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.

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. 

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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

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: CIPL

Research theme:

Challenges to Australia’s National Health Policy from Trade and Investment Agreements

Author(s):

Recent federal trade policy commitments could protect Australia’s tobacco control legislation and the Pharmaceutical Benefits Scheme in the Trans-Pacific Partnership Agreement negotiations.

Read on SSRN

Centre: CIPL

Research theme:

Dan Bodansky's 'Art and Craft of International Environmental Law'

Author(s): Donald Anton

This is a review of Daniel Bodansky's "The Art and Craft of International Environmental Law." The piece considers Bodansky's idea of International Environmental Law as a 30% solution to international environmental problems in the context of: 1) norm proliferation and continuing environmental decline, and 2) the concept of sustainable development as an obstacle to environmental improvement.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

Treaty Congestion

'Treaty Congestion' in International Environmental Law

Author(s): Donald Anton

This is an extended version of a contribution to the forthcoming Routledge Handbook of International Environmental Law. It focuses on the phenomenon of "treaty congestion," which commentators have tied to the rapid expansion of international environmental law in recent decades. Arguably the number of international instruments has hampered implementation. In particular, the lack of coordination in the face of proliferation and the lack of capacity challenge the operationalizing international environmental obligation by necessary and sufficient laws, policies, programs and plans. This contribution considers the issue of treaty congestion, and makes suggestions for how it might be overcome.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law, International Law

Still this Endangered Planet

Still this Endangered Planet

Author(s): Donald Anton

This paper was presented at the 106th Annual Meeting of the American Society of International Law on a panel considering the 2012 U.N. Conference on Sustainable Development. The paper provides a critical and provocative analysis of how the concept of sustainable development has become beholden to economic growth and, on this account, why it is unfit to continue to serve as the major organizing principle for global environmental protection.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

Comparative Perspective

A Comparative Perspective on Australian End-of-Life Law

Author(s):

The Italian Eluana Englaro Case and the related Italian Bill “Dispositions in matter of therapeutic alliance, informed consent and advance directives” highlight a number of significant points of divergence with regulation of end-of-life decision-making and advance directives under Australian state and federal law. This chapter aims to provide a comparative overview of Australian case law and statutory provisions in this area. It discusses these differences in the context of a view that regardless of the deontological importance of respecting individual patient rights in end-of-life decision-making, the financial constraints upon governments to care for an ageing population will increasingly provide consequentialist interest not only in facilitating advance directives that allow technically ‘futile’ treatment to be withdrawn or withheld from incompetent patients, but in permitting physician assisted suicide when requested by competent, non-depressed patients with a terminal illness who have already received reasonable palliative care.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Future Perspectives on Solar Fuels

Future Perspectives on Solar Fuels

Author(s):

Central to the future perspective presented here is nanotechnological construction with enhanced efficiency of each aspect of the natural photosynthetic process into units capable of inexpensive mass production for domestic use. This involves a vision of artificial photosynthesis research that incorporates the utilization of genetically-engineered (or even wholly synthetic) organisms undertaking photosynthesis, but emphasizes worldwide household utilization of structures that are chiefly a matter of engineered nanochemistry.

The challenge of how to promptly develop nanotechnologically-based artificial photosynthesis is explored through a future perspective on the scientific challenges involved in three key areas covered: Light Capture (including light-harvesting complexes, synthetic pigment arrays and dye-sensitive solar cells), Photochemical Conversion (including structure of the photosynthetic reaction centres, optimizing photochemical quantum yield) and Energy Storage (including optimization of photosynthetic water oxidation and catalysis). As the world’s human population rises, global artificial photosynthesis (GAP) (global solar fuels (GSF)) may take the pressure off natural photosynthesis as our primary (and water-intensive) source of food and fuel.

The paper concludes by considering how inequalities and injustices in the use of solar fuel technology can best be avoided or minimized. It extends the analysis to scope the governance, legal and regulatory obstacles likely to confront the future research and development of solar fuels. In particular, it presents the case for a macro-science GAP or GSF Project designed not only to accelerate the pace of such research to meet the urgency of climate change and human energy and food needs, but to do so in a manner coherent with equity and environmental sustainability.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law

Towards Global Artificial Photosynthesis

Towards Global Artificial Photosynthesis (Global Solar Fuels): Energy, Nanochemistry and Governance

Author(s):

This special open access edition of the Australian Journal of Chemistry represents a collection of papers from the first international conference dedicated to creating a Global Artificial Photosynthesis (GAP) or Global Solar Fuels (GSF) project, held at Lord Howe Island on 14–18 August 2011. Conceived and coordinated by the author of this article, the conference had endorsement from theUNESCONatural Science Sector and was an official event of the UNESCO 2011 International Year of Chemistry. The Australian federal Department of Industry, Innovation, Science and Research (DIISR, as it was then called) contributed to the funding, as did the Australian National University (ANU) College of Medicine, Biology and the Environment and ANU College of Law. Speakers included over 50 national and international experts in various aspects of artificial photosynthesis, as well as related areas including photovoltaics, hydrogen fuel cells, quantum coherence in electron transfer, and international governance systems.

The GAP conference uniquely focused on the governance as well as the scientific challenges for global artificial photosynthesis.The vision of a world powered by solar fuel is likely to involve much more than large coastal plants splitting seawater using sunlight captured in desert areas to produce carbon-neutral hydrogen-based fuels and fresh water. If rolled out globally as a cheap consumer and development aid for ‘off-grid’ local and domestic energy, fertilizer and food product, global artificial photosynthesis could replace policy models of corporate globalization and ever-increasing economic growth predicated on preparation for war and use of non-renewable and polluting energy sources.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law

The Future of Feed-In Tariffs

The Future of Feed-In Tariffs: Capacity Caps, Scheme Closures and Looming Grid Parity

Author(s): James Prest

This article examines recent developments in feed-in tariff (FIT) law for solar photovoltaic (PV) electricity generation in selected jurisdictions. In particular, legal and policy issues surrounding capacity capping and closure of FIT schemes to new entrants are examined at a conceptual level. The need for downward adjustment of FIT rates is discussed. The application of capacity caps in Australia, Spain, France, Czech Republic and the UK is examined. Characteristics and examples of best-practice and worst-practice amendment of FIT laws for solar PV are identified. It is found that caps are a blunt instrument for constraining the impact of FIT on electricity prices. The alternative of tariff degression is discussed.

Read on SSRN

Centre: CIPL

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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