Richard Chisholm, Garth Nettheim

Written by highly qualified authors, the direct, clear and often humorous style of this book will help readers understand how the law relates to real issues and controversies. The institutions and sources of law in our legal system are clearly explained, including the roles of lawyers, the courts and the legislature. Illustrative examples and a discussion of actual cases enable students and other citizens to engage with topics such as historical basis of Australian law, Australian law and international law, human rights, procedural fairness and the notions of law and morality. New stimulus questions and activities included in this 8th edition invite the reader to consider the interrelationship of law, tradition and social values. Understanding Law is a perfect introduction to the law for students engaging with legal studies and for other academic disciplines at tertiary and senior secondary levels. It is an ideal starting point for any Australian interested in learning more about their legal system.

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Centre:

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Environmental Law, Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice

A Puppy Lawyer is Not Just for Christmas: Helping New Lawyers Successfully Make the Transition to Professional Practice

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

The research reported here is a pilot project which investigated the transitionary period from study to work for entry-level lawyers. The research was designed to identify factors which may assist new lawyers in making this a successful transition.

This is crucial research. There is no similar empirical work in Australia focusing on the transition towards a legal professional. The support and endorsement of the Law Society of the Australian Capital Territory ensured that the pilot could provide some valuable preliminary data.

The design of the study consisted in tracking a small sample of newly admitted lawyers who volunteered to be followed through their first year. The sample consisted of eleven participants (4 male and 7 female) employed variously in private and public practice in the territory. Their median age was 25 years. They worked in a range of different practices – small, medium and large private firms, and government legal practices, legal aid and community legal centres.

Data was collected between 2009 and early 2011. The study used a multi-method qualitative research approach to gather information through interviews, participant observation and self-recording of daily work activity.

Data analysis showed the crucial importance of appropriate supervision and mentoring to new lawyers’ capacity to gain autonomy and competence. Also notable was new lawyers’ need to see their work as intrinsically worthwhile, either when it provided a direct public service or more indirectly. Pro bono work was important to them. New lawyers were also keenly alert to the real ethical climate of the practice in which they worked. The way a practice treated its staff (both professional and support) was seen as a reliable indicator of its ethical culture.

Read on SSRN

Centre: CIPL, 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

No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One

Author(s): Molly Townes O'Brien, Stephen Tang

Preliminary results of a pilot study of law students suggest that, during the first year of law study, students may experience changes in thinking styles, stress levels, and satisfaction with life. Although further inquiry into the cause of law student distress is necessary, the authors consider certain assumptions underlying the legal curriculum - particularly the conception of a lawyer as adversarial, emotionally detached, and competitive - to be possible sources of the negative impact on student wellbeing. It is suggested that legal educators should reexamine their curricula, particularly their conception of what it means to be a lawyer, and think creatively about ways that law schools may encourage healthier approaches to the study of law.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

An Active Learning Smorgasbord for Teaching Evidence

Author(s): Molly Townes O'Brien

The challenge of teaching evidence or civil procedure is to devise a classroom experience that provides students with the contextual background of courtroom dynamics and opportunities for active engagement. This paper describes a variety of techniques that are effective for transforming the traditional law lecture into an interactive experience. Theme songs animate the classroom; high-impact images improve students’ ability to recall and relate doctrinal information to their experience; and quiz games and question slides and video give students to opportunity to actively engage in in-class legal decision-making. The techniques described here can be used together or separately to create an active learning experience that provides context for understanding and motivation for advanced study.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

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