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.

Cane, Principles of Administrative Law

Cases and Materials for Principles of Administrative Law (2nd ed)

Author(s): Peter Cane, Leighton McDonald

Many administrative law principles are abstract and difficult to apply. The readings in this collection are longer than extracts in a typical cases and material volume. This will help students develop legal reasoning skills and gain a better understanding of how the principles of administrative law are applied and elaborated in specific and factual contexts. To promote these objectives, most of the selected cases and materials are accompanied by reading questions designed to focus students on the essentials of each case and to stimulate further thought.

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Centre: CCL

Research theme: Administrative Law

Sutherland, Social Security

Social Security and Family Assistance Law

Author(s): , Allan Anforth

This 3rd edition comprehensively annotates the social security and family assistance law of Australia, as amended to 5 March 2013. It is the 12th volume in a book series which has annotated the Social Security Act and associated legislation since first publication in 1984. Social security practitioners will find that the 3rd edition maintains the reputation of its predecessors as an indispensable reference for all those engaged in social security and family assistance decision-making, whether as a lawyer, a Tribunal member, a Department or Centrelink officer, or a community advocate. Special features of this new book include: Comprehensive annotations, on a section-by-section basis, covering decisions of the Administrative Appeals Tribunal, the Federal Court and the High Court to 1 January 2013;  follows the current structure of the social security and family assistance legislation but also includes consideration of decisions under repealed provisions of the Social Security Act 1991 and the repealed Social Security Act 1947 which have continuing relevance; detailed discussion of areas of social security law which are the subject of ongoing review activity, increasing complexity and/or continuing debate and difficulty; assets and income testing; debt recovery and waiver; compensation recovery; notices; participation requirements; shared care of children; and marital status.

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Centre: CIPL

Research theme: Administrative Law, Regulatory Law and Policy

Davis, Law of Torts

Law of Torts

Author(s): Jim Davis, Rosalie Balkin

Law of Torts provides clear, authoritative discussion and critical analysis of the law pertaining to tort, with comprehensive coverage of all common law and statutory torts across all Australian jurisdictions. The work covers the civil wrongs protecting intentional injury to person and property; the tort of negligence, with respect both to personal and property damage and for the recovery of purely economic loss; those torts, such as nuisance, in which neither intention nor negligence is necessarily relevant; defamation; and the economic torts which protect the intentional infringement of another's trade or business. The fifth edition has been extensively revised and updated to cover all relevant new developments in case law and legislation, including misleading and deceptive conduct under the Australian Consumer Law, the tort of misfeasance in public office the application by Australian Courts of the House of Lords decision in OBG v Allen relating to economic torts and general updating of case law providing new illustrations of the application of accepted principles.

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Centre: CCL

Research theme: Administrative Law

Eburn, Emergency Law

Emergency law: rights, liabilities and duties of emergency workers and volunteers

Author(s): Michael Eburn

The latest edition of this book has been updated to incorporate the latest developments in case law and legislation. To cover all of Australia, the work has been expanded to include the law in Australia’s smallest self-governing territory, Norfolk Island. For first aiders and paramedics, the discussion on the legal powers granted to paramedics when treating the mentally ill; the patient’s right to refuse treatment and the use of professional training when responding as a volunteer or good Samaritan has been revised and expanded. The chapter on responding to large scale disasters has been significantly re-written to include a discussion on the Australian Inter-Agency Incident Management System and the relationship between AIIMS and state counter disaster or emergency management legislation. Included is a detailed discussion on when control of emergency response can be transferred from the lead agency to a central coordinating committee or to the police. The chapter on legal liability reports on the outcome of litigation arising from the catastrophic bushfires in 2001 (Sydney) and 2003 (Canberra). 

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Centre: CLAH

Research theme: Administrative Law, Regulatory Law and Policy

Pearce, Administrative Appeals Tribunal

Administrative Appeals Tribunal 4th Edition

Author(s): Dennis Pearce

Written by Australia’s leading authority on the work of the Administrative Apepals Tribunal, this book provides a detailed exposition of the jurisprudence of the AAT. The book constitutes a clear and comprehensive treatment of the organisation, its jurisdiction and its procedures and provides essential guidance to anyone who is applying to, or appearing before, the Tribunal.

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Centre: CCL

Research theme: Administrative Law

Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65: Should Gene Patent Monopolies Trump Public Health?

Author(s):

At a time when the double mastectomy of Angelina Jolie has highlighted the importance of genetic testing for breast cancer, the Federal Court’s decision in Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 has clarified that, for now at least, isolated DNA and RNA can constitute a patentable invention under s 18(1)(a) of the Patents Act 1990 (Cth). This is a significant decision for companies seeking to secure patents over DNA and genetic material, whether isolated or not. This column critically examines this case in the context of parallel legal action currently underway in the United States. It also reviews it with regard to political and bureaucratic inaction in Australia (much of which relies upon an overly restrictive interpretation of the High Court decision in National Research Development Corp v Commissioner of Patents (1959) 102 CLR 252) that has compromised the setting of cost-effective public health limits on patentable subject matter concerning the human genome.

Read on SSRN

Centre: CIPL

Research theme: International Law

Global Artificial Photosynthesis: Challenges for Bioethics and the Human Right to Enjoy the Benefit of Scientific Progress

Author(s):

So what is artificial photosynthesis and why is it important? Most of us knew that photosynthesis is the process whereby plants and certain bacteria have used sunlight as a source of energy to split water to create energy fro the production of food (starches) with the addition of atmospheric carbon dioxide, while producing atmospheric oxygen. Our policy makers seem to think that only plants will ever 'do' photosynthesis. This is a bit like the men at the end of the 19th century who were convinced that only birds could ‘do’ controlled flight. If they were alive today their solution for long distance air travel might be to genetically engineer huge homing pigeons, capable of carrying passengers on their back.

Artificial photosynthesis began in the Cold War. It really was part of what was known in the 'Dr Stangelove' film as the 'mine-shaft' gap, part of the plan to enhance the capacity of the United States to keep its politicians, senior industrial and military people alive during a nuclear winter. Although artificial photosynthesis on some definitions includes synthetic biology (for example the genetic engineering of bacetria to produce lipid-based fuels) its core research involves nanoscale engineering. The nanoscale involves manipulating matter at the level of about a billionth of a metre, it involves making objects atom by atom. Some examples of how nanotechnology is already improving the light capture, electron transport and water splitting and energy storage aspects of artificial photosynthesis will be presented later.

Perhaps the most significant aspect of artificial photosynthesis is the prospect that nanotechnology may allow the global domestic production of cheap, 'off-grid' solar fuels and food. With timely and coordinated government, academic, corporate encouragement, artificial photosynthesis may become a global phenomenon, deriving inexpensive, local (household and community) generation of fuels and basic foods from simple raw materials – sunlight, water and carbon dioxide – just like plants do, only better.

One way governance principles (such as those derived from international human rights) can assist this process is by assisting to create the normative architecture for a Global Artificial Photosynthesis project (GAP) (or Global Solar Fuels and Foods (GSF)) project. Such a macroscience GAP or GSF project can be regarded as the moral culmination of nanotechnology. It could advance existing foundational virtues of international human rights such as justice equity and respect for human dignity, as well as emerging virtues such as environmental sustainability. In other words, this is one area where we need to have law and science rapidly and efficiently working side by side if it's going to work in time to make a difference and assist humanity to move from what (as we will see) is now no longer being called the Holocene, but the Anthropocene, towards the Sustainocene epoch.

One hitherto largely unexplored area of international human rights that could be significant in this context concerns the right to enjoy the benefits of scientific progress and its applications.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Planetary Medicine and the Waitangi Tribunal Whanganui River Report: Global Health Law Embracing Ecosystems as Patients

Author(s):

A recent decision of the Waitangi Tribunal granted legal personhood to New Zealand’s Whanganui River (appointing guardians to act in its interests). Exploring the impacts of this decision, this column argues that new technologies (such as artificial photosynthesis) may soon be creating policy opportunities not only for legal personhood to be stripped from some artificial persons, but for components of the natural world (such as rivers and other ecosystems) to be granted such enforceable legal rights. Such technologies, if deployed globally, may do this by taking the pressure off ecosystems to be exploited for human profit and survival. It argues that, by also creating normative space 

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Centre: CIPL

Research theme:

Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea: Espionage Between Neighbours in the Latest Round

Author(s): Donald Anton

This brief article details the latest in a long-running dispute between Timor-Leste and Australia over rights to resources in the seabed and subsoil below the sea between their coastlines. Having been closed out of the International Court of Justice and the International Tribunal for the Law of the Sea, Timor-Leste is now seeking to arbitrate its dissatisfaction with current arrangements under a provision in the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). Potential claims of fraud, breach of good faith, and unlawful intervention mean that it is possible; perhaps likely, that CMATS will be declared invalid or void. Much will depend on the evidence, however. Australia now finds itself in a difficult situation and the dispute is likely to continue and fester absent good will on the part of both parties. The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries of between Timor-Leste and Australia in order to achieve and equitable solution, create certainty about rights, and bring an end to this continuing saga.

Read on SSRN

Centre: CIPL

Research theme: International Law

Environmental Protection and Human Rights

Environmental Protection and Human Rights

Author(s): Donald Anton

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

international_law_and_the_2003_invasion_of_iraq_revisited.jpg

International Law and the 2003 Invasion of Iraq Revisited

Author(s): Donald Anton

This paper was presented on April 30, 2013, at a Canadian-Australian seminar on the 2003 invasion of Iraq ten years later. It canvasses and reconsiders the two major justifications put forward by the US, UK, and Australia for military intervention in Iraq -- revived Security Council authorization and self-defense. It concludes by highlighting that states who had opposed military action in Iraq have been keen to ensure that it would not be legitimize with the passage of time, as some claim has happened with Kosovo. Many states are still critical given the uncertain future of Iraq and continue to assert the illegality of the invasion. Certainly states in the Security Council and elsewhere have become much more careful with the language, especially the language of consequential Resolutions. Indeed, they appear to exhibit and cautious unwillingness to approve seemingly necessary measures. The way in which the US, UK and Australia mounted their revival argument has, no doubt, hampered the ability to reach agreement in the Security Council on urgent humanitarian disasters like Syria and elsewhere. One hopes that in the future the long work on cooperative action in the Security Council will be preferred to plausible, but unpersuasive, legal interpretation.

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Centre: CIPL

Research theme: International Law

The Dark Days of NSA Indiscriminate Data Surveillance

The Dark Days of NSA Indiscriminate Data Surveillance

Author(s): Donald Anton

This is an op/ed published in the Canberra Times on June 14, 2013. It highlights that the mass surveillance of metadata of hundreds of millions online users by the U.S. National Security Administration is a crisis for both privacy and freedom. It calls for action to establish transparent constitutional limitations under US law and international human rights law on privacy. If we do not take action, if we are like sheep and easily scared into relinquishing our privacy and personal liberties in exchange for the false promise of certain security, then liberty has started to die in our hearts and if that is so, as Learned Hand once remarked, no law can save it or us.

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Centre: CIPL

Research theme: International Law

Australia Before the World Court

Australia Before the World Court: A Look Back and a Look Forward

Author(s): Donald Anton

This piece was a contribution to a Symposium held on June 7, 2013 in anticipation of the commencement of the oral proceedings in the Whaling in the Southern Ocean Case between Australian and Japan, before the International Court of Justice on June 26, 2013.

The paper traces the Australian experience before the World Court in order to place the Whaling in the Southern Ocean Case in context and to try to draw some lessons. It starts by considering the nature international adjudication and the limitations of an agency whose principal function is to apply legal techniques in the peaceful resolution of international disputes. It spends the most time, however, excavating around Australia’s first relationship with an international tribunal – the PCIJ – and then building on Henry Burmester’s masterful contribution on ‘Australia and the International Court of Justice’ in the 1996 Australian Yearbook of International Law. It also spends considerable time telling two early stories about Australia's relationship with the World Court, that are little remembered today.

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Centre: CIPL

Research theme: International Law

The 'Thirty Percent Solution'

The 'Thirty Percent Solution' and the Future of International Environmental Law

Author(s): Donald Anton

This is a contribution to a symposium volume on Dan Bodansky's "Art and Craft of International Environmental Law". It takes as its starting point, Bondansky's accurate claim that "International environmental law is neither a panacea nor a sham. It can play a constructive role, but that is all. It might be called a 'thirty-percent” solution.'" While it might be more than that some day, the contribution argues that outcome is not likely so long as the international community retains the concept of sustainable development, as it is currently understood, as its organizing principle.

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Centre: CIPL

Research theme: Environmental Law, International Law

Climate Change and Indigenous Peoples

Book Review: Climate Change and Indigenous Peoples: The Search for Legal Remedies, Randall S. Abate & Elizabeth Ann Kronk, Editors (Edward Elgar: Cheltenham, UK & Northampton, MA, USA, 2013) pp. i-xxvii; 1-590

Author(s): Donald Anton

The excellent book that Professors Abate and Kronk have brought together as an edited collection is an important addition to an ongoing search for legal remedies for indigenous peoples facing existential threats on account of climate change harms. It picks up on a 2009 report by the Office of the UN High Commissioner for Human Rights that examined the linkages between climate change and indigenous peoples for the first time, at least by an international human rights body. Abate and Kronk write in the opening chapter, their book “recognizes that indigenous peoples are particularly vulnerable to climate change, both physically and legally” and the book specifically “addresses the challenges that these communities face in responding to climate change impacts.”

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Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Substance and Procedure in Private International Law

Book Review: Richard Garnett, Substance and Procedure in Private International Law, Oxford University Press, Oxford 2012, lxvii 384 pp. ISBN 978-0-19-953279-7.

Author(s): Donald Anton

Garnett's book provides a fresh, detailed look at the significantly understudied issue of whether rules governing the application of procedure in transnational litigation should be found in private international law or the law of the forum. It does so from a number of different angles which demonstrate the highly practical importance of the distinction between substance and procedure. More significantly, the book has the potential to play a central role in taking an historic universally accepted rule in choice of law – the law of the forum always controls matters of procedure – and further unsettling this certainty by offering compelling reasons why the contemporary application of the rule needs to be more nuanced based on something like Kahn-Freund’s concept of ‘enlightened lex fori.’

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Centre: CIPL

Research theme: International Law

Artificial Photosynthesis

Artificial Photosynthesis as a Frontier Technology for Energy Sustainability

Author(s):

Humanity is on the threshold of a technological revolution that will allow all human structures across the earth to undertake photosynthesis more efficiently than plants; making zero carbon fuels by using solar energy to split water (as a cheap and abundant source of hydrogen) or other products from reduced atmospheric carbon dioxide. The development and global deployment of such artificial photosynthesis (AP) technology addresses three of humanity’s most urgent public policy challenges: to reduce anthropogenic carbon dioxide (CO2) emissions, to increase fuel security and to provide a sustainable global economy and ecosystem. Yet, despite the considerable research being undertaken in this field and the incipient thrust to commercialization, AP remains largely unknown in energy and climate change public policy debates. Here we explore mechanisms for enhancing the policy and governance profile of this frontier technology for energy sustainability, even in the absence of a global project on artificial photosynthesis.

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Centre: CIPL

Research theme: Environmental Law

Nano-Safety or Nano-Security?

Nano-Safety or Nano-Security? Reassessing Europe's Nanotechnology Regulation in the Context of International Security Law

Author(s):

The rapid development of nanotechnology over the last decade has resulted in a widespread introduction of engineered nanomaterials (ENMs) into the consumer products of developed countries. Because of the potential toxicity of ENMs, however, concerns for health and environmental safety have led to controversial public debates in many countries as to whether and how the safety of products containing ENMs should be specifically ensured. In these regulatory debates, however, the role nanotechnology plays in addressing various contemporary security challenges is given little, if any, attention. This perspective article proposes that these contemporary security challenges should be more clearly incorporated into regulatory decision-making about nanotechnology, while protecting the public from potential health and environmental security threats that may result from exposure to a widespread and uncontrolled release of ENMs. It demonstrates the significance of enhancing this security perspective to nanotechnology regulation by: (1) highlighting international legal obligations relevant to nanotechnology; and (2) examining the current regulatory approaches adopted in Europe in light of various security considerations relevant to the implementation of those international legal obligations.

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Centre: CIPL

Research theme: International Law

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Betfair Pty Ltd v Western Australia and the New Jurisprudence of Section 92

Author(s):

Except for an immediate small flurry of cases, section 92 of the Australian Constitution went to sleep for 20 years after the High Court’s ground-breaking decision in Cole v Whitfield in 1988. Then in 2008, this pivotal guarantee of free trade among the states in our 19th century foundational document came into collision with new, 21st century, electronic ways of doing business, to which state geographical boundaries were largely irrelevant — except that it was the states that sought to regulate this business. In Betfair Pty Ltd v Western Australia, a 2008 case involving state regulation of internet gambling, the High Court reminded us of the gospel according to Cole v Whitfield: the states cannot regulate in a way that discriminates against interstate trade so as to confer protectionist benefits on their own intrastate trade. In the age, however, of the new economy, and of national competition law, some commentators have asked whether the national ‘common market’ is adequately fostered by confining section 92 to the prevention of state protectionism. Two further internet gambling cases in 2012 appear to squash any suggestion in the 2008 case that the High Court might stray from the true path of Cole v Whitfield and expand the ambit of section 92 beyond state protectionism — although a possible issue raised by laws that lessen competition without involving state protectionism was left to another day. In the author’s view, section 92 is appropriately confined to the prevention of state protectionism, with broader protection of the common market best left to other mechanisms.

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Centre: CLAH

Research theme: Human Rights Law and Policy

Energy and Environment Policy Case

Energy and Environment Policy Case for a Global Project on Artificial Photosynthesis

Author(s):

A policy case is made for a global project on artificial photosynthesis including its scientific justification, potential governance structure and funding mechanisms.

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Centre: CIPL

Research theme: Environmental Law

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team