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.

‘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.
Centre: CIPL
Research theme: International Law

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.
Centre: CIPL
Research theme:

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.
Centre: CLAH
Research theme:

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.
Centre: CIPL
Research theme:

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.
Centre: CIPL
Research theme:

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.
Centre: CIPL
Research theme:

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.
Centre: CIPL
Research theme: International Law

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.
Centre: CIPL
Research theme: International Law

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.
Centre: CIPL
Research theme: International Law

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.
Centre: CIPL
Research theme: International Law

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.
Centre: CIPL
Research theme: International Law

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.
Centre: CLAH
Research theme: Human Rights Law and Policy

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.
Centre: CIPL
Research theme:

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

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

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

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.
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: 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.
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

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

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.
Centre: CLAH
Research theme: Legal Theory