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 Bald Hills Wind Farm Debacle
Author(s): James Prest
This Chapter describes the decision making of the former Commonwealth Environment Minister, Senator Ian Campbell, to refuse an application for approval of a large wind farm development under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The rejection of the Bald Hills wind farm was remarkable because the reason given for this decision to veto a renewable energy project promising considerable abatement of greenhouse emissions was to avoid the threat it was said to pose to the critically endangered orange-bellied parrot. The decision took participants in the wind energy industry by surprise. Other wind farms which had been subject to Commonwealth approval requirements had met little delay or obstruction.
The Chapter argues that the Bald Hills story says much about the Australian response to climate change. It provides a case study of Commonwealth decision making about a project with potential to reduce significant amounts of greenhouse gas emissions, in a situation where these benefits were juxtaposed with potential impacts on threatened biodiversity. It prompts many questions about the [former] Howard government’s legal and policy approach towards the energy supply challenges posed by climate change.
The Bald Hills story is best understood if we look beyond detailed scrutiny of the assessment process under Victorian and Commonwealth law, to review it in the broader landscape of recent decisions and policy regarding renewable energy. Crucial aspects of this context include the Federal government’s decision not to expand the Mandatory Renewable Energy Target, as well as Ministerial attempts to block the Denmark community wind farm in Western Australia, and the proposal for a National Code for Wind Farms which would have introduced additional scope for the Commonwealth to scrutinise wind energy because of local opposition. This context gives a more complete picture of recent Commonwealth decision making on renewable energy.
What does the Bald Hills incident tell us about the present state of climate law in Australia, particularly at the Commonwealth level? While the government desires to present the EPBC Act as “a world-class and innovative piece of environmental legislation”, a law that “has established Australia’s place as a world-leader in environmental legislation” the barest review of the EPBC Act indicates that it does little to directly tackle the question of climate change. The Bald Hills incident is just one illustration. In particular, it draws our attention to the fact that the EPBC Act does little to promote sustainable development by encouraging renewable energy installations. In terms of greenhouse gas abatement, the Act does nothing to require a decision maker to consider the positive benefits of a development. In fact, at present, it prohibits a decision maker from taking into account positive environmental benefits of a development. In deciding whether or not to approve a project that is subject to the Act, the Minister is specifically prohibited from considering any matters other than the controlling provision and the catch-all of “economic and social factors”. (see s.136(5)). Thus nothing in federal planning law exists to ensure that the benefits of renewable energy facilities in terms of greenhouse gas abatement are taken into account in the approval decision making process. Surely we must ask whether the EPBC Act is adequate given present scientific information and modelling about the consequences of overly cautious responses to climate change.
The Bald Hills incident also illustrates the broad discretion available to the Environment Minister in making decisions under the EPBC Act. Questions were raised about the impact of the proposed wind farm on endangered species. The problem is not that the Act enabled the Minister to examine the potential risk to the orange-bellied parrot. The argument is not that all projects with potential to reduce greenhouse emissions should be approved, regardless of their impact on threatened biodiversity. However the flaw in the Minister’s decision making was that an extremely remote possibility of significant impact on a threatened bird - the orange bellied parrot - was given weight out of all proportion to its true significance.
The difficulty is with politicisation of the planning and environmental approval decision-making process. Nevertheless, the court outcome, in which the matter was settled by consent, due to the weakness of the Minister’s position shows that inappropriate ministerial decision-making can in some cases be constrained by resort to the administrative law system. In this instance, review in the Federal Court was effective in having politicised decision-making overturned. The story underlines the need to retain access to the courts to litigate to ensure compliance with the law in administrative decision making. The EPBC amendments of December 2006 which removed pro-participation provisions, reintroducing the probability that third party litigants could be required to provide an undertaking as to damages when seeking an injunction, represent the reintroduction of a barrier that would prevent access to the courts to review suspect decision making.
The Bald Hills incident raises broader questions about the adequacy of Australian government’s legislative response to climate change. Energy law does not exist in a political vacuum. It articulates the policy intentions of the legislature and the government which dominates it. The range of Ministerial comments about wind power, when combined with Senator Campbell’s comments to the Estimates Committee reproduced at the beginning of this chapter, indicate the Howard government’s indifferent, ambivalent and at times antagonistic approach towards renewable energy. In Australia, we have only moved very slowly towards the introduction of a body of sustainable energy law.
Centre: CIPL
Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy
Researching Safety and Cost-Effectiveness in the Life Cycle of Nanomedicine
Author(s):
Nanotechnology is rapidly emerging as a transformational influence on many industry sectors. This is particularly true of medicines and medical devices. This article argues that, as policy interest in devising an appropriate regulatory framework for nanotherapeutics escalates, it will be important for public health to ensure that a broad life-cycle approach to both safety and cost-effectiveness is adopted. It charts some of the most important issues likely to be faced and begins to map how they can best be addressed.
Centre: CIPL
Research theme:
Nanotechnology in Global Medicine and Human Biosecurity: Private Interests, Policy Dilemmas and the Calibration of Public Health Law
Author(s):
This paper links the opportunity to assist the development of a well-reasoned theoretical underpinning for nanotechnology regulation, to a review of the process by which most global health policy develops by default in an institutional environment heavily influenced by private interests. It focuses on two areas of particular significance to global public health: nanotechnology in medicine and human biosecurity.
It would be reasonable to suppose that dilemmas posed to public health and human biosecurity policy by increasing advances in practical applications of nanotechnology should initially be answered by reference to statistical evidence of the global burden of disease, or international agreements about rational threat assessments which then flow into the transparent development of norms that are fair and universally applicable. Yet this rational approach to health law and policy development is not at all characteristic of the field. Globally, medicinal and human biosecurity policy, both in general and in relation to nanotechnology, continue to be strongly influenced by the sophisticated lobbying of private interest groups from a few economically powerful countries. The governments of such nations characteristically express concern that agreeing to binding, universally-applicable international standards in these areas would compromise sovereignty over their own public health and security systems. Their political oligarchies, however, readily acquiesce to corporate funding of regulators, to industry positions on regulatory and policy development committees, to the tacit policy obligations resulting from corporate donations and to a personally lucrative but ethically compromising ‘revolving-door’ employment system between government, the bureaucracy and private sector.
This article proposes to discuss a particular approach to these challenges to norm creation in the context of some concrete examples that show the significance of what is at stake: (1) conflicts of interest in ensuring public safety (2) private exploitation of public-funded research (3) inequities in expenditure of public funds, and (4) diminishing public confidence in government and science.
It argues, with reference to these types of global policy dilemmas, that a better balance of private and public interests in such areas will be achieved in the long term by an international normative standard requiring that the development of relevant public health law and policy be consistent with norms issuing from bioethics and international human rights. It aims to demonstrate some practical policy outcomes from this approach and concludes by weighing arguments against it.
Centre: CIPL
Research theme:
'Linkage' Pharmaceutical Evergreening in Canada and Australia
Author(s):
‘Evergreening’ is not a formal concept of patent law. It is best understood as a social idea used to refer to the myriad ways in which pharmaceutical patent owners utilise the law and related regulatory processes to extend their high rent-earning intellectual monopoly privileges, particularly over highly profitable (either in total sales volume or price per unit) ‘blockbuster’ drugs. Thus, while the courts are an instrument frequently used by pharmaceutical brand name manufacturers to prolong their patent royalties, ‘evergreening’ is rarely mentioned explicitly by judges in patent protection cases. The term usually refers to threats made to competitors about a brand-name manufacturer’s tactical use of pharmaceutical patents (including over uses, delivery systems and even packaging), not to extension of any particular patent over an active product ingredient. This article focuses in particular on the ‘evergreening’ potential of so-called ‘linkage’ provisions, imposed on the regulatory (safety, quality and efficacy) approval systems for generic pharmaceuticals of Canada and Australia, by specific articles in trade agreements with the US. These ‘linkage’ provisions have also recently appeared in the Korea-US Free Trade Agreement (KORUSFTA). They require such drug regulators to facilitate notification of, or even prevent, any potential patent infringement by a generic pharmaceutical manufacturer. This article explores the regulatory lessons to be learnt from Canada’s and Australia’s shared experience in terms of minimizing potential adverse impacts of such ‘linkage evergreening’ provisions on drug costs and thereby potentially on citizen’s access to affordable, essential medicines.
Centre: CIPL
Research theme:
Whistleblowing and Scientific Misconduct: Renewing Legal and Virtue Ethics Foundations
Author(s):
Whistleblowing in relation to scientific research misconduct, despite the benefits of increased transparency and accountability it often has brought to society and the discipline of science itself, remains generally regarded as a pariah activity by many of the most influential relevant organizations. The motivations of whistleblowers and those supporting them continued to be questioned and their actions criticised by colleagues and management, despite statutory protections for reasonable disclosures appropriately made in good faith and for the public interest. One reason for this paradoxical position, explored here, is that whistle blowing concerning scientific misconduct lacks the policy support customarily derived from firm bioethical and jurisprudential foundations. Recommendations are made for altering this situation in the public interest.
Centre: CLAH
Research theme: Human Rights Law and Policy
Reference Pricing for Pharmaceuticals: Is the Australia - United States Free Trade Agreement Affecting Australia’s Pharmaceutical Benefits Scheme?
Author(s):
Amendments to the National Health Act 1953 (Cwlth) were legislated by the Australian federal government in 2007 with minimal public debate. The National Health Amendment (Pharmaceutical Benefits Scheme) Act 2007 includes several changes that will limit reference pricing under the Australian Pharmaceutical Benefits Scheme (PBS). Here, I argue that these amendments were influenced by the Australia–United States Free Trade Agreement (AUSFTA) particularly the Medicines Working Group established under Annex 2C of that agreement. I make the case that such amendments could have adverse consequences, involving the erosion of scientific objectivity and equity in PBS processes.
One concern is that the amendments might lead to policy choice being delegated to technical experts in finance, or working groups with private interests, rather than being made part of a systematic public debate about the kind of health care system all Australians want to have, and the trade-offs they are prepared to make against strategic objectives of trade or international public policy.
Centre: CIPL
Research theme:
Personal Property Securities Reform
Author(s): James Popple
The Australian Government, together with the governments of the Australian states and territories, is undertaking reform of the law of personal property securities.
PPS law in Australia is currently very complex, and varies according to: the location and nature of the collateral; the nature of the security interest; and the legal personality of the debtor.
The objectives of PPS reform are to increase legal certainty by increasing consistency and reducing complexity, which should lead to reduced costs.
At present, the application of PPS law to a transaction generally depends on the legal form of that transaction. The new PPS system will be based on a functional approach, looking to the substance of a transaction.
The intention is that, subject to countervailing policy considerations, all security interests will be treated the same as far as is possible, with all PPS interests registered in one place, and subject to one Act. Several significant policy issues, which will need to be resolved during the development of the new PPS legislation, are identified.
Centre: CIPL
Research theme:
Regulatory Design for Scientific Uncertainty: Acknowledging the Diversity of Approaches in Environmental Regulation and Public Administration
Author(s): Judith Jones
Environmental regulatory design addresses scientific uncertainty through a range of regulatory design tools. The seven approaches identified and considered in this article are termed (1) the acknowledgement of scientific uncertainty (2) the burden shifting approach (3) the sound science approach (4) the consequences approach (5) the consensus approach (6) the estimation approach and (7) the adaptive management approach. Analysis of some common environmental legislative frameworks suggests that, rather than occurring in isolation, these seven approaches are frequently incorporated into legislative regimes in a multitude of combinations. The article also highlights the implications of expressly embedding a precautionary approach within pre-existing environmental regulatory frameworks, such as has occurred within Australian environmental regimes. Finally, the article explores the advantages and disadvantages of each approach and the various circumstances that favour the adoption of a particular regulatory approach to scientific uncertainty. In doing so, it suggests an agenda for future empirical research on approaches to regulatory design for scientific uncertainty.
Centre: CLAH
Research theme:
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?
Centre:
Research theme: Environmental Law
Looking Beneath the Surface: The Impact of Psychology on Corporate Decision Making
Author(s): Kath Hall
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): James Prest
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
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
The High Court's Conception of Discrimination: Origins, Applications, and Implications
Author(s): Amelia Simpson
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
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
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
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
Chair of the Citizenship Council
Author(s): Kim Rubenstein
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
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
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.
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): Mark Nolan
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
