Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Nanotechnology: Toward the Sustainocene

Nanotechnology Toward the Sustainocene

Editor(s):

While the sustainability of our world is being endangered or destroyed by the misguided activities of artificial human entities, real people have begun to expand their moral sympathies sufficiently to prioritize protecting our world’s interests. They have developed a new technology - nanotechnology - that has the potential to advance human society toward a period of long-term sustainability, termed "the Sustainocene". This book comprises chapters by experts in various fields of nanotechnology and in related areas of governance under the theme of how nanotechnology can assist in the creation of the Sustainocene. The book will appeal to anyone involved in nanotechnology, macromolecular science, public policy related to sustainability, renewable energy, and climate change.

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Centre: CIPL

Research theme:

The Politics of Jurisprudence

The Politics and Jurisprudence of the Chaudhry Court 2005-2013

Editor(s): Moeen Cheema, Ijaz Shafi Gilani

Former Chief Justice of Pakistan Iftikhar Muhammad Chaudhryas tenure, from 2005 to 2013, has been characterized by remarkable developments in constitutional politics and the jurisprudence of the apex court. This was also a period of great controversy and the actions of the Chaudhry Court polarized the debate on the role of the Supreme Court. Despite the emergence of such vociferous debate, a detailed scrutiny of the Chaudhry Courtas actions has thus far been lacking. This volume represents an attempt to fill this gap by closely analysing the jurisprudence of the Supreme Court and reflects on the likely legacy of Chief Justice Iftikhar Muhammad Chaudhryas tenure. The contributions also constitute an effort at deepening the debate that has surrounded the courtas actions during the last few years. It goes beyond the critique of the court on the grounds that it has acted politically and violated the constitutionally mandated separation of powers between the judiciary, the legislature, and the elected executive.

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Centre: CIPL

Research theme: Constitutional Law and Theory

The Law of the Sea

The Oxford Handbook of The Law of the Sea

Editor(s): Donald Rothwell, Alex G Oude Elferink, Karen N Scott, Tim Stephens

This book provides a landmark study into the law of the sea, taking stock of the majors developments, core concepts, and key challenges within this fundamental area of law. Written by over forty expert contributors, both eminent scholars and leading practitioners, it explores the most important issues facing the world's oceans and seas, including piracy, climate change, and military operations.

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Centre: CMSL

Research theme: International Law

Legal Psychology in Australia

Legal Psychology in Australia

Author(s): Mark Nolan, Jane Goodman-Delahunty

Legal Psychology in Australia is an introductory book aimed at enabling the teaching of legal psychology to law students, (forensic) psychology students, criminology students, and a range of students from diverse professions (eg. social work, psychiatric nursing, mediation, policy-makers, and investigative journalism) relevant to the legal system. Authored by experienced empirical legal psychological researchers and teachers Mark Nolan and Jane Goodman-Delahunty, Legal Psychology in Australia will encourage law students to learn more about the psychological evidence base that can and should be used as the basis for law reform and the analysis of Australian law in action.

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Centre: CMSL, LGDI

Research theme:

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.

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Centre: CIPL, CMSL, LRSJ

Research theme: Migration and Movement of Peoples

‘Working Collaboratively, Holistically and Strategically in and with Community – The Power of Community Development in Legal Education’ (Presentation Slides)

Author(s): Elizabeth Curran

“You never really understand a person until you consider things from his point of view…Until you climb inside of his skin and walk around in it” Atticus Finch, To Kill a Mockingbird, Harper Lee.

I have been asked to answer the following questions today: 1. What is Community Development 2. What it means in terms of approach 3. To provide examples of when I have used it in my work 4. To distill any examples of how it is done 5. To discuss how to evaluate its impact and worth and 6. To examine why it might be a core service of CLCs. 7. Dome key challenges in terms of funding and funders.

Now in Australia we have the empirical data that had been lacking to support anecdotally what had been observed by some service providers over many years. These empirical studies not only demonstrated that similar issues arise in Australia for people who are the recipients of legal assistance services (largely people on social support or with incomes of under $26,000K) but that inroads could be made by joined- up services both legal and non-legal, holistic approaches, community legal education that reaches out and is targeted and responsive to community needs and behaviour. The studies confirmed that the direction of many legal assistance services to work collaboratively, holistically and strategically to assist people, to educate them and to work towards law reform to ensure that recurring problems are all critical if access to the legal system and equality before the law are to be attained.

CLCs have a vital role as community agencies along with others to enable community members to have and find a voice.

“If funders and the community want the legal assistance sector to make a difference in solving people’s problems and advancing and protecting community rights then they must recognize the need to approach problems strategically and use various approaches to obtain results. To achieve this, organizations must be given a level of autonomy that frees them up to use their skills, experience and knowledge of the system as well as the client's actual circumstances to decide the best strategy.”

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Building Capacity to Cope with Ethical Dilemmas in Legal Practice Through Teaching ‘Giving Voice to Values’ Techniques (Presentation Slides)

Author(s): Elizabeth Curran

This panel presentation will be a basic introduction for a more detailed session on Saturday with Viv Holmes, Anneka Ferguson (in absencia) which will discuss the theory, practice, research and student responses that informs our courses.

In the context of Recommendations 6 and 7 Critical issues and challenges are presented. How can teachers challenge students to explore ethical dilemmas emerging in all area of practice be they commercial, property, consumer and civil law? How can we as teachers not just teach students to identify ethical issues but also assist them in building the tools necessary to actively and appropriately deal with such dilemmas?

In the ANU Legal Workshop (delivered in a blended mode with face to face and on-line teaching) the professional legal training course for graduates to become admitted to legal practice, we use Mary Gentile’s ‘Giving Voice to Values’ (GVV) approach. This will be briefly explained.

I have taught ethics in an undergraduate context and am now teaching at graduate levels and see more opportunities using the GVV approach. In Legal Workshop’s Ethics subject and in a subject, ‘Professional Development’ (PM) that supports key practice areas, we use GVV to engage students at a deeper level so they learn about themselves and their working environment. The key GVV approach is to equip students with not only the ability to identify an ethical problems but also strategies to enable them to act on their ethical duties.

Our aim is to build the students’ resilience, build their capacity to act ethically and speak up appropriately and wisely.

During my section of the panel presentation, I will ask the audience to participate by doing the first exercise students undertake- a Professional Development Journal Entry. This activity is based on GVV’s ‘Tale of Two Stories’ and requires students to recall and then reflect on a time in their lives when they have, and have not, ‘spoken’ their values. The activity is a useful lead-in to tackling ethical issues in legal workplace scenarios as the course progresses (tomorrow’s session). This activity starts the reflective practice conversation and flags issues that emerging lawyers face in responding ethically. In student debriefs some of our students (many of whom work in legal practice as para-legals, judges associates, waitressing, marketing and fact food outlets etc.) indicate they already often encounter unethical practice and that examining the reasons why they speak or do not speak out is useful for the later exercises. The discussion also has scope for teachers to share their experiences, values and ethical dilemmas and how they did or not deal with them. In the follow-up session on Saturday we will explore how the GVV approach enables students to develop and practise skill for acting ethically. It is suggested a similar activity could be used in undergraduate level to start reflective practice and the values and ethics discussion with students earlier.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

'CLCs Having an Impact on Lives - Strategic Approaches to Problem Solving’ (Presentation Slides)

Author(s): Elizabeth Curran

Theme - Advancing (by discovering and creating, developing innovative ideas and strategies, including and incorporating the learning and perspectives of others):

Strategic thinking can and has enabled the benefits of early intervention and prevention of legal problems and their escalation. This goes beyond one-to-one case work and can address problem at their core. This paper will explore easy, useable, relevant and replicable results of research evaluations undertaken by Curran of what is effective legal service action that has prevented the public from having to go through the same problem and thus enhancing service impact. Reflective practice is a key way to inform strategic action and continuous learning and how this can be done will also be explored.

This paper examines case studies from CLCs, good practice, responsiveness, strategic thinking and processes that foster having significant impact. It will share how to, up to date action research, facilitate sharing of experiences through the session’s interactive approach.

The session will take an adult learning approach to delivery meaning it will involve centres in discussion about their experiences rather than being in a traditional or lecture mode of delivery. People in the room have expertise and skills that can be shared by all in participants in the session.

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

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: CIPL

Research theme: Criminal Law

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: CCL

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

Rehabilitiation and Compensation Act 1988

Annotated Safety, Rehabilitation and Compensation Act 1988 (10th ed)

Author(s): , John Oman Ballard, Allan Anforth

The 10th edition of this well known reference book provides the full text of the Safety, Rehabilitation and Compensation Act as at 1 April 2014, together with comprehensive annotations, organised on a section-by-section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal on the Act. The book has up-to-date discussion of recent litigation concerning the Safety, Rehabilitation and Compensation Act, including "reasonable administrative action taken in a reasonable manner", liability for injuries in the course of employment, and construction of the approved Guide. It also includes a list of all legislative instruments published in the Gazette or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act where the date of injury was before 1 July 2004. Canberra barrister Allan Anforth has contributed an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

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Centre: CCL

Research theme: Administrative Law, Regulatory Law and Policy

Tolley's International Taxation of Upstream Oil and Gas

Tolley's International Taxation of Upstream Oil and Gas

Author(s):

The scope of this title is to introduce and review significant international tax issues for upstream oil and gas operations. The book introduces and explains practical upstream tax issues, with an emphasis on tax risk management and related tax planning. Readers will develop skills in identifying tax exposures and opportunities, managing tax negotiations, and applying tax planning solutions and is intended to benefit accountants, lawyers, economists, financial managers and government officials. The book aims to be the first choice for the new starter in upstream oil and gas taxation. It also aims to be the best introduction of international tax issues relating to upstream oil and gas, enabling the reader to analyse and understand new situations and circumstances, rather than an encyclopaedic reference of tax issues.

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Centre: CIPL

Research theme: Administrative Law, Environmental Law, International Law

Statutory Interpretations in Australia

Statutory Interpretation in Australia

Author(s): Dennis Pearce, Robert Stanley Geddes

Forty years since the first edition was published and eight editions later, Statutory Interpretation in Australia remains the pre-eminent text on the subject. Statutory Interpretation in Australia, 8th Edition concentrates on: statements of the courts and tribunals – describing approaches, assumptions and techniques of interpretation, as well as the application of these in one’s work; and the Interpretation Acts of each of the Australian jurisdictions - understanding the content of which is essential to determining the meaning of legislation. Extensive case references to the relevant principles for each jurisdiction have been included, allowing readers to identify the authorities that best suit their particular purposes.

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Centre: CIPL

Research theme: Administrative Law

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Brief of Amici Curiae International Law Professors in Chevron Corp. V. Donziger

Author(s): Donald Anton

On July 8, 2014 a group of international law professors filed their second amicus curiae brief in the epic 20 years litigation between indigenous Ecuadorians and Texaco/Chevron over environmental destruction and human rights breaches. This case is collateral to the main action, in that Chevron took preemptive action in U.S. Federal Court in order to try to block the recognition or enforcement of a multi-billion dollar Ecuadorian judgement against Chevron. This is the second time it has been on appeal to the Second Circuit. The first appeal resulted in a reversal of the District Court and its purported worldwide preliminary injunctions was vacated.

In this brief, the amici address important international legal issues associated with the imposition of a worldwide constructive trust by the District Court in it final judgment. In imposing this radical trust for which there is no precedent, the District Court failed to correctly apply principles of international comity and to consider applicable international legal obligations binding on the United States. The amici believe that these failures have resulted in reversible error for the following four reasons.

First, the District Court’s worldwide equitable constructive trust is inconsistent with the Court’s decision in Chevron v. Naranjo, 667 F.3d 232 (2d Cir. 2011) because the impermissible extraterritorial impact of the constructive trust is identical to the impact of the preliminary injunction previously vacated by this Court. Second, the District Court erred in ordering relief that offends international comity. The District Court impermissibly attempts to impose its own terms of exclusive relief in the form of a constructive trust on every other court in the world. It seeks to dictate to the courts of the world what will happen if they recognize and enforce the underlying Ecuadorian judgment. This is an affront to: i) foreign courts that order the Ecuadorian judgment to be recognized and enforced; ii) foreign courts that cannot or would not pronounce on the systemic fitness of a foreign judiciary; and iii) foreign courts that must or might prefer to order different relief. Third, the District Court’s constructive trust cannot be enforced outside of the United States and is therefore an exercise in futility. Because equity will not do a vain or useless thing, the District Court should be reversed. Fourth, the District Court’s extraterritorial constructive trust breaches the international legal obligation of the United States not to intervene in the domestic and external affairs of other states. The extraterritorial application of the constructive trust directly intrudes in to the administration of Ecuadorian justice both internally and externally in places where its judgment might be recognized and enforced.

Read on SSRN

Centre: CIPL

Research theme: International Law

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Introductory Note: 2014 Protocol to the Forced Labour Convention, 1930

Author(s): Donald Anton

Two major ILO Conventions prohibit forced or compulsory labor in all its forms – Conventions 29 and 105. Convention 29 was adopted in 1930. Forced labor at the time was mostly seen as related to the dictates of colonial administrations, along with a few states. Despite this perceived limited context, the ILO adopted an open-ended definition of prohibited forced labor without listing specific prohibitions. The definition continues to apply to every possible form of forced labor and to all workers no matter whether in the public or private sector. Convention 105 was adopted in 1957. It advances Convention 29 by requiring the immediate abolition of forced labor in five specific cases related to forced labor by the State for economic purposes or as a means of political coercion.

Yet, for some time, it has been felt that gaps existed and additional measures were needed to strengthen international cooperation to combat modern forms of forced labor. In 2013, an ILO tripartite meeting of experts concluded that “[d]espite the broad reach of Convention No. 29…significant implementation gaps remain in the effective eradication of forced labour and need to be urgently addressed in terms of prevention, victim protection, compensation, enforcement, policy coherence and international cooperation…” The experts also concluded “that there was added value in the adoption of supplementary measure to address the significant implementation gaps remaining in order to effectively eradicate forced labour in all its forms.” Acting on these conclusions, the 103rd Session of the International Labour Conference (ILC) voted on its third major instrument designed to strengthen international efforts to end all forms of forced labor. With 437 votes for, 8 against, and 27 abstentions, the General Conference of the ILO adopted the Protocol of 2014 to the Forced Labour Convention, 1930.

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Centre: CLAH

Research theme: Human Rights Law and Policy

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Rethinking Treatment for Children with Gender Dysphoria and the Family Court's Welfare Jurisdiction

Author(s): Haydn Marsh

The authorisation of treatment for children with gender dysphoria has been found, inappropriately, to fall within the Family Court of Australia’s welfare jurisdiction. For a particular medical treatment to attract the Court’s supervisory jurisdiction it must be found that the child is not competent to consent to the treatment themself and the treatment must fall within the ambit of what the Court has called a ‘special medical procedure’. The intent behind the exercise of the Court’s welfare jurisdiction is to safeguard the best interests of children.

Contrary to previous decisions of the Court, treatment for gender dysphoria does not fall within the factors identified by the majority of the High Court in Marion’s Case as being indicative of a ‘special medical procedure’. The practical effects of this mistaken characterisation are, paradoxically, detrimental to children with gender dysphoria. In addition, the ability of mature children to authorise partially irreversible treatment for themselves has been unnecessarily complicated, and measures should be taken to clarify and standardise the law in this area.

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Centre: CLAH

Research theme: Human Rights Law and Policy

The Mirage of Merit

The Mirage of Merit: Reconstituting the 'Ideal Academic'

Author(s): Margaret Thornton

This paper takes a hard look at merit and the ideal academic, twin concepts that have been accorded short shrift by the scholarly literature. For the most authoritative positions, the ideal displays all the hallmarks of Benchmark Man. Despite the ostensible 'feminisation' of the academy, the liberal myth that merit is stable, objective and calculable lingers on. As a counterpoint to the feminisation thesis, it is argued that a remasculinisation of the academy is occurring as a result of the transformation of higher education wrought by the new knowledge economy. In response, the ideal academic has become a 'technopreneur' – a scientific researcher with business acumen who produces academic capitalism. This new ideal academic evinces a distinctly masculinist hue in contrast to the less-than-ideal academic – the humanities or social science teacher with large classes, who is more likely to be both casualised and feminised.

Read on SSRN

Centre: CIPL, CLAH

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

The Practice of 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.

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Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, Regulatory Law and Policy

Adventures in the Grey Zone

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.

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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

The Public Law of Restitution

Author(s): Greg Weeks

Restitution as the response to unjust enrichment has been available for a long time. As a body of law, it has mainly related to transactions between private entities. The decision of the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 changed the law of restitution as it had developed in the UK up to that point. It did this by holding that an unlawful demand for a payment of tax which was not due was an unjust factor capable of making out unjust enrichment and enabling the claimant to obtain restitution of the money paid and interest. This government-only unjust factor operates in a fashion which is distinct from unjust factors which focus on the intention of the claimant to transfer wealth. Instead it asks whether the transfer of money was consequent on an unlawful demand. Woolwich has not as yet been adopted in Australia, but this article argues that it should be, albeit not as a direct constitutional claim. It further discusses the importance of Woolwich as a basis for restitution consequent on the use of soft law, which is a pervasive and highly effective means of regulation which otherwise results in almost no legal consequences.

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Centre: CIPL

Research theme: Administrative Law

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