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.

Do We Really Want to Know

Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools

Author(s): Kath Hall

Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.

With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

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Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

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Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Judicial Rhetoric and Constitutional Identity

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Corporate Constitutionalism

Review Essay: Corporate Constitutionalism

Author(s): Peta Spender

The challenge for critical corporate law scholars is to provide an account of corporate law that accommodates responsiveness to the public interest. This involves defining a space for debate about both the public policy goals of corporate law and the regulatory mechanisms for achieving those goals. This task is a complex one because it involves recognising the insights of law and economics scholars, in particular, that corporations are at once important components of markets and constituted by those markets. A recent book and winner of the 2008 Hart Socio-Legal Book Prize, The Constitutional Corporation by Stephen Bottomley, provides just such an account of corporate law. This book provides a pragmatic account of corporate law which opens up corporate law to political concerns while acknowledging that corporate law is private in its orientation. This review of The Constitutional Corporation provides an overview of Bottomley’s analysis, locates his approach in broader theoretical debates about corporate law and examines the potential of the approach to develop systems of corporate social responsibility in order to meet impending global challenges such as climate change.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Shakespeare and Judgment.

Shakespeare and Judgment: The Renewal of Law and Literature

Author(s): Desmond Manderson

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Should the United Nations Security Council Leave It To the Experts

Should the United Nations Security Council Leave It To the Experts? The Governance and Accountability of UN Sanctions Monitoring

Author(s): Jeremy Farrall

Introduction: The chapters in this collection use the example of United Nations sanctions as a means to explore the questions of accountability and governance that arise when legal norms are applied with cross-boundary effect. The boundaries in question are both physical, in the sense of clearly delineated national borders, as well as conceptual, as with the traditional distinctions that are drawn between the domains of public and private law, and between international and domestic law.

Read on SSRN

Centre: CIPL

Research theme: International Law

The Spectral Ground

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH

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

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, CMSL, LGDI

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

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Animals and the Trade Practices Act

Animals and the Trade Practices Act: The Return of the Descartes Ghost

Author(s): Alex Bruce

French philosopher Rene Descartes thought animals were little more than inanimate objects without the capacity to think or feel pain. At the time, Descartes was influenced by the prevailing mechanistic conception of the natural world in which phenomena could be explained in simple mechanical terms.

This article examines the way in which the Trade Practices Act has been utilized by various litigants when the interests of those litigants have involved animals. It suggests that the dominating philosophical influence of the Act is grounded in Cartesian principles, thus making no differentiation in principle or application between animals and other inanimate objects as economic goods.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law and Religion, Private Law

Genesis

Genesis

Author(s): Desmond Manderson

This chapter forms the introductory essay to a collection of new essays on the relationship between the ethical philosphy of Levinas and the law, with a particular focus on delimiting the range and implications of Levinas' ambitious ethical agenda. Issues of responsibility and hospitality, self and other, ethics and politics, law and justice, are outlined with reference to the implications for law and to their further elaboration in the rest of the essays contained in this collection.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Should the United Nations Security Council Leave It To the Experts

Should the United Nations Security Council Leave It To the Experts? The Governance and Accountability of UN Sanctions Monitoring

Author(s): Jeremy Farrall

Introduction: The chapters in this collection use the example of United Nations sanctions as a means to explore the questions of accountability and governance that arise when legal norms are applied with cross-boundary effect. The boundaries in question are both physical, in the sense of clearly delineated national borders, as well as conceptual, as with the traditional distinctions that are drawn between the domains of public and private law, and between international and domestic law.

Read on SSRN

Centre: CIPL

Research theme: International Law

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, LGDI

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

What is the Right Thing to Do

What is the Right Thing to Do?: Reflections on the AWB Scandal and Legal Ethics

Author(s): Vivien Holmes

The Cole Inquiry resulted in a five volume report that extensively details the history of AWB Ltd’s dealings with Iraq under the Oil-for-Food Programme (OFFP). In this chapter, I reflect on the role AWB in-house lawyers played in the AWB-Iraq story, exploring how lawyers who are too closely identified with the perceived interests of the client can step over the ethical (even if not the criminal) line, and work against both the client’s best interests and the public interest. I reflect also on the AWB lawyers’ role as counsel for a corporation whose actions had global ramifications. Legal practice today has global reach and I discuss the implications of this for our professional ethical horizons.

Read on SSRN

Centre: CIPL

Research theme: Legal Education

At the Intersection of International and Municipal Law

At the Intersection of International and Municipal Law: The Case of Commissioner Cole and the Wheat Export Authority

Author(s): Anne McNaughton

The global economy is becoming increasingly integrated thanks to developments in technology, the reduction of trade barriers and the increase in direct foreign investment, particularly in developing states. Law, in the broadest sense of that term, has not integrated in the same way. This is, in our view, demonstrated starkly by the Oil-for-Food scandal. The transference of obligation from international to domestic legal systems has been settled for a long time. Ascertaining at what level responsibility attaches for monitoring compliance, investigating cases of apparent non-compliance and, where necessary, imposing sanctions remains unsettled, as this case study demonstrates.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law, Governance and Development

Academic Un-Freedom in the New Knowledge Economy

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Who’s Responsible

Who’s Responsible? Justiciability of Private and Political Decisions

Author(s): Daniel Stewart

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (‘AWB’) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government’s responsibility for the circumstances leading to that inquiry. The Australian government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action, and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Read on SSRN

Centre: CCL, CIPL

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

Liar's Fall a Lesson for Us All

Liar's Fall a Lesson for Us All

Author(s): Kath Hall

Former Federal Court Judge Marcus Einfeld was taken from the NSW Supreme Court into custody last Friday, after being sentenced by Justice Bruce James to a two-year non-parol period for perjury and perverting the course of justice.

Whilst clearly these charges and the court's sentence are very serious, the circumstances that led up to them are almost too crazy for many of us to believe. As the facts now show, throughout 2006 and 2007, Einfeld lied about driving a car that was caught speeding on camera.

The lies were contradictory, childlike and often hard to believe. Yet isn't one of the first lessons all children learn thou shalt not lie? If so, then why did this experienced, well regarded, former Australian judge lie to avoid a small speeding fine? Why did he not realise that adding one lie upon another and another would end up burying him in a deep and hopeless hole such as the one he is now in?

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Filling or Falling between the Cracks

Introduction: Filling or Falling between the Cracks? Law’s Potential

Author(s): Kim Rubenstein, Jeremy Farrall

This is the introduction to the first volume of the new Cambridge University Press series Connecting International law with Public law.

The first volume is titled Sanctions, Accountability and Governance in a Globalised World and is edited by the authors of this introduction and explores fascinating questions that arise when legal regimes collide. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. While there is some scholarship developing in the area of global administrative law, and some scholars have touched upon the principles relevant to both disciplines, the publications to date contain only a subset of the concept underpinning this book. This first book aims to broaden understanding of how public and international law intersect. It is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. What can public lawyers bring to international law and what can international lawyers bring to public law? What are the common interests? Which legal principles cross the international law/domestic public law divide and which principles are not transferable? What tensions emerge from bringing the disciplines together? Are these tensions inherent in law as a discipline as a whole or are they peculiar to law’s sub disciplines? Can we ultimately only fill in or fall between the cracks, or is there some greater potential for law in the engagement?

Read on SSRN

Centre: CIPL, CLAH

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

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