Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

The Power of Rationalization to Influence Lawyers' Decisions to Act Unethically

Author(s): Kath Hall, Vivien Holmes

This article explores the psychological literature on rationalization and connects it with contemporary questions about the role of in-house lawyers in ethical dilemmas. Using the case study of AWB Ltd, the exclusive marketer of Australian wheat exports overseas, it suggests that rationalizations were influential in the perpetuation by in-house lawyers of AWB's payment of kickbacks to the Iraqi regime.

The article explores how lawyers' professional rationalizations can work together with commercial imperatives to prevent in-house lawyers from seeing ethical issues as those outside the organisation would see them. In particular, where lawyers over-identify with their client's commercial point of view and convince themselves that their role is primarily about providing 'technical' advice on commercial matters, wilful or unintended 'ethical blindness' can result. Lawyers can end up involved in or perpetuating serious misconduct by their client organizations.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Law School, the Market, and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of ‘customer’ and ‘service provider’. Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH

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

Proximity – The Law of Ethics and the Ethics of Law

Author(s): Desmond Manderson

Emmanuel Levinas is one of the great writers on ethics of the 20th Century, but he is little known in law. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence, offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. His writing is passionate, mystical, and rational, at times erudite and elsewhere downright obtuse. But as reward for this struggle, Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and - remarkably - he does so using the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts. Central to Levinas’ meditations is an idea of ethics to which I will have recourse. For Levinas, and those who have been influenced by him, the word ethics implies a personal responsibility to another that is both involuntary and singular. The demand of ethics comes from the intimacy of an experienced encounter, and its contours cannot therefore be codified or predicted in advance. At least as opposed to the Kantian paradigm of morality as ‘a system of rules,’ ethics therefore speaks about inter-personal relationships and not about abstract principles. At least as opposed to most understandings of law, ethics insists on the necessity of our response to others, and the unique predicament of each such response, rather than attempting to reduce such responses to standard instances and norms of general application applicable to whole communities and capable of being settled in advance. Indeed, ethics constantly destabilizes and ruptures those rules and that settlement. Furthermore, ethics implies an unavoidable responsibility to another which Levinas exhorts as ‘first philosophy’: by this he means to indicate that without some such initial hospitality or openness to the vulnerability of another human being, neither language nor society nor law could ever have got going. At least as opposed to many understandings of justice, there is nothing logical or a priori inevitable about such an openness; except that without it, we would not be here to talk to one another. We cannot derive this ethics from rational first principles. Ethics is that first principle.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Cronullified: Can the Commonwealth Regulate Low Level Racist Speech?

Author(s):

Political commentary on race, multiculturalism and national identity can be very controversial because it often appears to demarcate a line between those Australians who are ethnic and cultural insiders and those who are outsiders. This type of speech can venture into the territory of being low level racial vilification speech. That is, speech that contains overtones that are hostile or contemptuous towards a particular racial group but which does not overtly espouse hatred. Low level racial vilification speech serves to exclude others from being truly equal within the community. Yet it does not appear to be effectively regulated under the Racial Discrimination Act. However, this type of speech deserves some form of public censure. In this article I analyse low level racial vilification speech in the context of political speech. I consider whether it is possible to implement a policy scheme where speech with racist overtones, as opposed to hate speech, can be subjected to some form of official censure whilst, in the interests of not unduly restraining political speech, not being prevented from being published or disseminated.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

Fresh Perspectives on the 'War on Terror'

Author(s): Miriam Gani

On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W Bush declared a 'war on terror'. The concept of the 'war on terror' has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The 'war on terror' is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world. This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

Read on SSRN

Centre: CIPL

Research theme:

International Aviation Emissions to 2025: Can Emissions Be Stabilised Without Restricting Demand?

Author(s): Andrew Macintosh

International aviation is growing rapidly, resulting in rising aviation greenhouse gas emissions. Concerns about the growth trajectory of the industry and emissions have led to calls for market measures such as emissions trading and carbon levies to be introduced to restrict demand and prompt innovation. This paper provides an overview of the science on aviation's contribution to climate change, analyses the emission intensity improvements that are necessary to offset rising international demand. The findings suggest international aviation carbon dioxide emissions will increase by more than 110 per cent between 2005 and 2025 (from 416 Mt to between 876 and 1013 Mt) and that it is unlikely emissions could be stabilised at levels consistent with risk averse climate targets without restricting demand.

Read on SSRN

Centre: CIPL

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

Forensic Nanotechnology, Biosecurity and Medical Professionalism: Improving the Australian Health Care System's Response to Terrorist Bombings

Author(s):

This chapter explores how medical professionalism in forensic bioterrorist investigations may be influenced by the enhanced surveillance, detection and data storage capacities offered by nanotechnology. It draws on the author's experience treating patients injured in the 2002 Bali bombings.

It is now well accepted that health professionals involved in forensic investigations may experience conflict of interest problems with moral, ethical, legal and human rights dimensions. Physicians acquiring information, for example, about crimes from patients may have to breach ethical and legal obligations of confidentiality in disclosing that information to justice authorities. The professional obligations of physicians involved in forensic investigations extend to the collation of evidence and provision of testimony within an adversarial legal system. Many of these duties have the potential to create dilemmas for a physician's sense of professionalism, which is generally characterised by an emphasis on public service, rather than profit-earning, by an occupation with State-recognised special skill.

Physicians treating terrorist suspects or involved in investigating allegations of massacres, may be assisted in resolving any resultant conflict of interest dilemmas by reference not only to basic principles of medical ethics, but to relevant United Nations guidelines. International humanitarian law is another important source of professional norms by which physicians can calibrate legislation or other obligations to the state requiring their involvement in such areas. It is an aggregation of customary and treaty-based principles and rules concerned with the treatment of wounded, civilians and prisoners in war, and overlapping with many areas of medical ethics. Article 7 of the ICCPR, as well as prohibiting torture or cruel, unusual or degrading treatment or punishment also provides that 'no one shall be subjected without his free consent to medical or scientific experimentation'.

Read on SSRN

Centre:

Research theme:

International Law as an Influence on the Development of the Common Law: Evans v. State of New South Wales

Author(s):

The Full Federal Court in Evans v. State of New South Wales [2008] FCAFC 130 (Evans) declared that the ‘causing annoyance’ limb of cl 7(1)(b) of the World Youth Day Regulation 2008 was invalid, but found that the ‘causing inconvenience’ limb of cl 7(1)(b) was not invalid. The judgment has three interesting aspects.

Firstly, the judgment, in line with recent High Court decisions, applied the ‘principle of legality’ as an objective reformulation of the presumption against the infringement of fundamental principles such as common law rights and freedoms.

Secondly, the judgment stated that ‘freedom of religious belief and expression’ was ‘another important freedom generally accepted in Australian society’, an apparent clear statement that the freedom of religious belief and expression was among the common law rights and freedoms to which the principle of legality applied.

Thirdly, the Evans decision was the first recognition of the common law freedom of religious belief and expression by an Australian court which supported the freedom by reference to international law. This seems to be the first application by an Australian Court of Justice Brennan’s statement in Mabo v Queensland No 2(1992) 175 CLR 1 at 42 ; (1992) 107 ALR 1, 29 that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.

The Evans decision shows that a more open minded approach to the application of international law would enrich Australian jurisprudence.

Read on SSRN

Centre: CIPL

Research theme: International Law

University of Western Australia v Gray: An Academic Duty to Commercialise Research?

Author(s):

In an era of tightening university budgets and pressure to commercialise academic knowledge, many higher education institutions see the exploitation of new inventions and discoveries, through the use of patents, as an additional revenue stream. To that end, many such organisations have in place policies and by-laws which regulate “ownership” and disclosure of inventions created by employees. This can be seen as a continuation of an ongoing process of shifting universities from institutes of “pure research” to commercial operations, seeking to maximise financial gains from the efforts of their researchers. However, new opportunities present new risks. One of the last Federal Court decisions by the High Court of Australia’s new Chief Justice, Justice French, in University of Western Australia v Gray [2008] FCA 498 explores some of the challenges which Australian university administrators and policy developers will need to overcome if an appropriate balance between private interests and public good is to be maintained in this context.

If their movement into commercial patenting is to be reconciled with the time-honoured position of universities as centres of learning, support for public goods and open access research, then government intervention, through an expansion of the “fair use” provisions in the Copyright Act and Patents Act to include academic research, may need to be considered. At the very least, patenting should be seen against its historical background: as an authorised, but limited, monopoly privilege granted temporarily and primarily in the public interest, to encourage innovation and to assist in the dissemination of knowledge.

Read on SSRN

Centre:

Research theme: Legal Education

Fresh Perspectives on the ‘War on Terror’

Author(s): Miriam Gani

On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W. Bush declared a ‘war on terror’. The concept of the ‘war on terror’ has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The ‘war on terror’ is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world.

This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

Law Reform and Legal Education: Uniting Separate Worlds

Author(s):

I begin with a confronting proposition. Law reform and legal education have traditionally been separate worlds, rarely in danger of collision or even constructive combination. This separation is not good for either law reform or legal education, or for the legal profession, the discipline of law, or the advancement of society. These two separate worlds can and should be brought together, so that legal education has a conscious and deliberate law reform ethos and focus.

Read on SSRN

Centre:

Research theme: Legal Education

International Aviation Emissions to 2025: Can Emissions Be Stabilised Without Restricting Demand?

Author(s): Andrew Macintosh

International aviation is growing rapidly, resulting in rising aviation greenhouse gas emissions. Concerns about the growth trajectory of the industry and emissions have led to calls for market measures such as emissions trading and carbon levies to be introduced to restrict demand and prompt innovation. This paper provides an overview of the science on aviation's contribution to climate change, analyses the emission intensity improvements that are necessary to offset rising international demand. The findings suggest international aviation carbon dioxide emissions will increase by more than 110 per cent between 2005 and 2025 (from 416 Mt to between 876 and 1013 Mt) and that it is unlikely emissions could be stabilised at levels consistent with risk averse climate targets without restricting demand.

Read on SSRN

Centre: CIPL

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

Creating the Conditions for Cross-Cultural Sensitivity: An Australian Law Dean's Perspective

Author(s):

I do not know how many Law Deans are able successfully to combine the demands of 'deaning' with a regular role in the classroom; I am not one of them. In my first year as a Dean, in the first full flush of optimism and naivety, I did continue to teach: half a compulsory course in Australian constitutional law, a whole elective course on the High Court of Australia, and one-to-one supervision of four honours theses. But it nearly killed me. And I am sure that neither the students nor the law school benefited much from my over-ambitious attempt to be all things to all people. So I resolved to focus on deaning, confining my classroom appearances to occasional celebrity guest spots or emergency rescues.

In thinking, therefore, about effective techniques for teaching about other cultures and legal systems, I want to take a peculiarly decanal perspective. At first sight, this might seem odd; if he does not teach, let alone teach comparative law, what would he know (I hear you say) about effective teaching techniques? Well, in this now familiar International Association of Law Schools (IALS) '3-5 page' format, I thought I would take the opportunity to try to articulate the kind of contribution that might be made to effective teaching about other cultures and legal systems through the leadership role of the Dean, especially in relation to creating the conditions in which this kind of teaching might flourish.

This paper was presented at the International Association of Law Schools, General Assembly and Academic Program, Montreal, Canada, 29-30 May 2008: Effective Techniques for Teaching about Other Cultures and Legal Systems.

Read on SSRN

Centre: CCL

Research theme: Constitutional Law and Theory

Law, History, and the Idea of the High Court

Author(s):

I want to bring a slightly different perspective to those you have heard to this point: a legal perspective, with special reference to the High Court.

Reading through the program, what really struck me was how so many of the issues of history and historiography manifest themselves in the High Court, whether through the way they shape the issues that arise for decision, or in relation to how we see the role and impact of the Court itself as one of our institutions of national government. Just think of these themes in your program: colonialism, federation, national unity, democracy, environmental history, military history, indigenous history, gender issues. I could tell you the story of the High Court (and I must say that I think of history essentially as stories) from any or all of these perspectives: how these issues assume legal form and are pronounced upon by the Court, and how the currents of history themselves sweep through the Court and affect our assessment of it as an institution.

Moreover, the High Court’s own decision-making processes raise all of the familiar questions of historiography: questions of evidence and proof, of fact selection, of interpretation of texts, and so on. Former High Court Chief Justice Sir Anthony Mason will touch on that in the next session – let me first go back a step and say a bit about the some of the differences between law and history.

This paper was presented at the Australian Government Summer School For Teachers Of Australian History Conference, Canberra, Australia, 14-23 January 2008.

Read on SSRN

Centre: CLAH

Research theme:

Australian Legal Procedures and the Protection of Secret Aboriginal Spiritual Beliefs: A Fundamental Conflict

Author(s): Ernst Willheim

The essays in this book explore the intersections between law and religion. When Australian law intersects with Aboriginal religion the outcome is a massive collision. This essay explores that collision, a collision between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians. That collision, or conflict, arises because Aboriginal religions are fundamentally different from mainstream religions. That difference is legally significant. But the dominant legal system has failed to accommodate the difference. In this essay I contend that Australian law has failed to resolve a fundamental conflict between, on the one hand, basic common law values including openness and transparency in public administration, open administration of justice, a legal culture that gives special weight to the protection of private property interests and, on the other hand, Aboriginal religious values, in particular, the secret nature of much Aboriginal religious belief. I further contend that, because Australian law has failed adequately to recognize and to adapt to the secret nature of much Aboriginal religious belief, because common law values particularly principles directed at protection of private property interests prevail, laws enacted for the purpose of protecting Aboriginal religious beliefs have failed to achieve their purpose. The final part of the essay offers suggestions for reform, including mechanisms for protecting the confidentiality of secret spiritual beliefs.

Read on SSRN

Centre: CIPL

Research theme: Indigenous Peoples and the Law

Integrated Research into the Nanoparticle-Protein Corona: A New Focus for Safe, Sustainable and Equitable Development of Nanomedicines

Author(s):

Much contemporary nanotoxicology, nanotherapeutic and nanoregulatory research has been characterized by a focus on investigating how delivery of engineered nanoparticles (ENPs) to cells is dictated primarily by components of the ENP surface. An alternative model, some implications of which are discussed here, begins with fundamental physiochemical research into the interaction of a dynamic nanoparticle-protein corona (NPC) with biological systems. The proposed new model also requires, however, that any such NPC physiochemical research approach should involve integration and targeted collaboration from the earliest stages with nanotoxicology, nanotherapeutical and nanoregulatory expertise. The justification for this integrated approach, we argue, relates not just to efficiency and promotion of innovation but to an acknowledgement that public-funded basic physiochemical research in particular should now be accepted to incorporate strong higher-order public goods elements from its inception, not merely after product development at the technology-transfer stage. Issues, such as university research cooperation, commercialization and intellectual property protection, safety and cost- effectiveness regulatory assessment, as well as technology transfer should not be viewed as second-tier considerations, even in a 'blue sky' NPC basic research agenda.

Read on SSRN

Centre: CIPL

Research theme:

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