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.

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

Read on SSRN

Centre: CIPL, CLAH

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

Judicial Selection: Trust and Reform

Author(s): Ron Levy

The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Read on SSRN

Centre: CIPL, DGAL

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

Environmental Conflict Resolution: Relational and Environmental Attentiveness as Measures of Success

Author(s): Tony Foley

When evaluating the success of environmental conflict resolution (ECR), the use of traditional measures of success, such as agreement counting and participant satisfaction surveys provide an incomplete picture. This article proposes two measures to evaluate ECR in terms of both process and outcome: Is the process transformative of the participants? Is the process designed to be attentive to environmental outcomes?

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH

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

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.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

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

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, The Legal Profession

Tendering for Low Cost Generics in Australia

Author(s):

An Australian federal government committee recently proposed, as a cost-saving measure, the introduction of sealed-bid competitive tendering to exclusively supply the Pharmaceutical Benefits Scheme (PBS) with specific generic medicines. A similar plan involved an open tender to supply generic products below a government set price, also linked with a reduced patient co-payment as an incentive. These proposals represented an opportunity to encourage the price of generic pharmaceuticals to move closer to the marginal cost of production - a process that could be subsequently applied to innovative (or brand-name) patented medicines in a therapeutic class with many competitors. This article examines these tendering proposals, particularly in relation to the potential for increased involvement of generic pharmaceutical manufacturers in the Australian market. Centralised purchasing through tendering for specific generic products has many potential advantages for the PBS;

It would: • allow the PBS system to use cost-effectiveness evaluation linked with their power as largely the sole buyer of medicines in Australia to leverage lower prices; • make prices paid to manufacturers (and other suppliers) more transparent; • give manufacturers (and other suppliers) enhanced certainty over demand than current fluctuating arrangements with wholesalers; • create a negotiating lever to facilitate entry of new generic manufacturers into a more competitive market; • reduce the likelihood of “actual” and “artificial” (“speculative”) supply shortages and facilitate longer and more efficient production runs; • reduce price fluctuations; and • open the door to tendering for innovative products where numerous competitors exist in a therapeutic class. A key benefit of the tendering mechanism is that it will provide a good means for the government and its cost-effectiveness evaluators to gain an understanding of the marginal cost of production for specific PBS-listed medicines. This would be especially true if PBS tenders were in the form of first-price sealed-bid auctions, in which bidders provide a secret bid.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

We Are What We Write

Author(s):

Ever since I published my first legal article in 1969 – of all places, in the Jaipur Law Journal, published by the University of Rajasthan – I have spent my professional life writing. The writing seems to have been passable enough: my first book won a prize; my second book says on the back cover that I am ‘a master of English prose’ (though I may have written that myself); and my most recent book – as I proprietorially and presumptuously call the multi-authored Oxford Companion to the High Court of Australia – received widespread acclaim for its hidden treasures and subtle pleasures. Yet I have never before been publicly introspective about it. This is the first time I have been asked to share my thoughts on the art of legal writing.

Read on SSRN

Centre: CLAH

Research theme: The Legal Profession

On Building a Successful Career as an Academic Lawyer

Author(s):

I find myself in an ironic position this afternoon. This morning I was supposed to be a commentator on the keynote address, but pretty much gave my own independent perspective on legal knowledge and lawyers’ responsibilities. This afternoon I am supposed to give my own independent perspective on building a successful career as a legal academic, yet I find myself so stimulated by Ros Croucher’s paper that I can’t resist falling into the role of being a commentator on it. You might think that this is another example of the tensions and dilemmas I spoke about this morning. I rather think it is an example of my perverse streak, which actually launched me on my academic career, when, 35 years ago, against all advice, I forsook the US and the UK and took off to India for postgraduate study. But perhaps more of that later. I say perhaps because, despite Paul Moyle’s dangerous invitation to Ros and me to reflect on our personal experiences, I don’t want to cross the line into total self-indulgence.

Read on SSRN

Centre:

Research theme: Legal Education, The Legal Profession

Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools

Author(s):

A former colleague of mine recently asked me whether being Dean left me time for any serious legal research and writing. Putting aside any question of intellectual impairment caused by decanal duties, and assuming also that one is on the right side of that well-known equation in which accumulated experience keeps one just ahead of one’s biological decline, I mentioned that I had gravitated to shorter, more reflective pieces. In particular, I had just written a piece of extreme brevity - only a page and a half of printed text - with which I was nevertheless very pleased. It explored the phenomenon of deep antinomies in the law, particularly the tension between the concept of law as an autonomous body of knowledge and the notion of law as comprehensible only by reference to its context, especially its political, social, economic, and historical context. He said to me, ‘Why am I not surprised? The theme of all of your writing seems to be the irreconcilable tension between competing ideas!’

Read on SSRN

Centre:

Research theme: The Legal Profession

A Critical Analysis of Overseas-Trained Doctor ('OTD') Factors in the Bundaberg Base Hospital Surgical Inquiry

Author(s):

This article explores one of the most intriguing and hitherto largely unexplored aspects of healthcare quality and safety investigations in Australia: the role of a protagonist's status as an overseas-trained doctor ("OTD"). The topic is controversial, not the least because of the growing importance of OTDs in maintaining basic health services in some areas of Australia, but also due to the difficulty of teasing genuine quality and safety problems in this context from possible racial or xenophobic concerns. As a case study, we will explore the problems associated with Dr. Jayant Patel at the Bundaberg Base Hospital ("BBH") in Queensland.

It is now well known that Toni Hoffman, Nurse In Charge of the Intensive Care Unit at the Bundaberg Base Hospital ("BBH"), "blew the whistle" on Dr. Patel. Before this, Dr. Patel had practised as Director of Surgery at the BBH for two years, commencing in April 2003. Ms. Hoffman maintained that during Dr. Patel's time at the BBH, she raised concerns about his practice and competence with at least twelve parties, including hospital staff, administration and management, Queensland Health administrators, the coroner and police, without result. Ms. Hoffman has revealed that she and other BBH staff were so concerned about Dr. Patel's apparent incompetence that they hid patients from him.

The Patel case highlights that healthcare policy makers and regulators need to be aware of the distinct quality and safety problems raised by OTD status. Just as the major failure in paediatric cardiac surgery at the Bristol Royal Infirmary was "a powerful political lever for change" in the United Kingdom, the events at Bundaberg must be the catalyst for long-overdue reform to the way that OTDs are dealt with in the Australian healthcare system.

Read on SSRN

Centre: CIPL

Research theme: International Law

The Trans-Tasman Therapeutic Products Authority: Potential AUSFTA Impacts on Safety and Cost-Effectiveness Regulation for Medicines and Medical Devices in New Zealand

Author(s):

Australia and New Zealand had agreed in principle to the creation of a single agency for the regulation of pharmaceuticals and other therapeutic products in a trans-Tasman market. The Australia New Zealand Therapeutic Products Authority ("ANZTPA") was being developed to replace both the Australian Therapeutic Goods Administration ("TGA") and the NZ Medicines and Medical Devices Safety Authority ("Medsafe"). The agreement was cancelled in 2007. This article explores the possibility that the ANZTPA in its original form, by inheriting significant 'linkage evergreening' obligations imposed on the TGA under the Australia-United States Free Trade Agreement ("AUSFTA"), may significantly impact upon the regulation of medicines and medical devices (as well as blood products) in New Zealand. It explores the related legal obligations and their likely consequences for New Zealand, particularly quality, safety and efficacy and cost-effectiveness evaluation processes in this area, such as those of The New Zealand Pharmaceutical Management Agency ("Pharmac").

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Tendering for Low Cost Generics in Australia

Author(s):

An Australian federal government committee recently proposed, as a cost-saving measure, the introduction of sealed-bid competitive tendering to exclusively supply the Pharmaceutical Benefits Scheme (PBS) with specific generic medicines. A similar plan involved an open tender to supply generic products below a government set price, also linked with a reduced patient co-payment as an incentive. These proposals represented an opportunity to encourage the price of generic pharmaceuticals to move closer to the marginal cost of production - a process that could be subsequently applied to innovative (or brand-name) patented medicines in a therapeutic class with many competitors. This article examines these tendering proposals, particularly in relation to the potential for increased involvement of generic pharmaceutical manufacturers in the Australian market. Centralised purchasing through tendering for specific generic products has many potential advantages for the PBS;

It would: • allow the PBS system to use cost-effectiveness evaluation linked with their power as largely the sole buyer of medicines in Australia to leverage lower prices; • make prices paid to manufacturers (and other suppliers) more transparent; • give manufacturers (and other suppliers) enhanced certainty over demand than current fluctuating arrangements with wholesalers; • create a negotiating lever to facilitate entry of new generic manufacturers into a more competitive market; • reduce the likelihood of “actual” and “artificial” (“speculative”) supply shortages and facilitate longer and more efficient production runs; • reduce price fluctuations; and • open the door to tendering for innovative products where numerous competitors exist in a therapeutic class. A key benefit of the tendering mechanism is that it will provide a good means for the government and its cost-effectiveness evaluators to gain an understanding of the marginal cost of production for specific PBS-listed medicines. This would be especially true if PBS tenders were in the form of first-price sealed-bid auctions, in which bidders provide a secret bid.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Potential Impact of AUSFTA on Australia’s Blood Supply

Author(s):

Australia is largely self-sufficient in its supply of safe, fresh blood products because of the goodwill of non-remunerated, volunteer donors, plus rigorous testing and processing standards. Australia, under the National Blood Agreement, has a policy of “self-sufficiency” in fresh blood and plasma products. The policy refers to effort rather than outcome, with self-sufficiency defined as “striving to meet clinical demands using local product”. In recent years, increasing amounts of plasma- derived and recombinant products have been imported (with limited policy debate). However, for the most part, plasma products continue to be derived from Australian donations and processed in Australia.

Whole blood, plasma and platelets from non-remunerated, volunteer donors are collected by the Australian Red Cross Blood Service, and tested for HIV, hepatitis B and C, HTLV-1 and -2, syphilis, and for cytomegalovirus (to protect recipients with immune deficiencies).

On 1 January 2005, the Australia-United States Free Trade Agreement (AUSFTA) came into force.4 A side letter to this agreement opens the way for the importation of blood and plasma-derived products to increase considerably above current levels.

In this article, we raise several specific concerns relating to AUSFTA and the safety, quality, and security of supply of Australia’s blood and plasma products. We also argue that AUSFTA creates additional uncertainties by increasing the potential for policy lobbying based on the threat of so-called “non-violation nullification of benefits” disputes, although we maintain these must be restricted to unambiguous textual obligations. Off-shore fractionation could compromise the safety of Australia’s blood supply through delays in processing and transportation, issues related to quality control, and even the siphoning of stock to overseas markets.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

Toward a Treaty on Safety and Cost-Effectiveness of Pharmaceuticals and Medical Devices: Enhancing an Endangered Global Public Good

Author(s):

Expert evaluations of the safety, efficacy and cost-effectiveness of pharmaceutical and medical devices, prior to marketing approval or reimbursement listing, collectively represent a globally important public good. The scientific processes involved play a major role in protecting the public from product risks such as unintended or adverse events, sub-standard production and unnecessary burdens on individual and governmental healthcare budgets.

Most States now have an increasing policy interest in this area, though institutional arrangements, particularly in the area of cost-effectiveness analysis of medical devices, are not uniformly advanced and are fragile in the face of opposing multinational industry pressure to recoup investment and maintain profit margins.

This paper examines the possibility, in this context, of States commencing negotiations toward bilateral trade agreement provisions, and ultimately perhaps a multilateral Treaty, on safety, efficacy and cost-effectiveness analysis of pharmaceuticals and medical devices. Such obligations may robustly facilitate a conceptually interlinked, but endangered, global public good, without compromising the capacity of intellectual property laws to facilitate local product innovations.

Read on SSRN

Centre: CIPL

Research theme: Health, Law and Bioethics

The Psychology of Corporate Dishonesty

Author(s): Kath Hall

Despite the large amount of literature that has been written over the last 30 years on the regulation of corporate misconduct, relatively little attention has been addressed to developing a detailed understanding of the human element of corporate dishonesty. Corporations are not by themselves dishonest. Their dishonesty comes from the decisions and actions of individuals within the organization. Yet, important questions on what affects individuals in their decision-making on dishonesty have received limited scholarly attention. This article assists in addressing this gap by developing a psychologically informed perspective on the problem of corporate dishonesty. Drawing on a range of literature from cognitive and organizational psychology, it argues that we need to understand well behaviors that we seek to regulate well. All regulation rests on assumptions and predictions about human behavior. If we do not accurately recognize the factors that affect decision-making on corporate dishonesty, we are poorly equipped to design regulation that influences this behavior.

Read on SSRN

Centre: CCL

Research theme: Private Law

Rethinking Nationality in International Humanitarian Law

Author(s): Kim Rubenstein

Nationality has been central to law's understanding of membership. Moreover, the formal legal relationship between the individual and the state is that of citizenship - or nationality. However, as this chapter argues, various forces in the international context, including globalisation and the contrasting phenomena of fragmentation, express tensions besetting traditional notions of state membership in an international framework.

This chapter begins by looking at some of the issues underpinning the larger question of the role of nationality in humanitarian law. It then explores those questions in the context of the former Yugoslavia and in particular through the judgment of the War Crimes Tribunal for the Former Yugoslavia in the case of Tadic. It argues that nationality should not necessarily be a determinative factor when applying humanitarian law.

Read on SSRN

Centre: CIPL, CLAH

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH

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

The New Corporate Law

Author(s): Stephen Bottomley

Corporate social responsibility is back on the corporate law reform agenda. From an Australian perspective, the evidence for this is found in the simultaneous but separate inquiries that, at the time of writing this paper, are being conducted into this topic by the Australian Parliament's Joint Committee on Corporations and Financial Services, and by the Australian Government's Corporations and Markets Advisory Committee (CAMAC). These developments are supported by the many standards, guidelines, principles, and codes promulgated by non-government bodies, industry groups and other international organisations.

Cynics might dismiss these developments as part of a regular cycle of corporate law reform. After all, as we will see, this is not the first time that corporate social responsibility has appeared on the reform agenda. Others might suggest that, finally, this is an idea whose time has come. The purpose of this paper is to examine the extent to which this renewed, and widespread, attention to corporate social responsibility is being reflected in the substance of our systems of corporate law. Is it possible, and meaningful, to talk of a 'new corporate law' in which the concerns of people other than shareholders (or, indeed, the non-financial concerns of shareholders) are to be given serious attention?

The plan of the paper is as follows. We begin with a brief survey of recent developments in different common law jurisdictions, with an emphasis on Australia, that have implications for the idea of corporate social responsibility. The focus here is not just on statutory developments, but also on the wider array of codes, guidelines and so on that were adverted to earlier. From this base, we then draw and elaborate upon two conclusions. The first is that the shareholder primacy model continues to exert a powerful, although sometimes misunderstood, effect on the capacity of legislators to respond to corporate social responsibility concerns. In particular, it has the potential to constrain the actions of directors in responding to those concerns, it constrains the power of shareholders to put these concerns in front of the board, and it constrains the capacity of non-shareholders to bring these concerns to the attention of company managers. The second conclusion is that much of the action regarding corporate social responsibility therefore occurs outside the parameters of the statutes, and it is in this sense that we can talk about a 'new corporate law': a system of corporate regulation that depends as much on (if not more on) non-statutory mechanisms and methods, which in many cases can have a more immediate impact on corporate operations. The final part of the paper examines some of these themes in more detail, by way of a 'case study' of the position of corporate employees. Whatever definition one takes of corporate social responsibility, it is undeniable that the financial and physical well-being of a company's employees must be a central concern. Recent corporate collapses and policy responses to them in Australia provide a stark illustration of the limited extent to which corporate law has been able to respond to the challenges of corporate social responsibility.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Essay Review: Final Test and Class and Schools

Author(s): Molly Townes O'Brien

This essay reviews two recent books that explore contemporary efforts to close the American black/white educational achievement gap. In Final Test: The Battle for Adequacy in America's Schools, Peter Schrag chronicles on-going efforts to enlist the power of the courts to effect equal educational opportunity through court-ordered remedies. Richard Rothstein, in Class and Schools: Using Social, Economic and Educational Reform to Close the Black-White Achievement Gap, looks to social science, educational and social reform for potential solutions to the problem. The essay suggests that neither litigation nor educational reform is sufficient to provide universal access to high quality education in the U.S. Broad social reform and sustained effort in both the courts and the legislatures are required.

Read on SSRN

Centre: CIPL

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

Pages

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