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.

Environmental Protection and Human Rights

Environmental Protection and Human Rights

Author(s):

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

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

Author(s):

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

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):

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.’

Read on SSRN

Centre: CIPL

Research theme: 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):

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.”

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

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.

Read on SSRN

Centre: CIPL

Research theme: Environmental 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 

Read on SSRN

Centre: CIPL

Research theme:

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.

Read on SSRN

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.

Read on SSRN

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.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

Solving Problems

Solving Problems – A Strategic Approach: Examples, Processes & Strategies

Author(s):

The report has been commissioned by Consumer Action Law Centre and the Footscray Community Legal Centre and launched at a National Conference and the Ruby Hutchison Lecture on Thursday 14 March 2013. The ACCC and CHOICE jointly host the Ruby Hutchison Memorial Lecture each year. Ruby Hutchison was the founder of the Australian Consumers' Association which is now known as CHOICE.

Dr Curran's report which was written with the assistance of the staff of Consumer Action Law Centre and the Footscray Community Legal Centre illustrates the importance of going beyond an individual approach to casework to benefit individuals, groups and the broader community. It argues that a strategic approach to problem solving can better ensure that a service is effective, efficient and targeted, with a broader and long lasting impact or as government says - a “successful outcome”. It also proposes that community legal centres should be given more support to encourage and foster an environment where strategic thought and planning about service mix approaches are used to make the service more outcome-focused. This would lead to service being more effective and mindful of what interventions are needed to achieve the best outcomes rather than merely providing case work, information and referral in isolation from a broader strategy that improves clients’ lives.

Read on SSRN

Centre:

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

‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power

Author(s): Greg Weeks

This article analyses the options available to the High Court in defining the phrase 'officer of the Commonwealth' in the context of modern mixed administration. The various tests used in Australian administrative law are explored, with a focus on the "public function" test developed in Datafin. We argue that these administrative law tests are largely unhelpful and inappropriate for defining the scope of section 75(v) of the Constitution. Instead, we suggest that the High Court could find inspiration for the most appropriate and adapted solution from an unlikely place: Canadian human rights law. We argue that by adapting the 'control' used by Canadian courts to determine the scope of Canadian Charter of Rights and Freedoms, the Australian High Court could find an appropriate balance for reviewing the actions of private sector actors, while simultaneously achieving consistency with existing precedent.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

My Top Ten Tips for Good Deaning

My Top Ten Tips for Good Deaning

Author(s):

In this paper, which originated as an after-dinner speech to other Deans, the author reflects on his 15 years as Dean of the ANU College of Law and shares his 'top ten tips' for succeeding in this important and challenging leadership position. Without diminishing the importance of attention to budgetary matters, especially fund raising, and to mundane matters of management and administration, he rather stresses the importance of fostering collegiality, energising one's colleagues, and generally creating an environment in which everyone can thrive and realise their own true, and unique, potential.

Read on SSRN

Centre:

Research theme: Legal Education

The Expansion of Global Law Firms in Australia and Asia

The Expansion of Global Law Firms in Australia and Asia

Author(s):

Over the last 18 months the legal profession has seen unprecedented growth in the operations of global law firms in Australia. Recent mergers between top-tier and leading Australian law firms demonstrate the importance of Asian markets and the shifts in economic power from the West to the East. For such firms there are clear market and competitive drivers for expansion into Australia including proximity to rapidly developing Asian economies and increased opportunity to expand the firm’s global brand. Yet understanding the role played by Australian law firms in these developments can be tricky. For some newly merged global firms, the Australian operations are central to the firm’s regional and global expansion, allowing the firm to draw upon the strong performance and reputational capital of the Australian offices. For other global firms their alliances with Australia firms provide a strategic foundation for their expansion into Asia. And for third group of firms Australia remains a destination in its own right, sitting within the firm’s overall global network of international offices.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Legal Education, Private Law, Regulatory Law and Policy

Strategic Privatisation

Strategic Privatisation of Transnational Anti-Corruption Regulation

Author(s):

This article discusses the privatisation of transnational anti-corruption regulation. Increasing global non-state rules, guidelines and standards have become a visible and legitimate form of corruption regulation and a key influence on the development and implementation of state-based anti-corruption laws. These private regulatory instruments are created by multilateral development banks, bi-lateral and multi-lateral development agencies, NGOs, industry groups, private corporations and technical experts. The result is that state-based transnational anti-corruption regulation is now increasingly privatised, harmonised and globalised. This not only affects developments in national anti-corruption regulation, but also the direction of corporate governance more generally. Whilst the interaction between public national and private global regulation is clearly of strategic benefit to governments, it is also creating a multi-level framework of incentives and pressures on global corporations to improve the integrity of their activities and reduce the incidence of corruption.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Legal Education, Private Law, Regulatory Law and Policy

Arctic Sovereignty

Arctic Sovereignty and its Legal Significance for Canada

Author(s): Donald Rothwell

Throughout much of the Twentieth Century there was an ongoing debate within Canada as to the status of its territorial claims in the Arctic. Following the voyage of the SS Manhattan in 1969 that debate was joined to also encompass consideration of Canadian Arctic maritime sovereignty. With the exception of the disputed Hans Island, over which Canada and Denmark have agreed to disagree, there is no direct challenge to Canadian Arctic sovereignty in 2013. Nevertheless, it has been a persistent theme in Canadian academic and political discourse for much of the past decade that Canada’s Arctic sovereignty is threatened. Canada, along with all of the Arctic states, is also beginning to face the reality that the Arctic is facing rapid globalization partly as a result of climate change and the melting of the Arctic ice but also because of the growing interest of non-Arctic states in accessing the Arctic. This paper seeks to challenge some of the perceptions that have developed with respect to Canadian Arctic sovereignty from the perspective of international law. Consideration will be given to the status of Canada’s territorial and maritime claims in the Arctic, and the rights and obligations that Canada has in the Arctic as a party to the 1982 UN Convention on the Law of the Sea (LOSC). Particular attention will be given to Canada’s claims to an Arctic outer continental shelf, the regulation and management of the Northwest Passage, and the freedoms of navigation enjoyed by non-Arctic states within Canada’s exclusive economic zone.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law

The Law of Deliberative Democracy

The Law of Deliberative Democracy: Seeding the Field

Author(s): Ron Levy

Election law scholarship has been slow to take note of the deliberative turn in political theory. Aiming to remedy this omission, a special symposium issue (12:4, 2013) of the Election Law Journal recently featured eleven contributions toward an incipient “law of deliberative democracy” subfield of research in election law. The issue included works from scholars of politics (James Fishkin, Lisa Hill and Dennis Thompson) and law (Yasmin Dawood, James Gardner, Paul Kildea, Graeme Orr, Joo-Cheong Tham, Stephen Tierney and Jacob Rowbottom). Contributors initially aired and discussed ideas - including positions sceptical of deliberative democratic projects - in workshops at New York University and King’s College London in April 2013.

In this introduction to the symposium I provide theoretical context and map out where the various contributions fit among key emerging debates in the law of deliberative democracy. Throughout, I argue that we cannot understand the conditions for effective deliberative democracy without considering the roles of election law. Election law is a pervasive and distinctive element of deliberative democracy’s institutional backdrop. Yet deliberation still enjoys too little normative weight in studies of election law, in comparison with libertarian, egalitarian and other sources of legal reasoning.

Initially I identify three reasons why election law may be unable appreciably to set conditions for deliberative democracy: (1) the accommodation problem: that “accommodative” (win-win) reasoning in deliberative democracy may clash with law’s focus on balancing (zero-sum); (2) the elite problem: that legal elites may be unusually hostile to deliberative democratic projects; and (3) the performative problem: that election law’s underlying assumptions promote partisanship rather than deliberation. However, I conclude by identifying provisional solutions to each of these difficulties.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Tough Love

Tough Love: Professional Regulation of Lawyer Dishonesty

Author(s):

Regulating lawyer dishonesty is a key focus of professional misconduct cases in most jurisdictions. And rightly so. In any legal system aimed at the just resolution of disputes between citizens, it is essential that lawyers’ words and behaviour can be relied upon by the courts, clients, other lawyers and the public. Yet research into seven years of disciplinary cases in New South Wales (NSW), Australia suggests that only a narrow range of dishonest conduct is actioned, often with harsh results for the practitioners involved. Research outlined in this article shows that 65% of the cases decided in this jurisdiction between 2004-2010 involved findings of practitioner dishonesty, 80% of the practitioners involved in those cases were disbarred and 89% of the total number of lawyers disciplined worked as solo and small firm practitioners.

The Australian research reported in this article may be emblematic of similar issues that occur in the regulation of lawyer dishonesty in both the United States and Canada. It is therefore argued that, for disciplinary cases to be seen as legitimate and just, it is important for the profession and regulators to consider the way dishonesty is being characterized and the harshness of the penalties imposed. When these questions are asked in the Australian context, the research suggests there is a tendency to treat small and sole firm practitioners particularly harshly even where small instances of dishonesty are involved. In addition, the dominant regulatory approach is still to link dishonesty with poor character, a connection that is unsupported by empirical research in psychology. Finally, there appears to be limited appreciation by regulatory authorities of the links between dishonesty, stress and psychological conditions.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Legal Education, Private Law, Regulatory Law and Policy

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

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

Author(s):

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.

Read on SSRN

Centre: CLAH

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

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