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.

Australian Jurisdiction and Whales in Antarctica: Why the Australian Whale Sanctuary in Antarctic Waters Does Not Pass International Legal Muster and is Also a Bad Idea as Applied to Non-Nationals

Author(s): Donald Anton

This article examines the international legality of the projection of Australian adjudicative and enforcement jurisdiction against non-nationals in the Southern Ocean forming part the Antarctic Treaty Area. It sets out the Australian legal foundations on which Australian jurisdiction is currently being exercised for alleged breaches of Australian law applying to the Australian Antarctic Whale Sanctuary in the HSI v. Kyodo case. It then evaluates the exercise of Australian jurisdiction in light of the applicable international law. It accepts arguendo the factual basis of Australia's territorial claim in Antarctica, but nevertheless concludes that the extension of Australian jurisdiction over non-nationals in the purported Antarctic Australian Whale Sanctuary contravenes conventional and customary international law. In light of this conclusion, the article details the nature and importance of the ATS in order to highlight what is at stake by the challenged posed by the assertion of Australian jurisdiction. It then presents reasons why (in addition to illegality) the projection of Australian prescriptive, adjudicative and enforcement jurisdiction in what almost all other states consider the high seas off Antarctica is an unsound idea. The article concludes by arguing that the current Australian law conferring jurisdiction ought to be repealed.

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Memorandum of 6 August 1995 Addressed to President Jacques Chirac Regarding the Resumption of Nuclear Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the "shaming" effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was "irrevocable" almost from the outset, the lawyers hoped to provide a "face-saving" and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that "the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities". Foreign Minister Evans states that "France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm". The Foreign Minister states that "as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll". "This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm," Senator Evans emphasises.

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Letter of 6 August 1995 to President Jacques Chirac Regarding the Resumption of Nuclear Weapons Testing in the Pacific Ocean at Moruroa Atoll

Author(s): Donald Anton

Over 185 international law and environmental law academics and lawyers, from over 40 countries, joined together to challenge the legality of the decision by the French Government to resume nuclear testing at Mururoa atoll in French Polynesia in 1995. The academics and lawyers joined in a letter and legal memorandum that outline international environmental obligations requiring to an effective environmental impact assessment that will be violated if the testing resumes as currently planned. A copy of the letter is reproduced below.

The reasons behind the letter and memo were primarily three-fold. First, the lawyers believed it important that public attention be focused important international environmental obligations that France will be breaching if the tests are carried out as currently planned. No state likes to be known as an international outlaw and the lawyers hoped that the shaming effect of the publicity about law-breaking would have some influence on the decision to resume testing. Due to French claims that protests against the testing were being essentially orchestrated by Australia and New Zealand it was important that the challenge to legality come from an independent group of experts from as many countries as possible. Second, because President Chirac had repeatedly stated that the decision to reverse testing was irrevocable almost from the outset, the lawyers hoped to provide a face-saving and graceful way based on law for the President to reverse his decision. Finally, the lawyers hoped that the arguments raised in the letter and legal memo would influence Australia or New Zealand to reopen the 1973-74 World Court Nuclear Test Cases by providing legal support as to the substance of the matter.

The letter and memo were formally transmitted to French President Jacques Chirac by the Australian Government via formal diplomatic channels. While the Australian Government expressly stopped short of endorsing the totality of the contents of the documents, in a letter to the author Foreign Minister Senator Gareth Evans states that the Government concurs generally with the legal opinion put forward in the memorandum concerning France's responsibilities. Foreign Minister Evans states that France clearly has a duty under international law to prevent transboundary environmental harm, coupled with an obligation to conduct environmental impact assessments when planning to undertake activities which might cause significant environmental harm. The Foreign Minister states that as yet insufficient research has been done to make a comprehensive assessment of the environmental impact of the proposed tests. It is by no means clear that France has fulfilled its international obligations in this regard. We cannot be satisfied on that point until further information is available concerning the environmental impact of the testing at the atoll. This information would also improve our understanding of whether significant transboundary environmental harm may be caused and whether France would be in breach of its obligations to prevent such harm, Senator Evans emphasises.

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Nationalizing Environmental Protection in Australia: The International Dimensions

Author(s): Donald Anton

A national approach to environmental protection is the most effective way for Australia to protect its own environment and to contribute to the common cause of global environmental protection. The centerpiece of this approach should be a federal environmental protection authority (EPA), able to deal with the issues which arise on a transboundary basis, both nationally and internationally. However, the powers of a national agency will need to be tailored to avoid conflict within the system of cooperative federalism in Australia.

This article reviews constitutional tensions between federal and state government as they relate to several of the major international environmental conventions that bind Australia. The authors conclude that a federal authority, committed to enforcing Australia's international agreements to protect the environment, is the most effective means of addressing worldwide concern with the state of the natural world.

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Truth, Justice and the Australian Way About 'Open Standing': Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd

Author(s): Donald Anton

In 1998, the constitutionality of the 'open standing' provisions contained in the Trade Practices Act 1974 (Cth) was directly challenged in the High Court for the first time since their enactment.

This issue came to a head in 1998, when a community group, Truth About Motorways (TAM), brought suit under the TPA against Macquarie Infrastructure Investment Management Ltd (MIIM). TAM was concerned about the publication and distribution of a prospectus produced by MIIM in order to attract investor for units in an investment trust proposing to invest in the construction and private ownership of a toll road in Sydney. TAM alleged that claims made in the prospectus about anticipated volumes of traffic on the road constituted misleading conduct within the meaning of section 52 of the TPA. Significantly, TAM neither claimed a special interest in the subject matter of the dispute nor that it had suffered any loss or damage on account of MIIM's conduct. It relied instead exclusively on the open standing provisions contained in sections 80 and 163A of the TPA. MIIM filed a defence pleading that TAM had no standing to maintain an action against it. MIIM argued that so far as §§ 80 and 163A of the TPA purported to confer standing on TAM they were constitutionally invalid.

In March 2000, the Australian High Court considered MIIM's constitutional claim. The detail of MIIM's argument was succinctly summarized by Chief Justice Gleeson and Justice McHugh in a joint judgment.

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Australian Environmental Law: A Federal Overview

Author(s): Donald Anton

This piece provides a detailed snapshot of national environmental law in 2001. Much has moved on since, but the analysis here was written shortly after the enactment of the first major piece of reform legislation (the Environmental Protection Biodiversity Conservation Act 1999) since the inception of federal environmental legislation in Australia in the early 1970s and to that extent remains relevant.

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International Environmental Law: A Pre-1993 Bibliography

Author(s): Donald Anton

An organized collection of references to pre-1993 primary and secondary sources and authority of International Environmental Law. 20 Chapters, 790 pages.

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Reforming the Law of Environmental Standing and Third Party Appeal Rights in Victoria

Author(s): Donald Anton

This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate.

First, during the recent election strong commitments were made to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government. In the environmental context, it was emphasised that underpinning Labors approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met.

Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd. The High Court held that open standing provisions are beyond any doubt constitutional. More importantly, however, in Truth About Motorways the High Court emphasised that open standing provisions serve salutary public interest purposes in contemporary administrative circumstances.

It seems advisable in such circumstances to seriously the adequacy of the current standing and third party appeal arrangements in Victoria. The need for such a review becomes even more apparent when one discovers, as discussed below, that except in two important but limited circumstances, open standing and third party appeal rights in Victorian environmental law are lacking.

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Legislation to Encourage Renewable Energy Deployment: A Comparative Review

Author(s): James Prest

Increased pressure to implement timely and effective responses to mitigate global warming - arising from the 4th Assessment Report of the IPCC - has underlined the importance of reviewing laws for the deployment of renewable energy (RE). Although debate in Australia has recently advanced towards adoption of more ambitious targets for RE generation, it has focussed largely on laws that create a market in renewable energy certificates (RECS). The Commonwealth mandatory renewable energy target legislation is discussed in light of commitments to expand it to reach a target of 20% of Australia's electricity by 2020. Recent European experience suggests that a commitment to this single strategy could limit the development of the RE industry.

This paper reviews the alternative of Feed-in Tariff (FIT) laws, which require utilities to purchase at a set price the electricity generated by RE generators. In Australia the option of FIT laws has been largely overlooked, with the exception of SA, and with some steps also taken in the ACT, Victoria and Queensland. Yet FIT laws have been adopted by preference in more than 41 jurisdictions overseas. The SA law and the ACT Bill are at threat from promises to "cut red tape" and bring State based targets within a single national scheme.

Review of the European experience suggests that FIT laws have been more effective than RECs laws in three respects: capacity deployment, industry development, and in some cases, price reductions. This suggests that FIT laws should be considered as potentially a more effective means to expand RE generation capacity in Australia.

Given present Federal proposals for the national harmonisation of renewable energy laws, review of the international literature about the comparative effectiveness of various legislative models is vital. State targets are likely to be replaced with a single Commonwealth renewable energy target.

Arguments concerning the compatibility of renewable energy laws with the operation of a national emissions trading system effective from 2010 are considered. It is concluded that RE legislation will be necessary until 2025, contingent on the effectiveness of the carbon trading legislation. Arguments running counter to the proposal by the PM's Task Group on Emissions Trading (2007), that all RE legislation be repealed at Commonwealth and State level are also examined.

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

Toxicological and Public Good Considerations for the Regulation of Nanomaterial-Containing Medical Products

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Increasing research interest in the new and unusual properties of nanotechnology-related pharmaceuticals and medical devices has led to international and national reviews of safety regulation. Significant considerations emerging here are the relative paucity of metrological and toxicological data, as well as the absence of adequate funding and standardized approaches for its acquisition. Some areas are better researched, such as the toxicity of carbon nanotubes and use of engineered nanoparicle titanium and zinc oxides as broad-spectrum ultraviolet-blocking agents. Such in vitro studies do reveal concerns – for example, related to oxidative stress and granuloma formation – but their uncertain clinical ramifications may require more integration in preclinical drug discovery of research characterizing structure–toxicity relationships and limiting safety liabilities. Regulatory considerations for medically related nanoproducts should also involve improving cost-effectiveness systems and ensuring that industry involvement in standard-setting does not become a means of reducing competition. It is also important that nanotechnology policy and regulation encourages new models of safe drug discovery and development that are more systematically targeted at the global burden of disease.

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'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

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Centre: CIPL, CLAH

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

The Gender Trap: Flexible Work in Corporate Legal Practice

Author(s): Margaret Thornton

Despite the fact that women comprise well over 50 per cent of law graduates in many parts of the world, women lawyers continue to be clustered disproportionately in the lower echelons of the profession. This paper considers the role of flexible work as a gender equity strategy and is illuminated by interviews with lawyers in élite corporate firms in Australia. It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships. Not only is there a residual suspicion of the feminine in positions of authority and resistance to the idea of bodily absence from the workplace, the contemporary market discourse has erased a commitment to social justice and equality.

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Centre: CIPL, CLAH

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

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

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In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

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Centre: CCL

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

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

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Centre: CIPL, CLAH

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

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Centre: CIPL, CLAH

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

Australia

Author(s): Donald Rothwell

This is a chapter on Australia for a forthcoming book that will provide a comparative perspective on the role of domestic courts in enforcing treaties. The book will be published by Cambridge University Press.

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Centre: CIPL, CMSL

Research theme: International Law

Regulating Impartiality: Electoral Boundary Politics in the Administrative Arena

Author(s): Ron Levy

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

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

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Centre: CIPL, DGAL

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

State/Territory Human Rights Legislation in a Federal Judicial System

Author(s): James Stellios

The Australian Capital Territory and Victoria have enacted human rights legislation. These legislative schemes empower the respective Supreme Courts to make declarations of inconsistency where legislation cannot be interpreted consistently with legislatively declared human rights. The declarations have no impact on the validity of legislation or on anyone's rights. State and Territory Supreme Courts, however, operate within a federal judicial system, and various constitutional difficulties deriving from Ch III of the Constitution present significant obstacles to the effective operation of these schemes. This article considers these constitutional difficulties and suggests that future State and Territory human rights legislation will have to be designed with these constitutional constraints in mind.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, International Law

Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community

Author(s): Kim Rubenstein

This chapter argues that differing views underpinning the debate about dual citizenship are mirrored in policy discourse about the place of multiculturalism in Australia. Globalization has and continues to have a substantial impact upon legal status and membership and identity in both the nation-state and in the international legal system. These legal changes reflect the shifting notions of membership both in the Australian domestic framework and in the international framework. Moreover, these changes must be taken into account in balancing rights and responsibilities in a diverse society, so that multiculturalism and cultural diversity continue to be affirmed within the legal framework and public policy in the same way dual citizenship has been accepted.

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Centre: CIPL, CLAH

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

Looking for the 'Heart' of the National Political Community: Regulating Membership in Australia

Author(s): Kim Rubenstein

When a community determines who can come into its territory, and who can later become full members, it reflects upon and reaches, in the words of United States academic Linda Bosniak, 'deep into the heart of the national political community, and profoundly affects the nature of relations among those residing within.' Given Australia is fundamentally a nation of people who have at some point relatively recently been outsiders, let in by those who have arrived ahead of them, there is a lot unresolved within the 'heart' of Australia.

In this article, I draw from my work on Australian citizenship to argue that the phenomenon of offshore processing is part of an overall policy that forces outside of the community, and further from citizenship and membership, the 'alien'. It is a product of the Australian constitution which defines who its members are, by who they are not. This is a consequence of a constitution that gives the Commonwealth immense power over 'aliens' - a power that reflects back upon those who are not aliens, and impacts upon the identity of all Australian citizens. Finally, it is a result of a belief by those in power that the state has an absolute right to determine who comes into its borders.

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Centre: CIPL, CLAH

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

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