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.

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

The Class Action as Sheriff: Private Law Enforcement and Remedial Roulette

Author(s): Peta Spender

This essay will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.

The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.

This argument will be examined by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.

The overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practised in law firms and in the courts.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Litigating Questions of Quality

Author(s): Greg Weeks

There are some grounds of judicial review which inherently lead the court to consider questions of the quality of the decision-maker’s decision. The most prominent of these are review for Wednesbury unreasonableness and S20/2002 irrationality or illogicality. These grounds of review require careful application to avoid reviewing the merits of a case. The Australian Retailers case demonstrates another difficulty with quality review – that of what detail should be allowed in the evidence both supporting and rebutting the alleged error of law. This article provides a brief examination of the nature of quality review, followed by an examination of the approach used by Weinberg J in Australian Retailers. The article also suggests a method by which judicial review for issues of quality can serve its intended purpose – to catch rare and absurd decisions – without becoming unduly time-consuming or, worse, degenerating into merits review.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Here I Am: Illuminating and Delimiting Responsibility

Author(s): Desmond Manderson

The ethics of Emmanuel Levinas and the law of negligence are in many ways surprisingly well-suited. Levinas offers a sustained meditation on the relationship of ethics, responsibility and justice, and he does so using precisely the language of the duty of care, of neighbourhood, and of proximity. ‘Perhaps because of current moral maxims in which the word neighbour occurs, we have ceased to be surprised by all that is involved in proximity and approach.’ Here then is a philosopher, largely unknown to doctrinal legal theory, who at last speaks the language of torts. This paper seeks to explore the connection between Levinas and doctrines of care and responsibility in the common law, struggling in particular with the relationship between ethics and law or politics, between the unlimited responsibility canvassed by Levinas and the necessity for limitation and definition embedded in legal forms.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Commonwealth Power Over Infrastructure: Constitutional Tools for National Economic Regulation

Author(s): Fiona Wheeler

This paper considers the extent of the Commonwealth’s power under the Australian Constitution to make laws regulating economic infrastructure such as transport, communications and energy. In this context, the external affairs power in s 51(xxix) of the Constitution, the communications power in s 51(v), the corporations power in s 51(xx) and the interstate and overseas trade and commerce power in s 51(i) are all addressed. The High Court’s strongly nationalist approach to constitutional construction, most recently affirmed in 2006 in its expansive reading of the corporations power in the Work Choices Case, means that the Commonwealth has very substantial, though not unlimited, authority to deal with infrastructure regulation. While the prospect of a wider reading of the interstate and overseas trade and commerce power may further augment Commonwealth authority in this area, gaps in Commonwealth regulatory power are still likely to remain.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

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, 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 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

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

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:

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:

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

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:

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:

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:

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:

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:

Pages

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