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.

Solving Problems

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

Author(s): Elizabeth Curran

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

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 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): Kath Hall

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

Strategic Privatisation

Strategic Privatisation of Transnational Anti-Corruption Regulation

Author(s): Kath Hall

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 Expansion of Global Law Firms in Australia and Asia

The Expansion of Global Law Firms in Australia and Asia

Author(s): Kath Hall

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

‘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

Rothwell, The Law of the Sea

The law of the sea and the polar regions: Interactions between global and regional regimes

Editor(s): Donald Rothwell, Erik J. Molenaar, Alex G Oude Elferink

The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes analyzes the contemporary Law of the Sea and related areas of international law in Antarctica and the Arctic, with a particular focus upon the interaction of global and regional regimes. The global component of the international law of the sea - principally the United Nations Convention on the Law of the Sea - applies to the entire marine domain in both polar regions but explicitly requires regional implementation or acknowledges its usefulness. This volume  examines regional regimes for the Arctic and Antarctic on science, maritime security, fisheries and shipping by means of common research questions; thus enabling an overall synthesis and identification of trends, differences and similarities.

Order your copy online

Centre: CIPL

Research theme: Environmental Law, International Law

Collins, Intellectual Property

LexisNexis Study Guide: Intellectual Property Law, 2nd Edition

Author(s): Craig Collins, Heather Forrest

The LexisNexis Study Guide series is designed to assist students with the foundations for effective, systematic exam preparation and revision. Written by Craig Collins and Heather Forrest, the Intellectual Property study guide clearly identifies and explains the often difficult topics that are relevant to intellectual property law. The most important and recent cases are summarised to consolidate practical understanding of the theoretical concepts. 

Order your copy online

Centre: CCL

Research theme: Administrative Law, Private Law

The Challenges of Measuring Outcomes – Examining Quality, Responsiveness and Legal Professionalism As a Way Forward (Presentation Slides)

Author(s): Elizabeth Curran

Dr. Curran discusses her research evaluation of Legal Aid ACT where she was asked to not only measure the quality of the legal services delivered but also to grapple with the vexed measurement of outcomes. In this paper Dr. Curran outlines briefly the approach to the evaluation, the lessons and some of the key findings around how to measure quality, outcomes and effectiveness of legal services delivery. 

Read on SSRN

Centre:

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

Chisholm, Understanding Law

Understanding law: an introduction to Australia's legal system (8th ed)

Author(s): Richard Chisholm, Garth Nettheim

Written by highly qualified authors, the direct, clear and often humorous style of this book will help readers understand how the law relates to real issues and controversies. The institutions and sources of law in our legal system are clearly explained, including the roles of lawyers, the courts and the legislature. Illustrative examples and a discussion of actual cases enable students and other citizens to engage with topics such as historical basis of Australian law, Australian law and international law, human rights, procedural fairness and the notions of law and morality. New stimulus questions and activities included in this 8th edition invite the reader to consider the interrelationship of law, tradition and social values. Understanding Law is a perfect introduction to the law for students engaging with legal studies and for other academic disciplines at tertiary and senior secondary levels. It is an ideal starting point for any Australian interested in learning more about their legal system.

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Centre:

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Environmental Law, Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice

Book cover

Control of Government Action: Text, Cases and Commentary

Author(s): Robin Creyke, John McMillan

This book displays the breadth and diversity of Australian administrative law. The different role played by courts, tribunals, ombudsmen and other review bodies is comprehensively covered. The criteria applied by those bodies in reviewing the legality and propriety of government administrative are examined in an integrated manner that best shows the options available to an aggrieved person. Public law concepts and theories that influence government decision making and administrative review are also covered.

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Centre: CCL

Research theme: Administrative Law

Book cover

Privatising the Public University: The Case of Law

Author(s): Margaret Thornton

Privatising the Public University: The Case of Law is the first full-length critical study examining the impact of the dramatic reforms that have swept through universities over the last two decades. Drawing on extensive research and interviews in Australia, New Zealand, the UK and Canada, Margaret Thornton considers the impact of the market on students, academics and law schools, documenting how both the curriculum and pedagogical methods have changed. If the passing of the idea of the university is rued, concern usually focuses on the humanities and the natural sciences. In this respect, law has been regarded as privileged because of the virtually unstoppable demand for law places and the willingness of students to pay high fees. And, as this book shows, it is commercial and instrumental forms of legal training that are now favoured, whilst the humanistic, critical, theoretical and social justice aspects of legal knowledge have been corroded. Privatising the Public University will be of considerable interest to legal academics; but it will also be invaluable work for anyone interested in the future of higher education, or, more generally, in the corporatization of culture.

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Centre:

Research theme: Regulatory Law and Policy

Book cover

Nanotechnology for a Sustainable World: Global Artificial Photosynthesis as Nanotechnology's Moral Culmination

Author(s):

Does humanity have a moral obligation to emphasise nanotechnology’s role in addressing the critical public health and environmental problems of our age? This well-crafted book explores this idea by analysing the prospects for a macroscience nanotechnology-for-environmental sustainability project in areas such as food, water and energy supply, medicine, healthcare, peace and security. Developing and applying an innovative science-based view of natural law underpinning a global social contract, it considers some of the key scientific and governance challenges such a global project may face.

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Centre: CLAH

Research theme:

Re Edwards: Who Owns a Dead Man’s Sperm?

Author(s):

Re Edwards (2011) 4 ASTLR 392; [2011] NSWSC 478 adds to the small line of cases to have considered whether a woman can not only require medical staff to remove sperm from her dead male partner, but whether she is justified in terms of law and international human rights to use it to create children. In this case a Justice of the New South Wales Supreme Court framed the issue as “what right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child?” He did so, despite the manifest ambiguity and difficulty in characterising the legislative rights in this case, without referring to substantive human rights obligations under international Conventions to which Australia is a ratifying party, particularly Art 10 of the United Nations International Covenant on Economic, Social and Cultural Rights and Art 23 of the United Nations International Covenant on Civil and Political Rights. Technological advances such as those creating the possibility of capturing a dead person’s sperm by electro-ejaculation and creating children by subjecting it to intracytoplasmic sperm injection in connection with in vitro fertilisation have altered the balance of individual and social interests in deciding who should be regarded as owning a dead man’s sperm and how that relates to basic common law rights of bodily inviolability without free consent. It is to be regretted that in jurisdictions lacking relevant constitutional human rights, or legislation requiring coherence with international human rights, judges do not avail themselves in cases of statutory ambiguity of interpretative insights to be gained from legally binding human rights treaties to which Australia is a party.

Read on SSRN

Centre: CLAH

Research theme:

'A Literature Review: Examining the Literature on How to Measure the 'Successful Outcomes': Quality, Effectiveness and Efficiency of Legal Assistance Services'

Author(s): Elizabeth Curran

This is a literature review for the Attorney-General’s Department. The brief was as follows.

This literature review will examine research, studies, reports, reviews and evaluation and other material both nationally and internationally around legal assistance service evaluations on the following:

'Successful Outcome'

Quality

Efficiency

Effectiveness

This Literature Review has examined a significant number of research, reports, evaluations, reviews, academic writing, studies and submissions. Some of the key lessons that these documents reveal are detailed in this Executive Summary. Some conclusions and their basis are summarized in the section entitled, 'Conclusion – An Overview of the Findings of this Literature Review'.

Some documents were provided directly to the researcher and to the Attorney-General’s Department by the Legal Assistance Sector but have not been included in this Literature Review as they were outside its scope. However, many are useful and are discussed in this Literature Review.

This Literature Review highlights that legal assistance work is not only complex but that it is also complicated. Forty-seven international studies and ninety-one national studies were considered in the course of the conduct of this literature review.

The selection criteria for determining the 'usefulness' of the reports/reviews/evaluations/ studies was as follows:

•Written in the last decade.

•The Document/Study examines outcome, quality, effectiveness and efficiency or a combination of these considerations.

•The study sets out a clear question to be answered and the methodological approach was relevant to being able to answer the question asked.

•The method for extracting information or data was effective and relevant to the information sought.

•The questions asked of participants in the instruments used were relevant.

•The data collected was sufficiently clear in illiciting the information sought.

•Given the complicated and complex nature and diversity of the legal services and the clients served, the methodology was likely to reveal the reasons behind the responses or approach that the service adopted in terms of the considerations listed above.

•A number of approaches were taken to verify, complement and unpack the reasons for the answer and included a blend of quantitative and qualitative data rather than reliance on quantitative data or one method.

•The approach taken is relevant and of assistance in the context of the NPA and the Attorney-General’s ‘Strategic Framework on Access to Justice in the Federal Civil Justice System’ , the COAG Reform Agenda and to social inclusion and Indigenous disadvantage.

Significant difficulties are identified in much of the domestic and international literature in the measurement of outcome/results, quality, efficiency and effectiveness.

The literature domestically and internationally, identifies the lack of a common language with which to articulate results, the lack of a framework in which to capture them and the difficulties in being able to measure and prove success. Where such results based measurement exists it will often need to be descriptive, subjective and there is a risk that cannot be avoided, of its being anecdotal and vague.

Each program must be first understood to be able to inform how to identify and define outcomes and measure these and ensure adaptive learning and adaptive management processes rather than these being fixed and remote from the realities of practice.

Any approach must be able to adapt and incorporate changing realities and demands on the services that are being examined.

There is no one way which can make it easy to achieve a successful outcome. Good practice informed by good training, cultural awareness, sensitivity, adaptability and flexibility are key factors in effectively reaching and targeting vulnerable and disadvantaged groups. Legal assistance services operate at different levels. Within a legal assistance service different objectives and intentions can sit behind each program. Therefore, they cannot be measured as a 'lump' without first understanding the very nature, diverse ways of engaging that are required to target different client groups, complexity, layers and imperative and funding requirements that drive each of the many parts.

Read on SSRN

Centre:

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

Making Sense of 'Riot': The Fragile Legitimacy of Police Powers and Public Order Offences in an Intervention

Author(s): Mary Spiers Williams

This paper examines the legitimacy of public order offences in a contested intercultural space.

Other scholarship has exposed how public order offences are best understood, not as offences that are legitimate in themselves, but as a mechanism by which police can lawfully (but not necessarily 'fairly' or 'justly') increase their powers; this is to facilitate the 'maintenance of the peace' and to pre-empt crimes.

This paper instead considers more fundamental issues on which public order policing and laws are founded. It challenges common sense assumptions what is 'public', 'offensive' or 'disordered'. Even when considered within a Western cultural frame, these can be seen to be highly constructed and culturally contingent concepts. These concepts become much more unstable with they are transplanted to a liminal or frontier space, such as a remote Aboriginal community in the Northern Territory of Australia. In this highly contested space, the common sense appeal of these concepts is destabilised, and their legitimacy becomes tenuous, particularly for those who are the new objects of such ideas.

Since the commencement by the Australian Federal Government of a dramatic and controversial intervention into the Aboriginal affairs of the NT, police have been authorised to exercise unprecedented powers with respect to Aboriginal people and use an array of offences that have facilitated the suppression of resistance to Intervention and cultural assimilation, and to finally secure control of this space in which Aboriginal people have continued to exercise domain as Aboriginal people, despite Australia’s ongoing colonial project.

By reference to a case study in which an attempted Aboriginal dispute resolution process is reconstructed as a ‘riot’, this paper explores the impact of the attempted suppression of cultural practices using public order offences, and examines the early impacts, which include: increased political resistance to Intervention through deliberate flaunting of public order offences, lawlessness (where successful suppression of tribal practices results not in embrasure of mainstream values and practices but instead creates a vacuum where no social constraints operate), an exacerbation of the cycle of criminalisation and victimisation of Aboriginal people, and the possibility that tribal dispute resolution processes are withdrawing to spaces where Aboriginal people remain sovereign.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law

Making Sense of 'Riot': The Fragile Legitimacy of Police Powers and Public Order Offences in an Intervention

Author(s): Mary Spiers Williams

This paper examines the legitimacy of public order offences in a contested intercultural space.

Other scholarship has exposed how public order offences are best understood, not as offences that are legitimate in themselves, but as a mechanism by which police can lawfully (but not necessarily 'fairly' or 'justly') increase their powers; this is to facilitate the 'maintenance of the peace' and to pre-empt crimes.

This paper instead considers more fundamental issues on which public order policing and laws are founded. It challenges common sense assumptions what is 'public', 'offensive' or 'disordered'. Even when considered within a Western cultural frame, these can be seen to be highly constructed and culturally contingent concepts. These concepts become much more unstable with they are transplanted to a liminal or frontier space, such as a remote Aboriginal community in the Northern Territory of Australia. In this highly contested space, the common sense appeal of these concepts is destabilised, and their legitimacy becomes tenuous, particularly for those who are the new objects of such ideas.

Since the commencement by the Australian Federal Government of a dramatic and controversial intervention into the Aboriginal affairs of the NT, police have been authorised to exercise unprecedented powers with respect to Aboriginal people and use an array of offences that have facilitated the suppression of resistance to Intervention and cultural assimilation, and to finally secure control of this space in which Aboriginal people have continued to exercise domain as Aboriginal people, despite Australia’s ongoing colonial project.

By reference to a case study in which an attempted Aboriginal dispute resolution process is reconstructed as a ‘riot’, this paper explores the impact of the attempted suppression of cultural practices using public order offences, and examines the early impacts, which include: increased political resistance to Intervention through deliberate flaunting of public order offences, lawlessness (where successful suppression of tribal practices results not in embrasure of mainstream values and practices but instead creates a vacuum where no social constraints operate), an exacerbation of the cycle of criminalisation and victimisation of Aboriginal people, and the possibility that tribal dispute resolution processes are withdrawing to spaces where Aboriginal people remain sovereign.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law

A Commonwealth Pro-Disclosure Culture - Implications and Opportunities

Author(s): James Popple

Reform of Commonwealth freedom of information legislation has entrenched a pro-disclosure culture. New requirements for proactive publication are enhancing community access to, and engagement with, government information. Robust information management systems are critical if government is to meet its obligations to give access to documents and publish information, while protecting personal privacy.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

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