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.

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Environmental Law

Author(s):

This text highlights the facts, issue and decision in each case so that the principles can be readily understood and memorised and trends in the development of case law on environmental law can be readily identified. The cases have been selected to align with current teaching in this area and their national focus makes the book suitable for all Australian jurisdictions. An excellent study and revision resource for students, this book is a great quick reference for anyone wanting to understand the case law in this area.

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Centre:

Research theme: Environmental Law

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Kangaroo Courts and the Rule of Law - the Legacy of Modernism

Author(s): Desmond Manderson

Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-configured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and MIkhail Bakhtin, and D.H. Lawrence's strange and misunderstood novel Kangaroo (1923).

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Centre: CLAH

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

Bailey, Human Rights Law

Human Rights Law

Author(s):

This book provides a concise outline of the principles of human rights law within undergraduate law.  Written in clear, straight-forward language, the author explains the principles, and highlights key cases and legislative provisions.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Spender, Civil Procedure

Civil Procedure - Commentary and Materials (5th edition)

Author(s): Peta Spender, Stephen Colbran, Sheryl Jackson, Roger Douglas, Tania Penovic

Civil Procedure Commentary & Materials provides students and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Civil Procedure Commentary & Materials combines a wealth of primary and secondary materials from all jurisdictions. The common law is clearly set out, together with extensive practical commentary. Each chapter features in-depth questions and notes together with lists of further reading to aid and extend understanding. Civil Procedure Commentary & Materials examines and discusses each substantive and procedural step in the trial process.

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Centre: CCL

Research theme: Private Law

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Animal Law in Australia: An Integrated Approach

Author(s):

Written in a clear, engaging and accessible style, it is suitable as a teaching text for Animal Law courses, and for the wider legal community and general reader interested in animal welfare. This is the first Australian text to offer a truly integrated and comprehensive coverage of animal law issues. It combines the philosophical and ethical dimensions to animal law with the practical, legal and regulatory frameworks governing animals in Australia. It features a comprehensive, balanced coverage of animal law issues in Australia ensures readers will gain a solid understanding of the wider regulatory regime in Australia. Each chapter integrates the philosophical/ethical discussion with practical issues and the legal context to demonstrate the relationship between these dimensions, allowing readers to gain an understanding of the background driving current regulatory regimes. Chapters include clear learning objectives, stimulus questions and further reading to facilitate depth and breadth of learning for both students and the general reader.

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Centre: CCL

Research theme: Administrative Law, Private Law

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Statutory Interpretation in Australia (7th ed)

Author(s): Dennis Pearce, Robert Stanley Geddes

Statutory Interpretation in Australia is a comprehensive, annotated, synopsis of statutory interpretation principles in all the Australian jurisdictions. This seventh edition is an update to 1 February 2011. The work is a detailed reference as to a multiplicity of statutory interpretation issues. This well-researched, new edition includes recent updates of case law and legislation, commentary on the “principle of equity”, and a discussion of the Human Rights Acts of Victoria and the Australian Capital Territory. This text is a remarkably inclusive guide to statutory interpretation and is divided into 12 chapters. These chapters include examination of different approaches to legislative interpretation, extrinsic and intrinsic aids to interpretation, and individual consideration for interpreting current acts, repealed or amending acts and codifying acts respectively. The book concludes by considering legislation operating retrospectively and various drafting conventions and expressions. 

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Centre: CIPL

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

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Administrative Law (5th ed)

Author(s): Peter Cane

The fifth edition of this key student text provides an accessible and stimulating account of the legal framework of public administration. The new edition has been thoroughly reorganized to reflect the modern transformation in the perception of the nature and function of administrative law.

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Centre: CIPL

Research theme: Administrative Law

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The Law of Torts in Australia (5th edition)

Author(s): Peter Cane, Kit Barker, Mark Lunney, Francis Trindade

The Law of Torts in Australia, Fifth Edition, remains the book to turn to for authoritative and comprehensive discussion of tort law from a distinctively Australian perspective. The content of this new edition has been restructured and navigation improved to make this a more student-friendly text. It includes discussion of the major amendment of the Trade Practices Act 1974, which produced the Competition and Consumer Act 2010 and the Australian Consumer Law.  There are also separate chapters on duty of care in negligence, and causation and remoteness of damage have been reinstated, and the discussion of economic loss in the duty of care chapter has been radically reorganised and significantly rewritten.

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Centre: CIPL

Research theme: Administrative Law, Criminal Law

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Annotated Safety, Rehabilitation and Compensation Act 1988 (9th ed)

Author(s): , Peter Sutherland, John Oman Ballard, Allan Anforth

The 9th edition of this well-known reference book provides the full text of the Act and comprehensive annotations, organised on a section by section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal. The book includes a list of all instruments gazetted under the Act or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act, Defence Determination 2000/1 and the Military Rehabilitation and Compensation Act 2004. Canberra barrister Allan Anforth contributes an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

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Centre: CIPL

Research theme: Administrative Law, Private Law

Global Artificial Photosynthesis Project: A Scientific and Legal Introduction

Author(s):

With the global human population set to exceed 10 billion by 2050, its collective energy consumption to rise from 400 to over 500 EJ/yr and with the natural environment under increasing pressure from these sources as well as from anthropogenic climate change, political solutions such as the creation of an efficient carbon price and trading scheme may arrive too late. In this context, the scientific community is exploring technological remedies. Central to these options is artificial photosynthesis – the creation, particularly through nanotechnology, of devices capable to doing what plants have done for millions of years – transforming sunlight, water and carbon dioxide into food and fuel. This article argues that a Global Artificial Photosynthesis (GAP) project can raise the public profile and encourage the pace, complexity and funding of scientific collaborations in artificial photosynthesis research. The legal structure of a GAP project will be critical to prevent issues such as state sovereignty over energy and food resources and corporate intellectual monopoly privileges unduly inhibiting the important contribution of artificial photosynthesis to global public health and environmental sustainability. The article presents an introduction to the scientific and legal concepts behind a GAP project.

Read on SSRN

Centre: CIPL

Research theme:

Will International Trade Law Promote or Inhibit Global Artificial Photosynthesis?

Author(s):

Artificial photosynthesis (AP) is an area of well-advanced research involving large international groups at the cutting edge of synthetic biology and nanotechnology. In simple terms it offers to produce a cheap source of hydrogen for fuel through using sunlight to split water, as well as making basic starches by a process involving absorption of carbon dioxide via the enzyme RuBisCO. As the proliferating numbers of university-based research teams working in this area begin to combine, there will be a natural escalation of the expected time for a global roll-out of AP domestic and international devices. Policy attention will then turn to whether international governance systems (particularly international trade law) will assist or hinder this process. The stakes are high – global AP offers a solution not only to human energy, food and water needs (burning hydrogen fuel creates pure water) but to the rising atmospheric carbon dioxide levels linked to climate change problems. This paper begins to examine how governments seeking to promote and subsidize AP products may interact with international trade and investment law. It involves analysis in this context of WTO multilaterals and U.S. bilaterals in relation to intellectual monopoly privileges (IMPs), 'Doha-minus' provisions, definitions of technological 'innovation', non-violation nullification of benefits requirements, textual inhibitions on science-based cost-effectiveness assessment of new technologies, as well as investor-state dispute settlement provisions.

Read on SSRN

Centre: CIPL

Research theme:

Forests Law

Author(s): James Prest

This Chapter provides an overview of the law applicable to forests and forestry in the Australian State of New South Wales (NSW). It provides a detailed explanation in plain english of the applicable Federal (Commonwealth) law and of the applicable NSW law. Federal topics covered include: Regional Forest Agreements under federal law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), international law applicable to forest management. NSW topics addressed include regulation on public land under Forestry Act 1916 and Forestry and National Parks Estate Act 1998, functions of the Forestry Commission, State Forests, other Crown timber lands, Timber reserves, revocation of State Forests, Forest management plans and zoning, NSW state forest agreements and integrated forestry operations approvals, modification of third party standing rules in regions subject to an IFOA, harvesting rules and offences, the Forest Practices Code, as well as other forms of Permits and Forest leases, including those relating to hunting in State Forests. The topic of plantation forestry and its regulation under the Plantations and Reafforestation Act 1999 and Code are addressed in detail. Law relating to water pollution and forestry, the use of chemicals in forests, and criminal and civil enforcement is also addressed. Questions of law applicable to carbon sequestration in forests and plantation are explained. The Chapter the explains the laws applicable to forestry on privately held lands - including application of the Native Vegetation Act 2003, the PNF Code of Practice, applicable local government law, water pollution law and profits a prendre. The chapter closes with discussion of Forestry certification schemes and questions of eligibility of forest biomass as feedstock for electricity generation under NSW and Commonwealth laws.

Read on SSRN

Centre: CIPL

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

Condliff V North Staffordshire Primary Care Trust: Can Human Rights Redress Inequities in United Kingdom and Australian Cost-Containment-Driven Health Care Reforms?

Author(s):

A recent case from the English Court of Appeal (R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, concerning denial by a regional health care rationing committee of laparoscopic gastric bypass surgery for morbid obesity) demonstrates the problems of attempting to rely post hoc on human rights protections to ameliorate inequities in health care reforms that emphasise institutional budgets rather than universal access. This column analyses the complexities of such an approach in relation to recent policy debates and legislative reform of the health systems in the United Kingdom and Australia. Enforceable human rights, such as those available in the United Kingdom to the patient Tom Condliff, appear insufficient to adequately redress issues of inequity promoted by such “reforms”. Equity may fare even worse under Australian cost-containment health care reforms, given the absence of relevant enforceable human rights in that jurisdiction.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Global Artificial Photosynthesis Project: A Scientific and Legal Introduction

Author(s):

With the global human population set to exceed 10 billion by 2050, its collective energy consumption to rise from 400 to over 500 EJ/yr and with the natural environment under increasing pressure from these sources as well as from anthropogenic climate change, political solutions such as the creation of an efficient carbon price and trading scheme may arrive too late. In this context, the scientific community is exploring technological remedies. Central to these options is artificial photosynthesis – the creation, particularly through nanotechnology, of devices capable to doing what plants have done for millions of years – transforming sunlight, water and carbon dioxide into food and fuel. This article argues that a Global Artificial Photosynthesis (GAP) project can raise the public profile and encourage the pace, complexity and funding of scientific collaborations in artificial photosynthesis research. The legal structure of a GAP project will be critical to prevent issues such as state sovereignty over energy and food resources and corporate intellectual monopoly privileges unduly inhibiting the important contribution of artificial photosynthesis to global public health and environmental sustainability. The article presents an introduction to the scientific and legal concepts behind a GAP project.

Read on SSRN

Centre: CIPL

Research theme:

Will International Trade Law Promote or Inhibit Global Artificial Photosynthesis?

Author(s):

Artificial photosynthesis (AP) is an area of well-advanced research involving large international groups at the cutting edge of synthetic biology and nanotechnology. In simple terms it offers to produce a cheap source of hydrogen for fuel through using sunlight to split water, as well as making basic starches by a process involving absorption of carbon dioxide via the enzyme RuBisCO. As the proliferating numbers of university-based research teams working in this area begin to combine, there will be a natural escalation of the expected time for a global roll-out of AP domestic and international devices. Policy attention will then turn to whether international governance systems (particularly international trade law) will assist or hinder this process. The stakes are high – global AP offers a solution not only to human energy, food and water needs (burning hydrogen fuel creates pure water) but to the rising atmospheric carbon dioxide levels linked to climate change problems. This paper begins to examine how governments seeking to promote and subsidize AP products may interact with international trade and investment law. It involves analysis in this context of WTO multilaterals and U.S. bilaterals in relation to intellectual monopoly privileges (IMPs), 'Doha-minus' provisions, definitions of technological 'innovation', non-violation nullification of benefits requirements, textual inhibitions on science-based cost-effectiveness assessment of new technologies, as well as investor-state dispute settlement provisions.

Read on SSRN

Centre: CIPL

Research theme: International Law

Freedom of Information Applications as An 'Evergreening' Tactic

Author(s):

A recent decision of the Federal Court of Australia illustrates how patent-holding pharmaceutical companies are attempting to use Australia’s Freedom of Information Act 1982 (Cth) to force Australian safety, quality and efficacy regulators to disclose whether generic competitors are attempting to enter the market. In Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd (2010) 191 FCR 573; [2010] FCA 1442 a single judge of the Federal Court overturned a decision of the Administrative Appeals Tribunal (AAT) that would have compelled the Australian Therapeutic Goods Administration (TGA) to reveal whether they were in possession of an application to register generic versions of two iNova products: imiquimod and phentermine.

In its justification to the AAT for refusing to confirm or deny the existence of any application, the TGA argued that to reveal the existence of such a document would prejudice the proper administration of the National Health Act 1953 (Cth) as it could compromise the listing of a generic on the Pharmaceutical Benefits Scheme. The AAT failed to appreciate the extent to which this revelation to a competitor would have undercut 2004 amendments to the Therapeutic Goods Act 1989 (Cth) that provided penalties for evergreening tactics involving TGA notifications to drug patent-holders and 2006 amendments to the Patents Act 1990 (Cth) which protected the right of generic manufacturers to “springboard”. The decision of the Federal Court is one of the first to explore the use of freedom of information legislation by patent-holders as a potential “evergreening” technique to prolong royalties by marginalising generic competition. Because of the significant amounts of money involved in ensuring rapid market entry of low-cost generic products, the issue has considerable public health significance.

Read on SSRN

Centre: CCL

Research theme:

What Makes a Real Man? Gender Norms and Western Australian v. AH [2010] WASCA 172

Author(s):

In Western Australia v. AH [2010] WASCA 172 the Western Australian Court of Appeal denied two female-to-male applicants for gender reassignment certificates the right to be legally recognised as men. In so doing, an opportunity was lost for Australia to be one of the first jurisdictions in the world to legally provide a reassignment of gender without requiring permanent sterilising surgery. This column examines not only the legal issues considered in the case but the broader ethical and human rights issues associated with denying female-to-male gender reassignment applicants who have not undergone a permanent sterilisation or genitalia alteration procedure, the right to be identified as males.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

The Trans-Pacific Partnership Agreement: Challenges for Australian Health and Medicine Policies

Author(s):

Four formal rounds of Trans-Pacific Partnership Agreement (TPPA) negotiations took place in 2010 (in Melbourne, San Francisco, Peru and Brunei). They involved over 200 officials from Australia, the United States (US), New Zealand, Chile, Singapore, Brunei Darussalam, Peru and Vietnam.

Future negotiations officially are set to include three issues with public health and medicines policy implications for Australia and our region: first, ways to approach regulatory coherence and transparency, second how to benefit multinational and small-medium corporate enterprises (SMEs) and third, multilateral investor-state dispute settlement.

This article analyses the likely impact on Australia of these issues by focusing on submissions made about them to the United States Trade Representative (USTR) by influential US health and medicines corporations and lobby groups, as well as reflecting on the opportunities they present to re-shape US and regional health technology safety and cost-effectiveness regulation.

Of particular concern is that these submissions advocate investor state dispute settlement procedures that (as well as allowing Australian corporations to sue in other nations) would allow US corporations (such as those involved in pharmaceutical, alcohol, tobacco, fossil fuel or chemical production) as well as those of the other TPPA nations, to obtain damages against Australian governments through arbitral proceedings rather than domestic courts if their investments are impeded by Australian public health and environment protection legislation.

Read on SSRN

Centre: CIPL

Research theme: International Law

Making or Breaking the International Law of Transit Passage? Meeting Environmental and Safety Challenges in the Torres Strait with Compulsory Pilotage

Author(s): Donald Anton

In this presentation at the Symposium on “Safety, Security and Environmental Protection in Straits Used in International Navigation: Is International Law Meeting the Challenge?” (Istanbul, Turkey, September 9-11, 2011), I suggest that the practice of states in the Torres Strait seems to point to a developing local or special custom of compulsory pilotage (even accepting that there may be persistent objectors). Similarly, for parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the practice of compulsory pilotage may be having influence on the meaning of transit passage through the Torres Strait – and I maintain only through the Torres – under Part III of UNCLOS.

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Centre: CIPL

Research theme: International Law

Why Julian Assange May Have a Case to Answer in Australia

Why Julian Assange May Have a Case to Answer in Australia, Despite What the AFP Says (or, Why Julia Gillard Might Be Right)

Author(s): Donald Anton

Despite a finding by the Australian Federal Police that it has been unable to identify any breaches of Australian law by Julian Assange, the apparent leader of Wikileaks, we submit that such a finding is far from certain. While we are not in a position to second-guess the AFP on the strength of the evidence available, we highlight that there are matters of public record and a legal background that suggests that Assange and Wikileaks may have come close to committing an offence/s under the Australian Criminal Code Act 1995 (Cth) relating to telecommunication services.

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Centre: CIPL

Research theme: Criminal Law

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