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.

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Literature and Ethics

Literature and Ethics

Author(s):

There are a variety of ways in which canonical literature may influence our understanding and application of ethics. It may be read on a regular basis to promote and condition an ethical sensibility. It may provide vicarious experience that tests and develops ethical understanding. It can drive public opinion towards ethical changes in social circumstances. Such literature has been responsible for inspiring and strategizing ethical decisions made by individuals or groups. It has also shaped the way humans reflect about themselves (for example as ethical beings in possession of a conscience that needs regular exercise if they are to flourish). Such literature, however, may also have a normative role in shaping the development of ethical principles that in time may emerge as laws.

The great ethical task of literature then, as William Faulkner said, is to move attentive readers as those they influence from knowing nothing, past knowing but not caring, towards knowing, caring and acting; towards proving the ethical thesis that humanity is indestructible because of its simple will to overcome all obstacles to individual freedom.

Canonical literature’s most fundamental ethical purpose, as James Joyce’s Stephen Dedalus put it, is to encourage us to keep striving truthfully to find out what happens after the universe and why it matters.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Constitutional Limits on Federal Legislation Practically Compelling Medical Employment

Constitutional Limits on Federal Legislation Practically Compelling Medical Employment

Author(s):

A recent decision by the High Court of Australia (Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573) (the PSR case) has not only clarified the scope of the Australian constitutional prohibition on “any form of civil conscription” in relation to federal legislation concerning medical or dental services (s 51xxiiiA), but has highlighted its importance as a constitutional guarantee ensuring the mixed State- federal and public-private nature of medical service delivery in Australia. Previous decisions of the High Court clarified that the prohibition does not prevent federal laws regulating the manner in which medical services are provided. The PSR case determined that the anti-overservicing provisions directed at bulk-billing general practitioners under Pt VAA of the Health Insurance Act 1973 (Cth) did not offend the prohibition. Importantly, the High Court also indicated that the s 51(xxiiiA) civil conscription guarantee should be construed widely and would invalidate federal laws requiring providers of medical and dental services (either expressly or by practical compulsion) to work for the federal government or any specified State, agency or private industrial employer. This decision is likely to restrict the capacity of any future federal government to restructure the Australian health care system, eg by implementing recommendations from the National Health and Hospitals Reform Commission for either federal government or private corporate control of presently State-run public hospitals. This decision confirms that s 51xxiiiA operates as a constitutional prohibition against the establishment in Australia of United States-style managed care corporate-controlled delivery of medical services and supports the public option in hospital care.

Read on SSRN

Centre: CIPL

Research theme:

Constitutional Adjudication and Democracy

Constitutional Adjudication and Democracy: One Voice or Many?

Author(s):

Charles Evans Hughes’ pithy remark in 1907 that ‘the Constitution is what the judges say it is’ sparked a vigorous, and probably never-ending, debate about the tension between the objective and subjective elements in judicial law-making. In contested cases of constitutional interpretation in a multi-member final appellate court, can there be one ‘right’ view, produced by the objective application of an external standard, or is the prevailing view merely the accidental consequence of the aggregation of individual subjective opinion to form a view that happens to have majority support?

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

Accreditation

Accreditation: Safety, Risk, and Good Business

Author(s):

Good morning everyone, and thank you for inviting me to your Convention this year. I have had a connection with the trucking industry for over 25 years now, but very much from the outside, so I do not in any way hold myself out as an expert. I hope you will take my remarks merely as those of an interested observer, who cares about improving the industry in the interest of everyone who makes their livelihood from it, and everyone who is served by it - in other words, in the interest of all Australians. I hope also that the benefit of being an outsider, in being able to stand back a little from the day-to-day detail of how the industry operates, will more than make up for not being immersed in that detail.

This will come to you way out of left field, but my thoughts about what to say to you have been stimulated by the collapse of democracy in Fiji. Having grabbed your attention with that observation, in this first session of the day, let me answer what you are all thinking: what on earth is he talking about? Well, I found myself pondering the question, why does this happen in Fiji and not in Australia? I am sure there are many reasons, but let me mention just two.

Read on SSRN

Centre:

Research theme:

The Role of Law Schools in the Promotion of Human Rights

The Role of Law Schools in the Promotion of Human Rights

Author(s):

One of the IALS conference topics is, ‘educating our students for what?’

Not too long ago, the answer in Australia would have been relatively easy. We were educating our students for legal practice in the local jurisdiction. Let me comment briefly on both of those components – legal practice and the local jurisdiction – the latter first.

As US lawyers will readily understand, educating lawyers for practice in the local jurisdiction in a federal system, as you have here and we have in Australia, necessarily entailed a serious lack of national mobility for lawyers. But, in the last decade in particular, our system in Australia has been transformed by moving effectively to a national legal profession. Admission to practice in any one jurisdiction now carries with it the right to admission to practice in any other jurisdiction.

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy

A Delicate Business

‘A Delicate Business’: Did AWB's Kickbacks to Iraq under the United Nations Oil-For-Food Programme Constitute a Violation of Australia's International Obligations?

Author(s):

The object of this chapter is to show that Australia did not violate its international legal obligations as a result of the kickbacks by AWB to the former Iraqi regime under the United Nations Food-For-Oil Programme (OFFP), but that the AWB scandal showed systemic failures in effective domestic governance and the appropriate conduct of Australia's foreign policy, compounded by a failure of accountability when the AWB scandal was exposed.

Read on SSRN

Centre: CIPL

Research theme: International Law

Developing an Equivalent to the National Medicines Policy for Medical Devices

Developing an Equivalent to the National Medicines Policy for Medical Devices

Author(s):

While Australia has enjoyed the benefits of a National Medicines Policy (NMP) for many years, there is no national equivalent policy for medical devices. This is despite an established medical device legal framework that spans multiple departments across the Australian Government. The existing NMP offers an effective and proven benchmark for the development of a national medical devices policy. The four NMP principles of industry, standards, access and use are applicable to all phases of the medical device life-cycle and align with existing medical devices policy. This article proposes that Australia's approach to medical devices stands to benefit from an equivalent whole-of-government policy.

Read on SSRN

Centre: CIPL

Research theme:

Assessing the Safety and Cost-Effectiveness of Early Nanodrugs

Assessing the Safety and Cost-Effectiveness of Early Nanodrugs

Author(s):

This article provides a detailed examination of how the safety and cost-effectiveness elements of Australia's drug regulatory system will respond to nanomedicines. The case study investigated involves Abraxane, a newly developed anti-cancer agent. The article concludes by proposing some responses to the challenges which nanomedicines are likely to present to international and domestic agencies. Additionally, it considers whether the recommendation of the Australian Productivity Commission to allow parallel submissions to the Pharmaceutical Benefits Advisory Committee (PBAC) and the Therapeutic Goods Administration (TGA) is appropriate when applied to new nanotherapeutics.

Read on SSRN

Centre: CLAH

Research theme:

New Australian Federal Organ and Tissue Donation Legislation

New Australian Federal Organ and Tissue Donation Legislation: Enhanced Transplant Services But No ‘Opt-Out’

Author(s):

Seriously ill people who could achieve many years of quality life with organ donation continue to die on waiting lists due to the scarcity of donated organs. Recent advances that suggest donor organs can be coated with host stem cells to reduce or remove the need for long-term recipient immuno-supressive medication highlight the importance of encouraging such donation. A wide variation in organ donor rates in developed nations suggests this is one issue in which the right regulation can make a difference. Australia has now passed federal legislation on the topic. This column considers whether that legislation is headed in the right direction.

Read on SSRN

Centre: CIPL

Research theme:

Withdrawing Treatment

Withdrawing Treatment at the Direct or Indirect Request of Patients or in Their Best Interests: HNEAHS v. A; Brightwater CG v. Rossiter; and ACT v. JT

Author(s):

In Hunter and New England Area Health Service v. A [2009] NSWSC 761; Brightwater Care Group (Inc) v. Rossiter [2009] WASC 229; and Australian Capital Territory v. JT [2009] ACTSC 105 Australian courts have recently considered the circumstances in which technically futile treatment may be withdrawn from patients at their direct or indirect request or purportedly in their best interests. The cases provide many valuable lessons about how norms of ethics, law and international human rights shape the regulatory framework of this area of healthcare in Australia.

Read on SSRN

Centre: CIPL

Research theme:

New Australian Federal Organ and Tissue Donation Legislation

New Australian Federal Organ and Tissue Donation Legislation: Enhanced Transplant Services But No ‘Opt-Out’

Author(s):

Seriously ill people who could achieve many years of quality life with organ donation continue to die on waiting lists due to the scarcity of donated organs. Recent advances that suggest donor organs can be coated with host stem cells to reduce or remove the need for long-term recipient immuno-supressive medication highlight the importance of encouraging such donation. A wide variation in organ donor rates in developed nations suggests this is one issue in which the right regulation can make a difference. Australia has now passed federal legislation on the topic. This column considers whether that legislation is headed in the right direction.

Read on SSRN

Centre: CIPL

Research theme:

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Non Violation Nullification of Benefit Claims

Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas for Australia in the WTO Dispute Settlement System

Author(s):

This paper critically analyses existing WTO Dispute Settlement rules and experience to raise awareness amongst industry, government and relevant trade law practitioners of the value in developing expertise about initiating and defending non-violation nullification of benefits (“NVNB”) claims and proceedings. NVNB claims directly arise in a WTO setting under Article 26 of the Dispute Settlement Understanding (“DSU”), Article XXIII of the General Agreement on Tariffs and Trade (“GATT1994”), Article XXIII of the General Agreement on Trade in Services (“GATS”) and Article 64 of the Trade-Related Intellectual Property agreement (“TRIPS”).

NVNB claims represent one of the potentially most valuable, yet also potentially threatening, areas of WTO Dispute Settlement jurisprudence for the Commonwealth government, for Australian exporters and other companies whose competitive position may be affected by the trade restrictive actions of foreign governments. Under NVNB provisions, the full range of dispute resolution mechanisms may be invoked, whether or not a breach of any specific trade rule is alleged, provided a “reasonably expected” “benefit” accruing under the relevant trade agreement, has been “nullified or impaired” by a “measure” applied by a WTO member.

We will examine the contentious tactical role of the WTO DSU NVNB claims and proceedings in converting the ‘constructive textual ambiguities’ of strongly contended trade agreement provisions, into binding rules. We shall also consider the steps that need to be taken to prepare to initiate such claims and to defend against them.

This Chapter begins by outlining the origins and place of NVNB provisions in the DSU, GATT, GATS and TRIPS. It then discuses the relevant WTO NVNB jurisprudence and considers some opportunities and dilemmas presented by such claims in the context of the WTO DSU and Australia’s long term pubic policy objectives. It concludes by offering some options for strategically utilising NVNB claims and defences.

Read on SSRN

Centre: CIPL

Research theme: International Law

Literature and Ethics

Literature and Ethics

Author(s):

There are a variety of ways in which canonical literature may influence our understanding and application of ethics. It may be read on a regular basis to promote and condition an ethical sensibility. It may provide vicarious experience that tests and develops ethical understanding. It can drive public opinion towards ethical changes in social circumstances. Such literature has been responsible for inspiring and strategizing ethical decisions made by individuals or groups. It has also shaped the way humans reflect about themselves (for example as ethical beings in possession of a conscience that needs regular exercise if they are to flourish). Such literature, however, may also have a normative role in shaping the development of ethical principles that in time may emerge as laws.

The great ethical task of literature then, as William Faulkner said, is to move attentive readers as those they influence from knowing nothing, past knowing but not caring, towards knowing, caring and acting; towards proving the ethical thesis that humanity is indestructible because of its simple will to overcome all obstacles to individual freedom.

Canonical literature’s most fundamental ethical purpose, as James Joyce’s Stephen Dedalus put it, is to encourage us to keep striving truthfully to find out what happens after the universe and why it matters.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Withdrawing Treatment at the Direct or Indirect Request

Withdrawing Treatment at the Direct or Indirect Request of Patients or in Their Best Interests: HNEAHS v. A; Brightwater CG v. Rossiter; and ACT v. JT

Author(s):

In Hunter and New England Area Health Service v. A [2009] NSWSC 761; Brightwater Care Group (Inc) v. Rossiter [2009] WASC 229; and Australian Capital Territory v. JT [2009] ACTSC 105 Australian courts have recently considered the circumstances in which technically futile treatment may be withdrawn from patients at their direct or indirect request or purportedly in their best interests. The cases provide many valuable lessons about how norms of ethics, law and international human rights shape the regulatory framework of this area of healthcare in Australia.

Read on SSRN

Centre: CIPL

Research theme:

Disabling Discrimination Legislation

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH

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

Pages

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