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.

Teaching Professionalism in Legal Clinic

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, Regulatory Law and Policy

Polar Opposites

Polar Opposites: Environmental Discourses and Management in Antarctica and the Arctic

Author(s): Donald Rothwell

In 2009 the 1959 Antarctic Treaty celebrated its fiftieth anniversary. Its resilience in managing the Antarctic continent and parts of the adjacent Southern Ocean is generally seen as one of the great ‘success stories’ of contemporary international law. This is especially the case when it is considered that the treaty was negotiated during the height of the Cold War at a time when the USSR and US had significant interests in Antarctica, and that the treaty never sought to resolve simmering sovereignty tensions over parts of the continent especially those between Argentina, Chile and the United Kingdom over their competing claims to parts of the Antarctic Peninsula. Now, in the early part of the Twenty First century and notwithstanding the lack of recognition which has been granted to the seven territorial claims to the Antarctic continent, the Antarctic Treaty now includes not only the original 12 states parties, but an additional 36 states parties from varied parts of the globe, and retains its capacity to effectively manage Antarctic affairs.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law

Using Discourse Theory

Introduction: Using Discourse Theory to Untangle Public and International Environmental Law

Author(s): Kim Rubenstein

The world is talking, pondering, and strategising about the environment. Ever more of the environment has been identified, publicly contemplated, or designated for despoliation and resource extraction. Remote and ‘wild’ places like the rugged Australian Kimberley and the far reaches of North America are now subject to advanced plans for fossil fuel extraction. Environmental disasters, including fires, floods, cyclones, earthquakes and tsunami, and schemes to alleviate or prevent future human suffering from catastrophe, have occupied governmental and organisational attention. Meanwhile, concerns about environmental degradation, and in particular human-induced climate change, dominate Western media and national and international politics, and are connecting communities through conversation and localised action. The nature, breadth and extent of global responses to climate change are also points of contention between the developing and developed worlds.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Migration and Movement of Peoples

Compulsory Pilotage

Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait

Author(s): Donald Rothwell

The regulation of navigation by shipping has been one of the longest standing issues confronting the law of the sea. Once states began to assert various forms of control and regulation over their adjacent waters, the issue of regulating the passage of foreign-flagged ships needed to be addressed. While the navigational rights and freedoms of shipping is now relatively settled under both the LOSC and contemporary state practice, a counterpoint to this has gradually emerged over the past 30 years due to a growing environmental awareness by coastal states of the need for enhanced environmental protection and management of not only their waters, but also their marine environmental resources and adjacent coastal areas. One response by coastal states has been to adopt compulsory pilotage regimes under which certain ships are required to take on board pilots, or avail themselves of pilotage services, as they pass through certain waters. Pilotage has a long maritime history, and is closely connected with efforts to secure the safety of shipping and the safety of a port from wayward ships. Once pilotage is required beyond internal waters in the territorial sea of a coastal state including an international strait the LOSC imposes constraints on the coastal state regulation of foreign shipping within those waters. Those rights of the coastal state are not unilateral and must be understood in the context of not only the LOSC but also related mechanisms and frameworks, especially those dealing with ship safety and the regulation of navigation overseen by the International Maritime Organisation (IMO). This essay looks at these issues in the context of a compulsory pilotage regime that has been adopted by Australia and Papua New Guinea (PNG) for the Torres Strait, and then considers what options may be available for equivalent measures to be adopted for the Straits of Malacca and Singapore.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law

Deliberative Constitutional

Deliberative Constitutional Change in a Polarised Federation

Author(s): Ron Levy

Citizens’ Assemblies are innovative deliberative democratic processes that recommend constitutional or other key legal reforms. They are formed from 100-plus randomly-selected citizens who convene over several months to learn from experts in a particular area of public policy, and thereafter to recommend a specific law reform. In the 2010 Australian general election, the incumbent Labor government’s promise to create a Citizens’ Assembly attracted strongly unfavourable popular media responses. In contrast, this article reports empirical data showing generally high Australian levels of trust in Citizens' Assemblies and deliberative democracy. The article also engages in further analysis to search for signs that such trust varies with social demographics; marked demographic cleavages could potentially be fatal to the success of reforms. In a first set of results, the article finds surprisingly uniform trust in deliberative democracy across most demographic groups (eg, defined by age, sex, educational achievement, political party and region). However, trust in Citizens’ Assemblies, while still generally uniform, is subject to more variation, including intriguing regional, populist and other distinctions.

Read on SSRN

Centre: CIPL, DGAL

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

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

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

Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights

Author(s): Will Bateman, James Stellios

The High Court’s decision in Momcilovic v The Queen is the first to consider the compatibility of the Charter of Human Rights and Responsibilities 2006 (Vic) with ch III of the Constitution. The decision will have significant implications for the continuing effectiveness of key provisions of the Charter, the Human Rights Act 2004 (ACT) and any future federal charter of human rights. This article analyses the decision and evaluates its implications for the dialogue model of statutory human rights protection in Australia. It also considers several controversial statements concerning the principles of federal jurisdiction that arise from the decision.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law, Law and Technology, Regulatory Law and Policy

The Use of Soft Law by Australian Public Authorities: Issues and Remedies

Author(s): Greg Weeks

Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This paper will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Review Essay: The Constitutional System of Thailand: A Contextual Analysis

Author(s): Mark Nolan

Review of: Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Series: Constitutional Systems of the World). Oxford and Portland, Oregon: Hart Publishing, 2011. Pages: i-xxxv, 1-273; ISBN-10: 1841139726: ISBN-13: 978-1841139722.

Read on SSRN

Centre: CIPL, CMSL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples

‘Swearing Mary’: The Significance of the Speeches Made at Mary Gaudron's Swearing-in as a Justice of the High Court of Australia

Author(s): Heather Roberts

During the High Court of Australia’s first century, Mary Gaudron served as the first and only female member of its bench. This paper commemorates the 25th anniversary of Gaudron’s appointment to the High Court by examining the speeches made at her swearing-in ceremony, in February 1987. Largely ignored by scholars, swearing-in ceremonies provide unique insights into the history of courts and the personality and philosophy of their judges. Through the prism of Gaudron’s swearing-in ceremony, this paper showcases the significance of these occasions as a commentary on the institutional and intellectual life of the Court. In particular, Gaudron’s swearing-in ceremony tells a fascinating story of institutional and gender politics in the High Court: the legal community’s varied response to the novelty of a woman High Court Justice; Gaudron’s intricate balancing between her distinctive vision of her obligations as a mentor to women lawyers and her role as ‘one of seven’ on a collegiate bench; and the perennial tension between innovation and tradition in legal method.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Private Law

Labelling Illogic? Food Animal Welfare & the Australian Consumer Law

Author(s):

This article is intended as the first of two exploring whether, and to what extent an existing regulatory regime in the form of the new Australian Consumer Law ("the ACL") and the economic forces of informed consumer demand that it protects, can be employed to advance food animal welfare initiatives and the address practices associated with the religious slaughter of animals.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law and Religion, Private Law

Did She Consent? Law and the Media in New South Wales

Author(s): Anthony Hopkins

Legislative reform to the law of sexual assault in New South Wales in 2007 emphasises that those who wish to engage in sexual intercourse must take steps to ensure that they do so with consent. The new laws’ intent was to ensure free, voluntary and communicated consent, and to punish those who take advantage of the intoxication of their victim, or seek to hide behind their own intoxication. Further, the intent was to promote awareness and expectation with respect to acceptable consensual sexual activity. This article identifies a discord between this legislative intent and the reporting and commentary in the newsprint media which continues to focus on victim intoxication and behaviour as a matter of ‘risk’. The contention here is that until the legislative intent is reflected in the newsprint media the national conversation on sexual assault will remain impoverished, limiting the potential to focus the spotlight on perpetrators.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

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

The Use of Soft Law by Australian Public Authorities: Issues and Remedies

Author(s): Greg Weeks

Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This paper will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Rothwell, Antarctic

Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives

Editor(s): Donald Rothwell, Alan Hemmings, Karen N Scott

The Antarctic Treaty (1959) was adopted for the purpose of bringing peace and stability to Antarctica and to facilitate cooperation in scientific research conducted on and around the continent. It has now been over fifty years since the signing of the treaty, nevertheless security continues to drive and shape the laws and policy regime which governs the region. Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives assess Antarctic security from multiple legal and policy perspectives. This book reviews the existing security construct in Antarctica, critically assesses its status in the early part of the Twenty-First century and considers how Antarctic security may be viewed in both the immediate and distant future. It assesses emerging new security threats, including the impact of climate change and the issues arising from increased human traffic to Antarctica by scientists, tourists, and mariners. The authors call into question whether the existing Antarctic security construct framed around the Antarctic Treaty remains viable, or whether new Antarctic paradigms are necessary for the future governance of the region.

Order your copy online

Centre: CIPL

Research theme: International Law

Fitzpatrick, Property and Social Resilience

Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor

Author(s): , Andrew McWilliam, Susana Barnes

Peace-building in a number of contemporary contexts involves fragile states, influential customary systems and histories of land conflict arising from mass population displacement. This book is a timely response to the increased international focus on peace-building problems arising from population displacement and post-conflict state fragility. It considers the relationship between property and resilient customary systems in conflict-affected East Timor. The chapters include micro-studies of customary land and population displacement during the periods of Portuguese colonization and Indonesian military occupation. There is also analysis of the development of laws relating to customary land in independent East Timor (Timor Leste). The book fills a gap in socio-legal literature on property, custom and peace-building and is of interest to property scholars, anthropologists, and academics and practitioners in the emerging field of peace and conflict studies.

Order your copy online

Centre: LGDI

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development, Migration and Movement of Peoples

Heathcote, The ICJ and the Evolution of International Law

The ICJ and the Evolution of International Law: the enduring impact of the Corfu Channel case

Editor(s): Sarah Heathcote, Karine Bannelier, Theodore Christakis, Sarah Heathcote

In 1949 the International Court of Justice (ICJ) handed down its first judgment in the Corfu Channel Case. In diffusing an early Cold War dispute, the Court articulated a set of legal principles which continue to shape our appreciation of the international legal order. Many of the issues dealt with by the Court in 1949 remain central questions of international law, including due diligence, forcible intervention and self-help, maritime operations, navigation in international straits and the concept of elementary considerations of humanity. The Court’s decision has been cited on numerous occasions in subsequent international litigation.  In short, it was and remains a thoroughly modern decision — a landmark for international law; and one which today warrants reconsideration. Taking a critical approach, this book examines the decision’s influence on international law generally and on some fields of international law like the law of the sea and the law of international responsibility specifically.  It collects the commentary of a distinguished set of international law scholars, including four well-known international judges. 

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Centre: CIPL

Research theme: International Law

Bottomley, Law in Context

Law in Context (4th ed)

Author(s): Stephen Bottomley, Simon Bronitt

This fourth edition of Law in Context not only updates the text by reference to the latest thinking and developments in the broad area of ‘law in context’, but also introduces readers to the wider social, political and regulatory contexts of law. Bottomley and Bronitt, as in previous editions, expose readers to the multitude of contexts (some explicit, others implicit) that affect how law is made, broken and enforced by the state or individual citizens. The fundamental ideals of law – such as the Rule of Law – rest on cherished liberal values, though the authors constantly encourage readers not to accept uncritically the rhetoric of law, but to test these assumptions through empirical eyes. 

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Centre: CCL

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, International Law, Private Law, Regulatory Law and Policy

Book cover

Fault Lines in Equity

Editor(s): Pauline Ridge, Jamie Glister

Equity, the body of law developed in the English Court of Chancery, has a long and distinguished history. In the twenty-first century it continues to be an important regulator of both commercial and personal dealings, as well as informing statutory regulation. Although much equitable doctrine is settled, there remain some intractable problems that bedevil lawyers across jurisdictions. The essays in this collection employ new historical, comparative and theoretical perspectives to cast light on these fault lines in equitable doctrine and methodology.  Leading scholars and practitioners from England, Australia and New Zealand examine such contentious topics as personal and proprietary liability for breaches of equitable duties (including fiduciary duties), the creation of non-express trusts, equitable rights in insolvency, the fiduciary 'self dealing' rule, clogs on the equity of redemption, the distribution of assets on family breakdown, and the suitability of unjust enrichment analysis. The authors address specific doctrinal questions as well as the 'meta' issues of organisation and methodology, and their findings will be of value to academics and practitioners alike.

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Centre: CCL

Research theme: Private Law

Book cover

Delegated Legislation in Australia (4th ed)

Author(s): Dennis Pearce, Stephen Argument

This new edition of Delegated Legislation in Australia deals in detail with the important topic of delegated or subordinate legislation. Legislation made by various government and other bodies under the authority of an Act of Parliament exceeds in volume the legislation made by Parliaments in the form of Acts. This book is an essential guide for legislators, public officials at all levels of government, judicial officers and lawyers.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Regulatory Law and Policy

Pages

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