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.

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.
Centre: CIPL
Research theme: International Law

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'.
Centre:
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.
Centre: CIPL
Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare
Author(s):
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.
Centre: CCL
Research theme: International Law, Law and Technology, Private Law

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare
Author(s):
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.
Centre: CCL
Research theme: International Law, Law and Technology, Private Law

‘As If’ - the Court of Shakespeare and the Relationships of Law and Literature
Author(s): Desmond Manderson
The Shakespeare Moot Court is a form of serious play that inspires participating legal and literary students and professors to think about interdisciplinary in a new way - by doing it. Members of the Court apply their analytical and argumentative skills to the task of creating the law of Shakespeare, tackling matters of public concern such as same-sex marriage, crimes against humanity, and freedom of religion. In the course, senior Law students and graduate students from English team up to argue cases in the “Court of Shakespeare” (where the sole Institutes, Codex, and Digest are comprised by the plays of William Shakespeare). The Court involves students (as counsel) and Shakespeareans and legal scholars (as judges) in a competitive and collaborative form of play whose object is to engage with Shakespeare’s plays in order to render judgments concerning particular contemporary legal problems. In the first part, this essay reflects on critical practice in Shakespeare studies and the argues that the legal model of the moot court offers this practice dimensions of accountability, corrigibility, and temporality which are essential to the future of the critical practice of literary studies. Above all the Shakespeare Moot Court provides a new and necessary way of restoring Shakespeare criticism, or some significant part of it, to the public realm. In the second part, the argument is reversed. The literary conceit of the Shakespeare Moot Project serves to dramatize that literature’s very different orientation offers to the world of law a vital reminder that the question of judgment is always imbricated in the character, experiences, and subjectivity of the judge. This perspective, which was indeed universally understood as integral to the exercise of judgment, whether literary or legal, in Shakespeare’s time, seems in many ways to have been forgotten or sidelined in most modern understandings of law. For the literary theorist, the “privatization” of literature from the late eighteenth century on has obscured its role in public discourse, as the first part argues. For the legal theorist, as the second part argues, the “publicization” of law from the late eighteenth century on has obscured its connection to personal responsibility. The two arguments together demonstrate that the Enlightenment’s project of defining and dividing disciplines - allocating the realm of public action to law and that of private feeling to literature - has come at the cost of the relevance of one and the humanity of the other.
Centre: CLAH
Research theme: Legal Theory

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

The Expanding Role of Process in Judicial Review
Author(s): Greg Weeks
This article examines the state of the law of procedural fairness and procedural error, demonstrating that inadequacy of process is now central to findings that decisions of the Executive are so lacking in quality as to manifest an error of law. The article argues that fairness of outcome and legitimacy of review need not be defined only in relation to the faultlessness of process.
Centre: CIPL
Research theme: Administrative Law

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

Fresh Perspectives on the 'War on Terror'
Author(s):
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.
Centre: CIPL
Research theme:

Legal Regulation of Religious Giving
Author(s): Pauline Ridge
The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.
Centre: CCL
Research theme: Law and Religion, Private Law

Regulating Telecommunications Interception and Access in the 21st Century: Technological Evolution or Legal Revolution?
Author(s): James Stellios
This article reviews the expansion of federal telecommunications interception powers, focusing on the watershed reforms enacted in 2006. The new statutory frameworks governing interception of "live" and "stored communications" are compared and contrasted, with a particular focus on their impact on human rights such as privacy and the fair trial. The article identifies significant regulatory loopholes and deficiencies in this new system, casting doubt on the usefulness of adopting a "balancing" model to guide either macro-level policy development or micro-level decision-making relating to individual warrants.
Centre: CIPL
Research theme: Administrative Law, Constitutional Law and Theory, International Law

Uncertainty and Exclusion: Detention of Aliens and the High Court
Author(s): Matthew Zagor
In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.
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

Sedition, Security and Human Rights: 'Unbalanced' Law Reform in the 'War on Terror'
Author(s): James Stellios
This article provides a review of the history, structure and form of the law of sedition, focusing on the new provisions inserted into the Criminal Code Act 1995 (Cth) in 2005 as part of a wider counter-terrorism package. A short historical review of sedition in Australia is followed by a critical analysis of the new offences, which explores the constitutional and human rights implications of these new offences. Critical attention is given to the process of law reform that seeks to 'balance' security and human rights, focusing on the recommendations of the Australian Law Reform Commission which emerged from the retrospective review of the 2005 reforms. Our conclusion is that the 'balanced' model endorsed by the Australian Law Reform Commission produces incoherence in relation to the definition of offences and 'good faith' defences. In particular, incoherence is produced by definitions of offences that are over-inclusive or under-inclusive depending on the rationale (security or human rights) which is accorded priority.
Centre: CIPL
Research theme: Administrative Law, Constitutional Law and Theory, International Law

The High Court's Conception of Discrimination: Origins, Applications, and Implications
Author(s):
In constitutional settings, the High Court has grown attached to a particular conception of discrimination that is notable for its abstractedness and purported universality. This article explores that conception, tracing its evolution and its permeation of the Court's constitutional jurisprudence. It argues that this 'universal' conception of discrimination, while it does mandate certain limited content, cannot provide guidance upon some of the most significant questions confronting judges when shaping constitutional non-discrimination rules.
Centre: CIPL
Research theme: Constitutional Law and Theory

Looking Beneath the Surface: The Impact of Psychology on Corporate Decision Making
Author(s):
This article discusses some of the most common ways in which business decisions are affected by cognitive biases. It focuses on the individual level of decision making and discusses how biases are deeply entrenched in the way many decisions are made. It also discusses how flaws in decision making can escalate when executives are under pressure, over-confident or part of a group.
The article argues that we need to develop a better understanding of the effect of cognitive biases on executive decision making. Whilst research suggests that many aspects of our decision making processes operate outside of our conscious awareness, it is suggested that these flaws may be easier to monitor and control when we are aware of their potential impact on corporate decisions.
Centre: CCL
Research theme: Regulatory Law and Policy

Council Officer Prosecuted for Biodiversity Offences: Garrett v. Freeman
Author(s):
Analysis of recent series of litigation involving questions of potential criminal liability for environmental offences under New South Wales law of damage to the habitat of threatened species. Prosecution sought to apply the criminal law to the actions of a public official, a local government public works officer.
Centre: CCL
Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Using Federalism to Protect Political Communication: Implications from Federal Representative Government
Author(s): James Stellios
The recognition of the implied freedom of political communication has been the subject of much controversy. Although a unanimous Court in Lange v Australian Broadcasting Corporation identified the textual basis for the implication, there continues to be significant uncertainty as to the nature and scope of the freedom. This article seeks to provide an alternative constitutional foundation for protecting political communication, which focuses on the way in which representative government has been accommodated within the federal structure of government. In doing so, it attempts to provide a firmer constitutional foundation for the protection of political communication.
Centre: CIPL
Research theme: Administrative Law, Constitutional Law and Theory, International Law

Chair of the Citizenship Council
Author(s):
This chapter appears in a collection honouring Sir Ninian Stephen, former Australian High Court Judge and Governor General. The chapter examines Sir Ninian's contributions to citizenship law in both a domestic and international context. Indeed, the chapter straddles both aspects of this book's division: Sir Ninian's domestic and international contributions. It begins by concentrating upon his Australian contributions in this field and then moves on to reflect in particular on his judgment in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Proscecutor v Dusko Tadic, which had important statements about nationality in an international humanitarian law context. As I too am interested in both jurisdictions, the chapter reflects upon the contrasts and similarities of Sir Ninian's contribution to those different jurisdictions and what they may tell us about Sir Ninian's framework for thinking about citizenship. In doing so, it is my contention that Sir Ninian is a role model to all seeking to be cosmopolitan citizens in an ever increasingly connected world.
Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Migration and Movement of Peoples

Reintroducing a Criminal Jury in Japan: Reform Lessons for Us All?
Author(s):
This paper overviews Chief Justice Spigelman's suggestion that NSW criminal jurors consult sentencing judges and give views on sentence before those judges pass sentence. This form of lay participation in criminal justice is compared and contrasted to the new Japanese mixed court system (the saiban-in seido, operational by May 2009).
Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples