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.

Law, Love and Freedom

Law, Love and Freedom: From the Sacred to the Secular

Author(s): Joshua Neoh

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

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Centre: CIPL, CLAH

Research theme: Law and Religion, Legal Theory

When Is the Advancement of Religion Not a Charitable Purpose?

Author(s): Pauline Ridge

This article addresses the question of why religious groups receive charitable status in relation to religious activities by considering when the current law does not grant charitable status to purposes that advance religion. The jurisdictional focus is upon Australian law, with some reference to other jurisdictions whose law also derives from the English common law of charity. After an overview of the charity law landscape in Australia, the article explains and critically evaluates the grounds upon which charitable status may be refused to purposes that advance religion. The article then considers two considerations that have emerged in twenty first century charity law and that are relevant to the charitable status of religious groups. These concern human rights, particularly the right to freedom of religion, and the use of charity law to regulate religious activity.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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.

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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

Visual: Representations, Technologies, and Critique

Law and the Visual: Representations, Technologies, and Critique

Editor(s): Desmond Manderson

In Law and the Visual, leading legal theorists, art historians, and critics come together to present new work examining the intersection between legal and visual discourses. Proceeding chronologically, the volume offers leading analyses of the juncture between legal and visual culture as witnessed from the fifteenth to the twenty-first centuries. Editor Desmond Manderson provides a contextual introduction that draws out and articulates three central themes: visual representations of the law, visual technologies in the law, and aesthetic critiques of law. A ground breaking contribution to an increasingly vibrant field of inquiry, Law and the Visual will inform the debate on the relationship between legal and visual culture for years to come.

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Centre: CLAH

Research theme: Law and Gender, Law and Psychology, Law and Religion

Not-for-Profit Law and Freedom of Religion

Author(s): Pauline Ridge

The discussion in this chapter of particular intersections between English not-for-profit law and the right to freedom of religion highlights some problems in the existing law. The following suggestions for reform merit further attention. First, ‘religion’ should be defined as widely as possible in order to protect freedom of religion and to promote clarity in legal reasoning. Secondly, in relation to Article 14’s application to religious groups a conceptual framework is needed to determine when it is legitimate for the State to discriminate between religious groups by way of fiscal policy and to more clearly delineate the margin of appreciation afforded to the State when doing so.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

2016_Gozdecka_Rights_Religious

Rights, Religious Pluralism and the Recognition of Difference: Off the scales of justice

Author(s):

Human rights and their principles of interpretation are the leading legal paradigms of our time. Freedom of religion occupies a pivotal position in rights discourses, and the principles supporting its interpretation receive increasing attention from courts and legislative bodies. This book critically evaluates religious pluralism as an emerging legal principle arising from attempts to define the boundaries of  freedom of religion. It examines religious pluralism as an underlying aspect of different human rights regimes and constitutional traditions.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Religion

Modern Equity: Revolution or Renewal from Within?

Author(s): Pauline Ridge

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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.

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Centre: CIPL

Research theme: Human Rights Law and Policy, Law and Gender, Law and Religion, 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.

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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

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

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

Legal Regulation of Religious Giving

Author(s): Pauline Ridge

The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.

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Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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