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.

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

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

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

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

Estoppel and Public Authorities: Examining the Case for an Equitable Remedy

Author(s): Greg Weeks

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

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

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The Oxford Handbook of Empirical Legal Research

Editor(s): Peter Cane, Herbert Kritzer

The early years of the first decade of the twenty-first century saw the emergence and rapid development of a movement that labelled itself “Empirical Legal Studies” (ELS). This book acknowledges the diversity of empirical investigation of law, legal systems, and other legal phenomena. In particular, there are at least three approaches and research groupings that predate the contemporary ELS movement, which may be respectively identified as socio-legal/law and society (an interdisciplinary movement with strong roots in sociology but including scholars from a wide range of traditional disciplines including law), empirically oriented law-and-economics, and judicial behaviour/politics. This book also explores three key dimensions of policing: order management, crime management, and security management. Finally, it concludes by identifying some emerging trends in the organization and conduct of police work as policing organizations seek to reconfigure their capacities and capabilities to meet new challenges. The phrase “empirical legal research” in the title, The Oxford Handbook of Empirical Legal Research, is designed both to reflect and to celebrate the healthy pluralism of empirical approaches to the study of law and legal phenomena.

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Centre:

Research theme: Legal Theory

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Maritime Security: International Law and Policy Perspectives from Australia and New Zealand

Editor(s): Donald Rothwell, Natalie Klein, Joanna Mossop

Maritime security is of vital importance to Australia and New Zealand as both countries depend on maritime transport for their economic survival. Since the events of September 11th 2001, significant questions have been raised as to whether Australia and New Zealand are adequately prepared for the consequences of a major disruption to global shipping following a terrorist attack on a leading regional port such as Hong Kong or Singapore. Considerable efforts have also been undertaken to improve responses to an array of maritime security threats, such as transnational crime, environmental pollution, and piracy and armed robbery. This volume identifies those issues that particularly affect Australia and New Zealand’s maritime security, evaluating the issues from legal and political perspectives, and proposes methods for improving maritime security in the two countries. While the focus is primarily on Australia and New Zealand, the scope extends to regional considerations, addressing matters related to Pacific Island states, Southeast Asia and the Antarctic and sub-Antarctic region. The book also addresses strategic partnerships examining the influence of the United States, and analyses issues within the broad framework of international law and politics.

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Centre: CMSL

Research theme:

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International Law: Cases and Materials with Australian Perspectives

Author(s): Donald Rothwell, Kaye Stuart, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: International Law

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Restrictive Trade Practices Law in Australia

Author(s):

This new textbook provides an engaging treatment of Australian competition law and is ideal for those studying the subject for the first time. Written in an explanatory and lively style, the text fosters a sound understanding of the legal principles of competition law in Australia and demystifies the economic concepts underpinning the law. The work focuses on the contemporary situation, including the recently enacted criminal and civil regime governing cartel conduct, and also explains the historical context using analogies from popular culture.

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Centre: CCL

Research theme: Administrative Law, Private Law

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Adaptation to Climate Change: Law and policy

Editor(s): Andrew Macintosh, Tim Bonyhady, Jan McDonald,

While climate policy has focused overwhelmingly on the science and on reducing emissions, policy makers are increasingly focused on how to adapt to changes are already “locked in”, changes that will bring significant social economic and environmental impacts. Adaptation will require technological innovation as well as behavioural and attitudinal change. This book covers the legal dimensions of adaptation and addresses challenges across sector interests. It considers whether existing regulatory and governance frameworks are supportive, adaptable or barriers to necessary change. The authors cover the key issues: sea level rise, planning; water security; climate justice; conservation regimes; the role of the courts; insurance; compensation; and the law of disasters.

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Centre:

Research theme: Environmental Law

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The International Law of the Sea

Author(s): Donald Rothwell, Tim Stephens

The law of the sea provides for the regulation, management, and governance of ocean spaces that cover over two-thirds of the Earth's surface. This text provides: a fresh explanation of the foundational principles of the law of the sea; a critical overview of the 1982 United Nations Convention on the Law of the Sea; and an analysis of subsequent developments, including the many bilateral, regional, and global agreements that supplement the Convention. The book takes as its focus the rules and institutions established by the Law of the Sea Convention and places the achievements of the Convention in both historical and contemporary context.   As the Convention is now over a quarter of a century old, the book takes stock of contemporary oceans issues that are not adequately addressed by the Convention. Overarching challenges facing the law of the sea are addressed including: how new maritime security initiatives can be reconciled with traditional navigational rights and freedoms; how declines in the health of marine ecosystems can be addressed through new and strengthened legal regimes; and how the law of the sea can regulate ocean space in the Polar regions, as global warming opens up new possibilities for resource exploitation.

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Centre: CIPL, CMSL

Research theme: International Law

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Mills, Mines and Other Controversies: The Environmental Assessment of Major Projects

Editor(s): Andrew Macintosh, Tim Bonyhady

Major developments have the potential to generate significant economic benefit and substantial environmental damage – and major political controversies as local, State and federal governments become involved. Process can fracture all too easily as governments come under fierce and competing pressures. This book is concerned with whether environmental impact assessment is an effective vehicle for protecting the Australian environment when major projects are in play. It scrutinises a major development in each State and territory and shows what happened and why things happened, which processes worked and which didn’t, and the roles of the different layers of government. The case studies include the headline projects such as the Gunns Mill in the Tamar Valley, Queensland’s Traveston Dam, the dredging of Port Phillip Bay, the expansion of the McArthur River mine and the Gorgon Gas development of Barrow Island.

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Centre:

Research theme: Environmental Law

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Regulating Impartiality: Electoral-Boundary Politics in the Administrative Arena

Author(s): Ron Levy

The author examines impartiality in cases of politically contentious decision making. Many jurisdictions delegate decisions over matters such as the establishment of fair election ground rules to independent bodies. Some of these bodies, including Canada's Federal Electoral Boundaries Commissions (FEBCs), attract widespread trust and are by most accounts substantially impartial. In contrast, commissions empanelled to draw electoral boundaries in the United States, and to a lesser extent in certain Canadian provinces, are often plagued by partisanship.

The author canvasses approaches to controlling partisanship, relying on a series of interviews conducted with boundaries commissioners and on interdisciplinary literature on trust and trustworthiness in governance. Commentators often favour bolstering formal constraints on FEBC discretion. However, the author concludes that traditional administrative law models favouring such constraints are often inadequate. In politically sensitive cases these methods frequently catalyse partisanship. Proposals for more nuanced design -- design sensitive to the complex interactions between law and administrative culture in cases where the potential for partisanship is high - are better but rarer. The author focuses in particular on the use of ambiguity in legal and institutional design. Although this approach is counterintuitive in light of rule-of-law assumptions favouring clarity, it has nevertheless gained traction in commentary and has long been at work in practice. The author argues that extensively ambiguous design, as displayed by the complex federal readjustment processes in Canada, has helped to develop the widely admired impartial decision-making cultures of the FEBCs.

Read on SSRN

Centre: CIPL, DGAL

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

Sustainability and the Law: Climate Change, Energy and Urban Issues

Author(s): James Prest

This chapter describes ACT laws which require action towards improved environmental sustainability. It examines provisions to reduce carbon emissions and energy use, improve energy, transport and water efficiency, and requirements to consider the environment in decision making.

The Chapter covers Planning and Development Act 2007 (ACT), Environment Protection Act 1997, Electricity (National Scheme) Act 1997, Utilities Act 2000, Weathering the Change: the ACT Climate Change Strategy 2007-2025, ACT Electricity (Greenhouse Gas Emissions) Act 2004, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), Electricity Feed-in (Renewable Energy Premium) Act 2008, Solar access law, sustainability provisions in ACT Planning Law, Energy efficiency law including the Building Act 2004, Energy Star Ratings including Nationwide House Energy Rating Scheme, Building Sustainability Index (BASIX), energy efficiency performance ratings (EER) including EER and rental properties, Efficiency of Appliances. The Chapter also covers Planning law as it relates to urban water issues including Catchment protection, Water tanks, Water Efficiency and Labelling Standards (WELS).

The Chapter concludes by arguing that the ACT has a number of provisions scattered throughout the statute book which address the question of environmental sustainability, primarily through energy ratings, water efficiency measures and planning controls. However the extent to which these provisions might be said to provide a ‘best practice’ systematic and integrated framework for the attainment of improved levels of sustainability is certainly debateable. There is no overarching climate change response legislation, nor is there an overarching Sustainability Act which might require government decisions across portfolios to be made having regard to the principles of ESD.

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Centre:

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

The Environment Protection and Biodiversity Conservation Act 1999 (CTH): An Evaluation of its Cost-Effectiveness

Author(s): Andrew Macintosh

This article outlines the results of a broad cost-effectiveness analysis of the federal environmental impact assessment (EIA) regime under Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Statistics on the operation of the EIA regime are reviewed and an analysis of the regime’s effectiveness in dealing with Australia’s main environmental threats is provided. Consideration is also given to any indirect benefits the regime may have generated. The identified environmental achievements of the EIA regime over the period July 2000 to 30 June 2008 are compared to its administration costs, which are estimated at $135 million – $220 million. The conclusion is reached that over the study period the EIA regime generated minor improvements in environmental outcomes at moderate to high cost.

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Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Australia's National Environmental Legislation: A Response to Early

Author(s): Andrew Macintosh

This article provides a critique of a paper by Gerard Early on the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Early’s article presents the EPBC Act as world best practice environmental impact assessment (EIA) legislation and argues that it has produced significant improvements in environmental outcomes. The evidence suggests otherwise. The EPBC Act is deficient in a number of respects, particularly in relation to the structure of the EIA regime and listing processes concerning threatened biodiversity and heritage areas. This article outlines defects in Early’s analysis and in the EPBC Act more generally.

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Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Muzzling of the Dingo Forest Mob

Author(s): James Prest

Article describes 1993 lawsuit in Supreme Court of NSW by Forestry Commission of NSW (Australia) against Helmut Aimann, Chris Sheed and other various anti-logging activists, including unnamed persons, seeking to restrain them from "trespassing" in a two publicly owned forests. Categorises this litigation as a SLAPP suit and provides a review of earlier Australian instances of litigation against public participation including against Greenpeace over Nufarm, and against the Aurora Hotel Action Group over demolition of heritage buildings in Adelaide.

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Centre:

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

Normative Foundations of Technology Transfer and Transnational Benefit Principles in the Unesco Universal Declaration on Bioethics and Human Rights

Author(s):

The United Nations Scientific, Education and Cultural Organization Universal Declaration on Bioethics and Human Rights (UDBHR) expresses in its title and substance a controversial linkage of two normative systems: international human rights law and bioethics. The UDBHR has the status of what is known as a 'non-binding' declaration under public international law. The UDBHR's foundation within bioethics (and association, e.g., with virtue-based or principlist bioethics theories) is more problematic. Nonetheless, the UDBHR contains socially important principles of technology transfer and transnational benefit (articles 14, 15 and 21). This paper is one of the first to explore how the disciplines of bioethics and international human rights law may interacts in the UDBHR to advance the policy relevance and health impact of such principles. It investigates their normative ancestry in the UDBHR, as well as relevant conceptual differences between bioethics and international public law in this respect, and how these may be relevant to their conceptual evolution and application.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Hearing Australian Aboriginal Voices on Neglect and Sustainability

Author(s):

The recent bushfires in Victoria, which took over 200 lives, paradoxically may have highlighted a positive aspect of Aboriginal culture highly relevant to concerns about the sustainability of global human society. Indigenous Australians, finding joy in few wants and a philosophy of the eternal perpetually resonating in the present (rather than some past Eden or future heaven), were able to continuously inhabit their harsh continent for over 10,000 years. They did so with an acute understanding of how to continuously adapt to achieve a balance between population, production and their impingement on the capacity of nature to deliver necessary ecosystem services indefinitely. This included a profound knowledge of how to live with frequent forest (bush) fires.

As global warming and adverse climate change (driven in large part by the needs of contemporary consumerist society) create unprecedented high temperatures and drought conditions over southern Australia (and increasing incidences of such deadly bushfires), it appears that our present industrialised civilisation may soon be at long odds to remain intact on the same land for a mere 500 years. Contemporary concerns about global social sustainability, in other words, create a further important reason why Aboriginal voices and perspectives should be expressed and heard.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law

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