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.

The Wages of Sin: Compensation for Indigenous Workers

Author(s): Margaret Thornton

After two centuries of exploitation, Indigenous people in Australia are now engaged in a struggle to recover what has come to be known as ‘stolen wages’, although there is uncertainty as to the best legal avenue. This article overviews the course of the struggle, which began in the industrial arena but moved to the discrimination arena, where modest damages have been awarded, although academic commentary favours breach of fiduciary duty or breach of trust. Drawing on the Kantian binary of active and passive citizens, the authors argue that the initiation of civil action represents an important site of active citizenship. Viewed in this light, it is argued that breach of fiduciary duty should be rejected, if the time of the misappropriation allows it, as it instantiates the passivity and inequality associated with the colonial era, while breach of trust entails monumental problems of proof. Further recourse to anti-discrimination legislation is advocated because its theoretical framework is based on equality - a foundational premise of citizenship.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Liar's Fall a Lesson for Us All

Author(s):

Former Federal Court Judge Marcus Einfeld was taken from the NSW Supreme Court into custody last Friday, after being sentenced by Justice Bruce James to a two-year non-parol period for perjury and perverting the course of justice.

Whilst clearly these charges and the court's sentence are very serious, the circumstances that led up to them are almost too crazy for many of us to believe. As the facts now show, throughout 2006 and 2007, Einfeld lied about driving a car that was caught speeding on camera.

The lies were contradictory, childlike and often hard to believe. Yet isn't one of the first lessons all children learn thou shalt not lie? If so, then why did this experienced, well regarded, former Australian judge lie to avoid a small speeding fine? Why did he not realise that adding one lie upon another and another would end up burying him in a deep and hopeless hole such as the one he is now in?

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

What is the Right Thing to Do?: Reflections on the AWB Scandal and Legal Ethics

Author(s): Vivien Holmes

The Cole Inquiry resulted in a five volume report that extensively details the history of AWB Ltd’s dealings with Iraq under the Oil-for-Food Programme (OFFP). In this chapter, I reflect on the role AWB in-house lawyers played in the AWB-Iraq story, exploring how lawyers who are too closely identified with the perceived interests of the client can step over the ethical (even if not the criminal) line, and work against both the client’s best interests and the public interest. I reflect also on the AWB lawyers’ role as counsel for a corporation whose actions had global ramifications. Legal practice today has global reach and I discuss the implications of this for our professional ethical horizons.

Read on SSRN

Centre: CIPL

Research theme: Legal Education, The Legal Profession

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools

Author(s):

Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.

With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of "customer" and "service provider". Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Contemporary Research and the Ambiguity of Critique

Author(s): Margaret Thornton

Within the marketised context of higher education, research is valued less for its contribution to scholarship than for its income-generating capacity and value to end users. Commodification has significant ramifications for academic freedom as can be seen by the example of research consultancies. Academic freedom is also being affected by the direct interference of neoliberal governments in research policy. While terror censorship is a dramatic manifestation of interference, critical research is also affected by the everyday practices of the contemporary academy. All these factors contribute to the production of de-politicised knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Gender Trap: Flexible Work in Corporate Legal Practice

Author(s): Margaret Thornton

Despite the fact that women comprise well over 50 per cent of law graduates in many parts of the world, women lawyers continue to be clustered disproportionately in the lower echelons of the profession. This paper considers the role of flexible work as a gender equity strategy and is illuminated by interviews with lawyers in élite corporate firms in Australia. It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships. Not only is there a residual suspicion of the feminine in positions of authority and resistance to the idea of bodily absence from the workplace, the contemporary market discourse has erased a commitment to social justice and equality.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s): Molly Townes O'Brien

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL, PEARL

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

Exploring the Group-Identity Function of Criminal Law

Author(s): Molly Townes O'Brien

In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. The problem of disproportionate incarceration is not therefore a problem of one ethnic group or one set of historical circumstances. It is a human problem that is fundamentally connected to social group identity. This essay conducts a preliminary exploration of the role that criminal law serves in group-identity formation. It suggests that building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

Read on SSRN

Centre: CIPL, PEARL

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

Corrosive Leadership (or Bullying by Another Name): A Corollary of the Corporatised Academy?

Author(s): Margaret Thornton

The literature reveals that the incidence of bullying is increasing in corporate workplaces everywhere. While the data is scant, it suggests that bullying in universities is also on the increase. Interviews with Australian academics support this finding. It is argued that the trend has to be understood in light of the pathology of corporatisation, which is designed to make academics do more with less. The focus on productivity parallels the harassment to which workers in the private sector may be subjected in the hope that they will work harder and maximise profits. Avenues of redress are considered which show that dignitary harms remain inchoate as legal harms. While common law and anti-discrimination legislation regimes may occasionally offer a remedy to targeted individuals, it is averred that these avenues are incapable of addressing the causative political factors that induce corrosive leadership.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Retreat from the Critical: Social Science Research in the Corporatised University

Author(s): Margaret Thornton

This paper considers how the contemporary environment is inducing a less critical approach towards research and impacting on academic freedom. It argues that it is not only the interventionist acts of Ministers and terror censorship that academics need to worry about, for the need to satisfy funding bodies is more insidiously exercising a depoliticising effect on research.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Evisceration of Equal Employment Opportunity in Higher Education

Author(s): Margaret Thornton

This paper considers the way in which neoliberalism has impacted on equal employment opportunity (EEO) within the academy. Instead of a focus on the common good, there has been a shift to promotion of the self within the market. Higher education has not been immune from the contemporary imperative to commodify and privatise. Corporatisation has resulted in top-down managerialism, perennial auditing and the production of academics as neoliberal subjects. Within this context, identity politics have either moved to the periphery or disappeared altogether.

Against the background of the ramifications of the socio-political shift and the transformation of the university, the paper considers the rise and fall of EEO and the emergence of new discourses, such as that of diversity, which better suit the market metanarrative. The market has also induced a shift away from staff to students, inviting the question is to whether EEO is now passé.

Read on SSRN

Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

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