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.

The Australian Capital Territory and the Gungahlin Drive Freeway

The Australian Capital Territory and the Gungahlin Drive Freeway

Author(s): James Prest

Provides an account of the application of ACT and Commonwealth (i.e. federal) environmental impact assessment law, land use planning law, and nature reserves law in the case of the approval of the Gungahlin Drive Extension freeway in the ACT. This freeway was built through several prized urban bushland reserves in the ACT after a campaign to Save the Ridge and its points about the application of ACT environmental and planning laws were overriden with 'special' legislation in the form of the GDE Authorisation Act 2004. Chapter describes litigation over the freeway project in ACT and Federal Courts which was heard largely in 2004 and 2005. Questions of the subsequent reform (or regression?) of ACT law including the Planning and Development Act 2007 are considered. This case study is used as the starting point of a broader examination of defects in planning and development law in the ACT and the broader role of special legislation to facilitate major projects in Australian environmental law.

Read on SSRN

Centre: CLAH

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

Recent Developments in Australian Legal Education

Recent Developments in Australian Legal Education

Author(s):

First of all, may I congratulate Chuo University on its 125th anniversary. In the modern age, a time of rapid and relentless change, institutions of such longevity are rare. Begun in 1885 as the English Law School – Igirisu Horitsu Gakko – by 18 young attorneys and scholars led by Rokuichiro Masujima, the establishment of what is now Chuo University followed the establishment of a number of other private law schools, all responding to a perceived need to increase the legal training and professionalism of Japan’s judges and prosecutors. Given the close relationship between Japan and England at the time (despite the role of US Commodore Perry in the opening up of Japan to the world some 30 years earlier), the founders of Chuo University looked particularly to English law, and were evidently impressed by the ‘practical application’ and ‘flexibility’ of the precedent-based analogical reasoning of the common law. Historians have tended to characterise the spread of English law throughout the world in the 19th century as largely the result of colonial imposition, as in the case of India, or colonial settlement, as in the case of Australia, but the example of the founding of Chuo University reminds us that it sometimes happened by choice.

However, with the advent of the Meiji Constitution and a number of civil codes, Japanese law could not be ignored, and in 1889, the English Law School became the Tokyo College of Law – Tokyo Hogakuin – and, soon after, the first issue of what is now the Chuo Law Review – Hogaku Shipo – appeared. After a further name change in 1903 to the Tokyo University of Law – Tokyo Hogakuin Daigaku – the name of Chuo, meaning ‘middle’ or ‘central’, was adopted in 1905. I understand that there is some uncertainty about whether this was because some of the founders had attended Middle Temple in England, or because of the university’s central location, or indeed whether it reflected some concept of the middle ground in scholarship. No doubt the destruction of documentary records in the great fires of 1892, 1917 and 1923 has made definitive resolution of this question difficult.

Read on SSRN

Centre:

Research theme: Legal Education

Final Report of the Australian Capital Territory

Final Report of the Australian Capital Territory Economic, Social and Cultural Rights Research Project

Author(s):

This Report presents the findings and recommendations of a research project established to examine whether the ACT Human Rights Act 2004 (HRA) should be amended to include explicit guarantees of economic, social and cultural rights (ESCR) and, if so, what impact this was likely to have on governance in the ACT. The project was funded under the Australian Research Council Linkage Project Scheme; the academic project partners were the Regulatory Institutions Network (RegNet) in the College of Asia and the Pacific of The Australian National University and the Australian Human Rights Centre, Faculty of Law, The University of New South Wales, while the Partner Organisation was the ACT Department of Justice and Community Safety.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Nanosilver and Global Public Health

Nanosilver and Global Public Health: International Regulatory Issues

Author(s):

Silver in nanoparticle form is used extensively worldwide in hospital and general practice settings in dressings as a treatment for external wounds, burns, and ulcers. Nanosilver also is an increasingly important coating over embedded medical devices, inhibiting the development of biofilm. Nanosilver disinfectant sprays and polymer coatings are being widely promoted as protective against viral infections. Nanosilver additionally is widely used for its anti-bacterial properties in food processing and packaging, as well as consumer products used for domestic cleaning and clothing.

This article argues that medical devices, therapeutic products and domestic food and goods containing nanosilver, though offering therapeutic benefits, must be subject to precautionary regulation because of associated public health and environmental risks, particularly from large volumes of nanosilver in waste water. It first examines the use of nanosilver in a variety of contemporary medical and domestic products and this utilization may assist in resolving global public health problems such as restricted access to safe food, water and medical care. It then discusses the mechanisms of toxicity for nanosilver, whether it should be classified as a new chemical entity for regulatory purposes and whether its increased usage poses significant environmental and public health risks. The article next critically analyses representative international regulatory regimes (the United States, European Union, United Kingdom and Australia) for medical and domestic use of nanosilver. The conclusion includes a set of recommendations for improving international regulation of nanosilver in terms of both its safety and potential positive contribution to global public health. Author's proof copy.

Read on SSRN

Centre: CIPL

Research theme:

The High Court's Lost Chance in Medical Negligence

The High Court's Lost Chance in Medical Negligence

Author(s):

In 2010 the High Court of Australia in Tabet v. Gett (2010) 240 CLR 537 [PDF] determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v. Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.

Read on SSRN

Centre: CIPL

Research theme:

A Failure to Protect

A Failure to Protect: The UN Human Rights Council and Darfur

Author(s):

This paper assesses the Responsibility to Protect (‘R2P’) principle as an emerging norm of customary international law, and as an effective political strategy in responding to mass atrocity crimes.

The proponents of R2P believe that it has the status of an emerging norm. This analysis accepts that R2P should be evaluated as a ‘soft law’ norm’. Soft law norms are generally the result of a consensus in international forums expressed in normative terms of general application.

An emerging norm is one which ‘does not yet satisfy the requirements for the creation of custom but is regarded as likely to do so over time’. The test whether R2P is an emerging soft law norm would be whether a relevant international forum is likely to form a consensus in support of R2P.

The majority of the members of the Human Rights Council in 2007 repudiated the application of R2P to the situation in Darfur. This response of the Human Rights Council shows that R2P is not, on present indications, ‘likely’ to emerge as a soft law norm over time.

This analysis also shows that the theory of soft law making is not merely a conveniently amorphous substitute for rigorous examination of the evidence of a customary norm. It is possible to test whether a soft law norm has been established or qualifies as an ‘emerging norm’.

The response of the Human Rights Council to the situation in Darfur also shows that R2P has not served as a trigger for an effective political response to mass atrocity crimes.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

The New Racism in Employment Discrimination

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

women_and_discrimination_law.jpg

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

Judgment in Law and the Humanities

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Judgment in Law and the Humanities

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Developing a Professional Identity in Law School

Developing a Professional Identity in Law School: A View from Australia

Author(s): Kath Hall, Molly Townes O'Brien, Stephen Tang

Preliminary results from our study of law student wellbeing at the Australian National University are consistent with results of studies in the US and elsewhere in Australia, suggesting that law students may begin to experience increased psychological distress, including symptoms of depression, in the first year of law school. In light of this evidence, the particular challenge facing legal education is to look at the study of law itself and examine how the pedagogy, substance, and approach of legal education impact students’ self concept and well-being. This paper begins that task by exploring the formation of professional identity in law school.

In making decisions about legal content, materials, and pedagogy, legal educators (often unconsciously) adopt and communicate assumptions about professional identity that may be outmoded, incomplete, and inappropriate for the students’ futures as legal professionals. The typical law school curriculum offers a conception of the lawyer identity that is impoverished by legal education’s over-emphasis on adversarialism, detached analysis, and competitive individualism. Each of these factors may contribute to undermining students’ sense of values, feelings of power and competence, and general sense of wellbeing. Students’ exposure to this inadequate formulation of professional identity comes at a critically important time in the formation of their identities, a time when we, as educators, ought to be particularly sensitive to the messages we send.

We encourage legal educators to correct the distorting effects of a poor conception of the legal professional identity by encouraging the development of key aspects of personality, such as empathy, that are currently under-emphasised in legal education. We also argue that by improving the ways in which the law school environment fosters resilience, legal educators will contribute to their students’ current and future well-being and to the revitalisation of the profession.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy

The Legal Profession in Times of Turbulence

The Legal Profession in Times of Turbulence

Author(s): Vivien Holmes, Kath Hall

From 15 to 17 July 2010, over 150 lawyers, academics and practitioners gathered at Stanford University for the Fourth International Legal Ethics Conference. The number of participants and the breadth and quality of the presentations at this conference were clear evidence of the continuing energy and enthusiasm amongst scholars and practitioners for the field of legal ethics. While the tranquil and beautiful summertime campus at Stanford and the quiet efficiency of the conference organising staff did not echo the theme of the conference (Times of Turbulence), many sessions during the full conference schedule did. In particular, we were constantly reminded of the rapid and complex changes occurring in legal practice across the globe, and the consequent challenges faced by both the legal profession and academia in understanding, practicing and teaching legal ethics.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Criminal Law: Defences to Homicide

Criminal Law: Defences to Homicide

Author(s): Anthony Hopkins

This chapter explores a few of the contexts and the defences for women who kill in Australia. Focusing on battered women who kill, women with PMS and women with post-partum depression, we examine what lawyers should look for in the cases, how to communicate with their clients most effectively to identify whether these background variables were present, possible pleas to argue, and how best to help the Court to hear the women’s case.

Read on SSRN

Centre: CIPL

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

a_marriage_of_strangers.jpg

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Author(s): Greg Weeks

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v. Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v. Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

a_marriage_of_strangers.jpg

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Author(s): Greg Weeks

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v. Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v. Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Age Discrimination in Turbulent Times

Age Discrimination in Turbulent Times

Author(s): Margaret Thornton

Concerns about the ramifications of a rapidly aging population have generally focused on the post-retirement period, with limited scholarly attention to the experience of ageism in the workplace. Despite a shift in policy against early retirement, ‘older workers’ – who may be as young as 40 – are disproportionately experiencing age discrimination, often resulting in joblessness. This article argues that in a postmodern environment, where the culture of ‘youthism’ predominates, the workplace is undergoing significant changes. In the new knowledge economy, characterised by technological know how, flexibility and choice, traditional values such as maturity, experience and loyalty have become passé. Drawing on Australian complaints and reported decisions of age discrimination in the workplace in the context of the international literature, the article demonstrates the variety of forms ageism is taking. It argues that age discrimination legislation reflects an outdated modernist paradigm that fails to address the experience of older workers. In addition, as part of the culture of youthism, work is now being gauged by its capacity to create an aesthetic of pleasure.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

Arctic Ocean Choke Points and the Law of the Sea

Arctic Ocean Choke Points and the Law of the Sea

Author(s): Donald Rothwell

As the international law of the sea has developed throughout the centuries, and there has been a growing acceptance of the legitimacy of a range of maritime zones, there has been a need to provide certainty with respect to the freedom of navigation through certain waters. The initial focus was to assure freedom of navigation in the territorial sea, and this saw the gradual recognition of innocent passage which guaranteed rights of navigation by foreign-flagged vessels. The innocent passage regime developed alongside expanding claims by coastal states to a broader territorial sea, and as long as expansive claims to a territorial sea were kept under check significant disruption to maritime traffic through straits used by international navigation was minimised. However, as the territorial sea regime became more accepted as a part of customary international law, and then was recognised in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, it was evident that the particular issues that arose concerning navigation through straits would have to be addressed.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

Women and Discrimination Law

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education

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