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.

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Destination Australia: Journeys of the Moribund

Author(s): Kate Ogg

Australia sends many of those who come in search of refuge to regional processing centers in Nauru and Manus Island, Papua New Guinea. Most of these asylum seekers and refugees want to continue their journey to Australia but the Australian Government has vowed that none will be given protection in Australian territory. However, there have been recent developments in the Federal Parliament and Federal Court that have paved the way for certain asylum seekers and refugees in Nauru and Manus Island to come to Australia. In this chapter, I investigate these legislative and judicial developments and argue that they indicate that the place of human rights and international law is becoming increasingly peripheral in Australia’s refugee law and policy and instead transfers to Australia have become medicalized. Australia’s parliamentarians and courts have moved to protect asylum seekers’ physical and mental health but not the rights flowing to them as people, children, and refugees. Asylum seekers and refugees must be moribund before they can use legal processes to transfer to Australia and they come as sick people in need of medical care—not as bearers of legal rights. These developments hamper larger efforts to end or fundamentally reform Australia’s offshore processing regime.

Read on SSRN

Centre: CIPL

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

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New Directions in Article 1D Jurisprudence: Greater Barriers for Palestinian Refugees Seeking the Benefits of the Refugee Convention

Author(s): Kate Ogg

This chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. In theory, these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary. Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this can serve to disadvantage Palestinian women and girls. Consequently, these decisions create additional and often-insurmountable barriers to Palestinian refugees seeking the benefits of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.

Read on SSRN

Centre: CIPL

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

Martyrdom, Antinomianism, and the Prioritising of Christians - Towards a Political Theology of Refugee Resettlement

Author(s): Matthew Zagor

This article considers the approaches taken in the United States (US) and Australia to prioritising the resettlement of Christians from Syria and Iraq. Focusing first upon respective models and the immediate political factors that lead to their adoption, it analyses in depth the specific role played by the evangelical constituency in the US, and their theologically-infused concern for the “persecuted church” in “enslaved” lands. Recognising this movement enjoys less influence in Australia, the article considers the ways in which Australia’s resettlement policies and political narratives have nonetheless increasingly participated in tropes familiar to classical antinomian political theology, not least that resettlement is tied to a redemptive generosity of the State that works to denigrate and undermine the legal obligations demanded by those who arrive irregularly by boat. The article also critiques the use of “vulnerability” as a touchstone principle for the fair allocation of scarce resettlement places, and its propensity to be used for cherry-picking purposes. Finally, as part of the argument that resettlement is susceptible to being used as a vehicle for those motivated by more explicit theological concerns, the article explores the leveraging for political, redemptive, and eschatological purposes of images and narratives of the “martyred” middle-eastern Christian.

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

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Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

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

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

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

Court Records As Archives: The Need for Law Reform to Ensure Access

Author(s): Andrew Henderson, Kim Rubenstein

The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.

Read on SSRN

Centre: CIPL, CLAH

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

Unintended consequences

Unintended consequences: the impact of migration law and policy

Editor(s):

This book arose from an inaugural conference on Migration Law and Policy at the ANU College of Law. The conference brought together academics and practitioners from a diverse range of disciplines and practice. The book is based on a selection of the papers and presentations given during that conference. Each explores the unexpected, unwanted and sometimes tragic outcomes of migration law and policy, identifying ambiguities, uncertainties, and omissions affecting both temporary and permanent migrants. Together, the papers present a myriad of perspectives, providing a sense of urgency that focuses on the immediate and political consequences of an Australian migration milieu created without due consideration and exposing the daily reality under the migration program for individuals and for society as a whole.

Download for free or buy a printed copy here

Centre:

Research theme: Migration and Movement of Peoples

Administrative decision making

Administrative Decision-Making in Australian Migration Law

Author(s):

The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia’s most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law. Through personal recollections and a comprehensive analysis of administrative decision-making, Alan Freckelton brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

Find online at ANU Press

Centre: CIPL

Research theme: Administrative Law, Migration and Movement of Peoples

Europe at the Edge of Pluralism

Europe at the Edge of Pluralism

Editor(s): , Magdalena Kmak

This volume tackles contemporary problems of legal accommodation of diversity in Europe and recent developments in the area in diverse European legal regimes. Despite professing the motto 'Unity in Diversity,' Europe appears to be struggling with discord rather than unity. Legal discussions reflect a crisis when it comes to matters of migration, accommodation of minorities, and dealing with the growing heterogeneity of European societies. The book illustrates that the current legal conundrums stem from European oscillation between, on the one hand, acknowledging the need of accommodation, and, on the other, the tendencies to preserve existing legal traditions. It claims that these opposite tendencies have led Europe to the edge of pluralism. This 'edge' - just as with the linguistic interpretation of the word 'edge' - carries multiple meanings, conveying a plethora of problems encountered by law when dealing with diversity. The book explores and illustrates these multiple 'edges of pluralism,' tracing back their origins and examining the contemporary legal conundrums they have led to.

Order your copy online

Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Gender, Law and Religion, Migration and Movement of Peoples

Administrative Decision-Making in Australian Migration Law

Administrative Decision-Making in Australian Migration Law

Editor(s):

The ANU College of Law, Migration Law Program is pleased to introduce a text in administrative decision-making in Australian migration law. Over the past eight years we have assembled a team of some of Australia’s most highly qualified migration agents and migration law specialists to deliver the Graduate Certificate in Australian Migration Law & Practice, and the Master of Laws in Migration Law.

Alan Freckelton has worked with the Migration Law Program since 2008. Through personal recollections and a comprehensive analysis of administrative decision-making, he brings his professional expertise and experience in this complex field of law to the fore. The examination of High Court decisions, parliamentary speeches and public opinion bring a contentious area of law and policy to life, enabling the reader to consider the impact that legislation and decision-making has upon the individual and society as a whole.

Free download or order a printed copy

Centre: CIPL, CMSL, LRSJ, PEARL

Research theme: Migration and Movement of Peoples

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

Introduction: Using Discourse Theory to Untangle Public and International Environmental Law

Author(s): Kim Rubenstein

The world is talking, pondering, and strategising about the environment. Ever more of the environment has been identified, publicly contemplated, or designated for despoliation and resource extraction. Remote and ‘wild’ places like the rugged Australian Kimberley and the far reaches of North America are now subject to advanced plans for fossil fuel extraction. Environmental disasters, including fires, floods, cyclones, earthquakes and tsunami, and schemes to alleviate or prevent future human suffering from catastrophe, have occupied governmental and organisational attention. Meanwhile, concerns about environmental degradation, and in particular human-induced climate change, dominate Western media and national and international politics, and are connecting communities through conversation and localised action. The nature, breadth and extent of global responses to climate change are also points of contention between the developing and developed worlds.

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

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

Fitzpatrick, Property and Social Resilience

Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor

Author(s): , Andrew McWilliam, Susana Barnes

Peace-building in a number of contemporary contexts involves fragile states, influential customary systems and histories of land conflict arising from mass population displacement. This book is a timely response to the increased international focus on peace-building problems arising from population displacement and post-conflict state fragility. It considers the relationship between property and resilient customary systems in conflict-affected East Timor. The chapters include micro-studies of customary land and population displacement during the periods of Portuguese colonization and Indonesian military occupation. There is also analysis of the development of laws relating to customary land in independent East Timor (Timor Leste). The book fills a gap in socio-legal literature on property, custom and peace-building and is of interest to property scholars, anthropologists, and academics and practitioners in the emerging field of peace and conflict studies.

Order your copy online

Centre: LGDI

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development, Migration and Movement of Peoples

Citizenship and the Boundaries of the Constitution

Author(s): Kim Rubenstein

Citizenship is a prime site for comparison between different constitutional systems, for the idea of citizenship, and the ideals it is taken to represent, go to the heart of how states are constituted and defined. Who is governed by the constitution? What are the boundaries of the constitution? The definition of the class of 'citizens' of a state and the identification of their rights, privileges and responsibilities is one way to answer these questions, and is a core function of national constitutions and a central concern of public law. In this chapter, we consider several written constitutions and attempt to convey some of the diversity in constitutional approaches to this fundamental and universal project for nation states.

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

Recognition and Narrative Identities: The Legal Creation, Alienation and Liberation of the Refugee

Author(s): Matthew Zagor

That a refugee often has a transformative experience in their encounter with a status determination regime is uncontentious. The practical need for legal recognition of a pre-existing status for the purpose of protection marries with a very personal need for recognition of one’s experience. The granting or withholding of either type of recognition has consequences for the various identities created in the process. Both depend upon the story told, and the manner of its reception.

This paper arose initially out of my own anecdotal experience as a legal representative for refugees over many years. It found its genesis in reflections on the role I played in helping shape the story that would be told to administrative decisions makers by my clients, and my growing concern that I was complicit in a process of legal institutionalisation, distortion and even alienation of something ‘authentic’ in the refugee experience and identity. As will become apparent, I am no longer so damning of my role and that of my fellow lawyers and decision-makers, or indeed of the ‘regulative discourse’ imposed by refugee law itself. The refugee has more agency than perhaps appears at first blush. I am also more questioning of my own original assumptions about authenticity, categorisation and recognition.

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

'I am the Law'! – Perspectives of Legality and Illegality in the Israeli Army

Author(s): Matthew Zagor

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has "the most moral army in the world" to justifications for specific military tactics and operations by reference to self-defence and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader "legalisation" of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers' stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-to-day practices of brutality, intimidation and "demonstrating power", to the growing influence of nationalist-religious interpretations of self-defence and the misuse of post-modernist theory by the military establishment to "smooth out" the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories.

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

Book Review: Michael Kirby: Paradoxes and Principles

Author(s): Kim Rubenstein

Janet Malcolm, in her brilliant rumination on the problem of biography in The Silent Woman: Sylvia Plath and Ted Hughes, writes:

… the narratives called biographies pale and shrink in the face of the disorderly actuality that is a life. … The goal is to make a space where a few ideas and images and feelings may be so arranged that a reader will want to linger awhile among them, rather than to flee…

A desire to linger awhile is certainly my reaction to reading and enjoying this fulsome account of the first 70 years of Michael Kirby’s life (drawing on over 117 metres of personal records held by the National Archives of Australia, extensive speeches and other papers prepared by the subject, not to mention his court judgments). Brown also skilfully makes space for a few central images and feelings to assist one’s progress through this extensive and absorbing book. The opening image shared with the reader is of the Khyber Pass, where Kirby was travelling for the second time with partner Johan van Vloten. It is 17 December 1973 and ‘This time, at least, there were no guns’. Three and a half years earlier, Afridi tribesmen ‘brandishing rifles’ asked if he was British and ‘the young Australian traveller answered yes’.

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

Elementary Considerations of Humanity

Author(s): Matthew Zagor

International law has long been infused with a vague commitment towards an indeterminate notion of humanity. An examination of humanity as a specific normative idea in the historical discourse of international law provides a platform for better understanding the rhetorical and substantive meaning of ‘elementary considerations of humanity’ in the seminal Corfu Channel case, as well as Judge Alverez’s use of the more affective (and perhaps honest) term ‘sentiments of humanity’ in his separate opinion. With the Court otherwise silent as to the content, scope and status of the principle, such background informs the judicial attitudinal stance taken towards this apparently ‘self-evident’ principle, as well as the values which the Court and other international tribunals would subsequently bring to their norm creation and enforcement roles, not least with respect to general principles as a source of law. Drawing upon the work of Koskenniemi and the analyses of the Martens clause by scholars such as Meron and Cassese, the chapter places particular emphasis on the political, normative and empathetic potential of the term, and its inherent relationship to a foundational, essentialist and idealistic notion of humanity which continues to gain strength in the discipline.

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

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