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.

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.

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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.

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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

Tolley's International Taxation of Corporaet Finance

Tolley's International Taxation of Corporate Finance

Author(s):

This book introduces and discusses international tax issues relating to corporate finance, group treasury, and banking operations. The book is intended to benefit accountants, lawyers, economists, financial managers and government officials by explaining practical corporate finance international tax issues. These issues include: examples of country tax regimes; corporate finance including issuing shares; debt instruments; bank loans; investment banking activities; and alternative finance such as crowdfunding; microfinance and alternative energy funding; and international tax issues relating to interest and dividend flows; capital gains; and foreign tax credits. The book reviews related topics, including: mergers and acquisitions funding; asset and project finance; securitisation; derivatives; hybrid securities and entities; Islamic financing; bank capital structures; group treasury companies; debt restructuring; and transfer pricing issues. The book is based on Corporate Finance and International Taxation courses presented by the author in London, Paris, Zurich, Lugano, Rio de Janeiro, Mexico City, Hong Kong and Singapore.

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Centre: CCL

Research theme: Administrative Law, Regulatory Law and Policy

New Technologies and the Law of Armed Conflich

New technologies and the law of armed conflict

Editor(s): Robert McLaughlin

Modern technological development has been both rapid and fundamentally transformative of the means and methods of warfare, and of the broader environment in which warfare is conducted. In many cases, technological development has been stimulated by, and dedicated to, addressing military requirements. On other occasions, technological developments outside the military sphere affect or inform the conduct of warfare and military expectations. The introduction of new technologies such as information technology, space technologies, nanotechnology and robotic technologies into our civil life, and into warfare, is expected to influence the application and interpretation of the existing rules of the law of armed conflict. In this book, scholars and practitioners working in the fields critically examine the potential legal challenges arising from the use of new technologies and future directions of legal development in light of the specific characteristics and challenges each technology presents with regard to foreseeable humanitarian impacts upon the battlespace.

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Centre: CMSL

Research theme:

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

Criminal Fair Trial Rights: Article 6 of the European Convention

Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights

Author(s): Ryan Goss

Article 6 fair trial rights under the European Convention on Human Rights are the most heavily-litigated Convention rights before the Strasbourg Court, generating a large and complex body of case law. This book provides an innovative and critical analysis of Strasbourg's Article 6 case law. The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments. The book takes a complementary (but different) approach. Instead of analyzing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to many of the component rights. It will be useful to all those working in the fields of criminal law and human rights.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

International Law: Cases and Materials with Australian Perspectives

International Law: Cases and Materials with Australian Perspectives - Second Edition

Author(s): Donald Rothwell, Stuart B Kaye, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: Environmental Law, International Law

Australian anti-discrimination law 2nd edition

Australian anti-discrimination law 2nd Edition

Author(s): , Neil Rees, Dominique Allen

The second edition of this book, which is the first major text in the field directed to both legal practitioners and law students, contains a detailed analysis of Australian anti-discrimination law as well as extracts from all of the major cases and the writings of leading commentators. It incorporates the many changes to the law since the first edition was published in 2008 and includes new chapters dealing with positive duties, victimisation and protections against discrimination in industrial relations laws. The book includes a comprehensive examination of the difficult concepts of direct and indirect discrimination as well as coverage of the major grounds of unlawful discrimination, such as race, sex and disability. The book records the history of the major pieces of anti-discrimination legislation, examines important international developments and includes numerous suggestions for reform.

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Centre: CIPL

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

Developing Restorative Justice Jurisprudence: Rethinking Reponses to Criminal Wrongdoing

Developing Restorative Justice Jurisprudence Rethinking Responses to Criminal Wrongdoing

Author(s): Tony Foley

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. The work provides a fresh insight into how today’s criminal law might develop in order to bring restoration directly into the mix for tomorrow.

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Centre:

Research theme: Criminal Law

Empowering and Capacity Building Health Professionals for Better Human Rights Outcomes (Presentation Slides)

Author(s): Elizabeth Curran

In her panel paper Dr Curran of AN discusses how health professionals can utilise the Victorian Charter of Human Rights and Responsibilities:

1) To understand human rights and how they are protected in the Charter.

2) Identify relevant human rights in real life scenarios.

3) Understand how the Charter can be used as an advocacy tool for the empowerment of patients and the achievement of social justice.

4) To develop ideas for negotiating better outcomes in local communities.

She gives examples of the use of the Charter by medical health professionals to gain better human rights outcomes for their patients from public authorities. One example was of a maternal and child health nurse who used the Charter when a hospital refused to provide urgent medical treatment to an asylum seeker because she could not pay. The feedback from the maternal and child care nurse was that the Charter ‘works’.

Symposium Goals:

This forum explores the strengths and limitations of human rights and respectful care frameworks in advancing maternity reform in Australia. It seeks to bring together the policy, legal and women’s health communities along with professional providers and birth consumer groups to discuss strategies for improving the quality of care for birthing women and those supporting them.

This dialogue was to build on several recent initiatives, including:

• the European Human Rights conference held in The Hague in June 2012,

• the Childbirth and the Law conference in Sydney in October 2012,

• the international White Ribbon Alliance initiative, Respectful Maternity Care.

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Centre: CLAH

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

Hambly, Torts

Torts: Cases and Commentary (7th ed)

Author(s): David Hambly, Harold Luntz, Kylie Burns, Joachim Dietrich, Neil Foster

Torts: Cases and Commentary delivers a critical and analytical approach to the law of torts presented through extensive commentary and selected materials from case decisions, legislation and academic writings. Detailed notes assist students and practitioners to understand the significance of the key cases while questions stimulate critical thinking and learning. This 7th edition includes discussion of and some excerpts from many cases that have interpreted the Civil Liability statutes enacted in the early years of this century. Current and emerging issues in tort law reform are widely discussed and many additional references to the academic literature are provided.

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Centre:

Research theme: Private Law

Stellios, Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary

Author(s): James Stellios, Jennifer Clarke, Patrick Keyzer

Hanks Australian Constitutional Law - Materials & Commentary is the authoritative casebook for the study of constitutional law. This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. The title reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis.  Improvements for this edition include an integrated chapter on judicial power (Ch 9), separate consideration of s 92 (Ch 11), strengthening the public law focus of chapter 1, and reintroducing a detailed table of contents. New to this edition are reference of state powers to the Commonwealth and intergovernmental co-operation (Ch 1 and 5), national security and defence (Ch 3), and a complete re-write of chapter 8, 'The Executive'.

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Centre: CIPL

Research theme: Constitutional Law and Theory

Cane, Atiyah

Atiyah's Accidents, Compensation and the Law (8th ed)

Author(s): Peter Cane

Since publication of the seventh edition of this seminal text, personal injury law has witnessed momentous changes. A major overhaul of the social security system began in 2012 and the Equality Act 2010 significantly modifies anti-discrimination law and its impact on the disabled. But perhaps the most important legal developments have affected the financing and conduct of personal injury claiming and the operation of the claims-management industry. This new edition takes account of all this activity while setting it into a wider and longer perspective. Complaints that Britain is a 'compensation culture' and that the tort system is out of control are explained and assessed and options for further change are explored. Through the turmoil and controversy, the tort system remains a central feature of the legal and social landscape. The book's enduring central argument for its radical reform remains as compelling as ever.

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Centre: CCL

Research theme: Administrative Law

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