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.

National Security Intelligence and Ethics

National Security Intelligence and Ethics

Editor(s): David Letts, Seumas Miller, Mitt Regan, Patrick F. Walsh

Associate Professor David Letts AM CSM has authored a chapter, 'Intelligence sharing among coalition forces', that appears in National Security Intelligence and Ethics (Routledge, 2021). Since the end of World War II, there have been numerous examples of coalition operations involving two or more military forces, including some operations that have been held under the authority of the United Nations through the passing of a UN Security Council Resolution. 1 Other types of multinational operations, comprising both formal alliances that are set up under treaty arrangements, such as NATO, 2 and more informal coalitions that are typically established under ad hoc arrangements that deal with a specific issue or incident, such as the International Maritime Security Construct, 3 have been a feature of military operations for centuries. 4 Changes in the structure of alliances and coalitions have also been a regular occurrence, often driven by changes that occur in the political landscape of one or more partner State. There are also other types of cooperation that occur between military forces, such as routine participation in exercises and training activities, as well as exchange of personnel, staff meetings and high-level discussions between senior officials. Overall, these activities are all examples of two or more foreign militaries working together to achieve a common objective.

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Centre: CMSL

Research theme: Military & Security Law

The Responsible Shareholder

The Responsible Shareholder

Author(s): Stephen Bottomley

Examining the role of shareholders in modern companies, this timely book argues that more should be expected of shareholders, both morally and legally. It explores the privileged position of shareholders within the corporate law system and the unique rights and duties awarded to them in contrast to other corporate actors. Introducing the concept of shareholders as responsible agents whose actions and inactions should be judged on that basis, Stephen Bottomley unites a number of distinct corporate governance discussions including stewardship, activism and shareholder liability.

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Centre: CCL

Research theme: Private Law, Regulatory Law and Policy

The Critical Legal Pocketbook

The Critical Legal Pocketbook

Author(s): Ntina Tzouvala, Illan rua Wall , Freya Middleton, Sahar Shah, CLAW

The Critical Legal Pocketbook provides the tools for law students to uncover the hidden intricacies of law. Law creates an ethical and rational facade for itself, but beneath the surface you will find that it has its monsters; the leviathan of the state, the golems of racism and misogyny, the hydra of coloniality, the vampire of capitalism. These roam throughout law’s subterranean structures. At the same time, law is often painted as a heroic defence of the innocent against these terrors. Legal education likes to forget the ways that law was essential in generating structures of domination and subjection. 

Dr Ntina Tzouvala authored Chapter 8, 'How to run an empire (lawfully)'.

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Centre: CIPL

Research theme: International Law

National Security and Counterterrorism Laws cover page

National Security and Counterterrorism Laws

Author(s): James Renwick

The relationship between national security and the law is often under strain. The past 20 years have seen many Commonwealth laws passed in quick response to counterterrorism attacks, and more recently, acts of foreign interference and espionage. This article explains the scope of this special edition while reflecting on the challenges facing each branch of government, and law-reform, in this increasingly important area of the law.

Centre: CIPL

Research theme: Human Rights Law and Policy, Law, Governance and Development, Military & Security Law

The Law of Central Bank Reserve Creation journal cover page

The Law of Central Bank Reserve Creation

Author(s): Will Bateman, Jason Allen

This article explores legal and constitutional dimensions of central banks’ powers to create money, ‘central bank reserves’, through monetary policy operations. Despite the prominence of monetary authority since the Financial Crisis, the law supporting the creation of central bank reserves is very obscure, as is the role of law in structuring constitutional authority over money. We de-mystify those important matters in three steps. First, we explain, for a legal audience, the role of central bank reserves in the financial system and broader economy. Secondly, we analyse the legal basis for the creation of central bank reserves in three prominent ‘North Atlantic’ monetary jurisdictions: the US Dollar, Euro and Sterling systems. Thirdly, we show how the legal structure of central banking intermediates the constitutional state's authority over money through parts of the financial system, focusing on high-profile policy proposals, including ‘QE for the people’, and the creation of central bank digital currencies.

Centre: CIPL

Research theme:

The Law of Monetary Finance under Unconventional Monetary Policy cover

The Law of Monetary Finance under Unconventional Monetary Policy

Author(s): Will Bateman

Monetary finance (money creation by central banks to fund public expenditure) is a high-profile part of economic, political and policy debates concerning the legitimacy of central banks in liberal economies and democracies. This article makes a distinctively legal contribution to those debates by analysing the legal frameworks governing monetary finance in three prominent central banking systems between 2008 and 2020: the Federal Reserve System, the Eurosystem and the Bank of England. It begins by explaining the law governing central bank and national treasury relations in the United States, the EU and the UK. It then examines how that law operated under the unconventional monetary policies adopted by central banks in response to the financial crisis and the COVID-19 pandemic. The article concludes by reflecting on the challenges monetary finance presents to the sui generis position of central banks in the liberal constitutional order.

Centre: CIPL

Research theme: Regulatory Law and Policy

Deepfakes

'Disinformation, Deepfakes and Democracies: The Need for Legislative Reform' (2021) 44(3) UNSW Law Journal 983

Author(s): , Andrew Ray

Rapid technological advancement is changing the way that political parties, voters, and media platforms engage with each other. This along with cultural change has led to an emerging era of disinformation and misinformation driven by both domestic and foreign actors. Political deepfakes, videos created through the use of artificial intelligence, allow individuals to rapidly create fake videos indistinguishable from true content. These videos have the capacity to undermine voter trust and could alter electoral outcomes. Regulating disinformation however raises significant free speech concerns, as well as questions about where liability should fall. In particular, holding large technology and media platforms accountable for content could lead to unintended chilling effects around freedom of expression, harming rather than protecting democratic institutions. Proposed regulations should therefore be carefully analysed through the framework of the implied freedom of political communication, ensuring that any new laws are proportionate and tailored to the threat they seek to prevent. This article analyses how current Australian law interacts with political deepfakes and proposes two targeted amendments to our federal electoral regulations to reduce the threat they pose to elections.

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Centre:

Research theme: Law and Technology

Two Afternoons in the Kabul Stadium

Two Afternoons in the Kabul Stadium: A History of Afghanistan Through Clothes, Carpets and the Camera

Author(s): Tim Bonyhady

From the complete coverage of chadaris to mini-skirts, and back again. From ancient carpet designs to woven depictions of tanks and Kalashnikovs. From photographs of unveiled women to an image of horror—the execution of a kneeling woman known as Zarmeena, videoed covertly by one of the few watching women. This remarkable book provides a history of Afghanistan through the visual.

The Kabul Stadium looms large because it was there, one afternoon in August 1959, that women first appeared in western dress at a celebration of Afghanistan’s independence—a turning point, not only for women in Afghanistan’s cities but also for the country itself, symbolising its embrace of the modern. It was also there, one afternoon in November 1999, that the Taliban killed Zarmeena.

Two Afternoons in the Kabul Stadium offers both a new way of seeing Afghanistan and a new way of understanding it.

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Centre: CLAH

Research theme:

Research Handbook on Unilateral and Extraterritorial Sanctions

Research Handbook on Unilateral and Extraterritorial Sanctions

Author(s): Anton Moiseienko

Providing a unique analytical framework to capture a diverse, fragmented and highly evolving practice, the Research Handbook on Unilateral and Extraterritorial Sanctions is the key original reference work covering how sanctions have indisputably become central instruments of foreign policy.

Dr Anton Moiseienko authored Chapter 23, 'Due process and unilateral targeted sanctions'.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Alternative Law Journal

Access to algorithms post-Robodebt: Do Freedom of Information laws extend to automated systems?

Author(s): , Andrew Ray, Bridie Adams

This article analyses how current Freedom of Information laws apply to automated decision-making systems. The authors argue that while current law may extend to automated systems its application is unclear, both to practitioners and government. Instead, amendments to the FOI Act 1982 (Cth) could clarify how the law operates with respect to automated systems, and better balance the underpinning objectives of the Act.

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Centre:

Research theme: Law and Technology

AJPA

Analysing the types of evidence used by Australian federal parliamentary committees

Author(s): , Andrew Ray, Arabella Young, Will Grant

Policy makers globally often claim to use evidence when making policy decisions, but few studies have documented and evaluated the sources of evidence they rely on. This poses challenges to researchers and decision makers alike, as they struggle to assess the impact of research on policy. This study analysed citations in Australian federal parliamentary committee reports to better understand the role that academic sources play in shaping policy. Results show that academic sources are rarely cited by federal parliamentary committees, and of those that are cited, most are academic inquiry submissions or oral evidence, with very few citations of peer reviewed research. This finding points towards a need for academics seeking policy impact to engage more proactively with government inquiry submission processes. To incentivise this approach, we suggest that changes be made to the way that academic impact is measured within the university sector in order to avoid disincentivising researchers from making submissions to parliamentary inquiries.

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Centre:

Research theme: Regulatory Law and Policy

Vulnerability, legal need and technology in England and Wales

Vulnerability, legal need and technology in England and Wales

Author(s): Faith Gordon

This paper explores legal need and legal advice in England and Wales during the COVID-19 pandemic. It uses the lens of vulnerability theory to examine the ways in which this crisis exposed pre-existing fragilities between the state and its relationship with the advice sector, and the individuals who experience social welfare problems. The paper commences by exploring Fineman’s vulnerability thesis and its application to those experiencing social welfare-related issues, as well as the vulnerability of the systems operating to give advice. The paper then considers the specific context of the COVID-19 pandemic and the impact on needs, and the ability of the sector to meet these needs. 

Centre:

Research theme: Human Rights Law and Policy, Law and Technology

Pathways to empowerment and justice

Pathways to empowerment and justice: The Invisible Hurdles Stage II Research and Evaluation Final Report

Author(s): Elizabeth Curran

The Invisible Hurdles project is an integrated justice project of four partner organisations the project leader is the Hume Riverina Community Legal Service (HRCLS) a program of Upper Murray Family Care and this research was funded through them by the Victorian Legal Services Board and Commissioners grants program. The other three partners in this multidisciplinary and Health Justice Partnership are : Albury Wodonga Aboriginal Health Service (AWAHS) – this is an Aboriginal Community Controlled organisation; North East Support and Action for Youth (NESAY) is a leading agency supporting young people and their families in North East Victoria, servicing a vast region of seven municipalities; The Wodonga Flexible Learning Centre (WFLC) – this is a campus of the Wodonga Senior Secondary College - an alternative education centre was established in 2014. The project is run in the Hume Riverina region of Victoria and New South Wales focussing on ‘at risk’ young people.

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Centre:

Research theme: Human Rights Law and Policy

NSC

Australia as a Space Power: Combining Civil, Defence and Diplomatic Efforts

Author(s):

Australia is asserting itself as a serious space player and needs a strategy to match its positioning. In 2018, the creation of the Australian Space Agency (ASA) gained international attention. The ASA’s mission is to develop the nation’s commercial space industry. The new focus on space in the 2020 Defence Strategic Update (DSU) firmly signalled Australia’s intent to advance its sovereign space capabilities.

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Centre: CIPL

Research theme: Military & Security Law

LSJ

Australian law in the freezer: 60 years of the Antarctic Treaty

Author(s): Donald Rothwell

In June this year, the Antarctic Treaty will celebrate its 60th anniversary. The milestone has prompted questions as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica.

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Centre: CIPL

Research theme: International Law

The Judge, the Judiciary and the Court

The Chief Justice: Under relational and institutional pressure

Author(s): Heather Roberts

This chapter examines the role and responsibilities of a chief justice. Using the judicial legitimacy values propounded by Richard Devlin and Adam Dodek, we argue that a ‘successful’ chief justice will promote and protect these values as they negotiate and manage the many relational dimensions of the role with other judges, with the executive, the Parliament, the profession, the academy, the media, and the wider public. Our study highlights interpretative disputes, including as to whether an individual chief justice has responded to genuine, as opposed to improperly perceived, threats to judicial values and about how a chief justice might best navigate between the values, particularly as new values, such as representativeness and efficiency, can appear in opposition to more traditional values. Such questions are symptomatic of ongoing disagreement about the fragility of judicial values, particularly independence, as well as the subjective nature of any attempt to evaluate judicial performance. We argue that there is a need for a more developed normative framework to better understand – and critique – the individual choices and actions of chief justices.

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Centre: CIPL

Research theme: Constitutional Law and Theory

A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats (Advance)

A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats (Advance)

Author(s): Jelena Gligorijevic

When the High Court decided Australian Broadcasting Corporation v Lenah Meats Pty Ltd (‘Lenah’) in 2001, it left the door open for a common law tort of interference with privacy. However, privacy claims brought since Lenah have seen courts interpret that judgment restrictively, some holding that tortious remedies are unavailable. The importance of the High Court’s decision for the development of privacy protection through tort law should, therefore, be reaffirmed. In addition to the confirmation in Lenah that a tort of interference with privacy is recognisable in Australian common law, there are good reasons why the courts should now recognise this tort. There is a sufficiently strong normative demand that the common law intervene to protect individual privacy, and tort law is the most appropriate mechanism. When courts are presented with privacy cases reflecting that normative demand and fitting within tort law’s remedial capacity, they should recognise and apply a tort of interference with privacy.

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Centre: CIPL

Research theme: Private Law

 Alternative Law Journal

Indigenous corporations: Lessons from Māori business forms

Author(s): Akshaya Kamalnath

The economic and political empowerment of Indigenous people are linked although the issue of economic empowerment is often overlooked. This Brief analyses the corporate governance model and business structures used by Māori in New Zealand along with some developments in Canadian Indigenous businesses. Based on this, the Brief makes suggestions for proving the regulatory support and options available for Indigenous businesses in Australia.

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Centre: CIPL

Research theme: Indigenous Peoples and the Law

Law, Technology and Humans

Children’s Privacy in Lockdown: Intersections between Privacy, Participation and Protection Rights in a Pandemic

Author(s): Faith Gordon, Damian Clifford

Children and young people throughout the world have felt the effects of Coronavirus Disease 2019 and the decisions made in response to the public health crisis, acutely. Questions have been raised about adequately protecting children’s privacy, as schooling, play and socialising went almost exclusively online. However, due to the historical lack of children’s rights being embedded throughout decision-making processes (including important participation rights), the effects of the increased surveillance as a result of the pandemic have not been thoroughly considered. This article pursues three objectives. First, it seeks to develop the literature on the enabling aspects of privacy for children in relation to education and play. Second, it seeks to expand the discussion on the exploitative risks endemic in not protecting children’s privacy, including not only violent harms, but commercial exploitation. Third, it suggests some policy responses that will more effectively embed a children’s rights framework beyond the ‘parental control’ provisions that dominate child-specific data protection frameworks.

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Centre: CIPL

Research theme: Human Rights Law and Policy

The Journal of Corporate Law Studies

Transnational corporations and modern slavery: Nevsun and beyond

Author(s): Akshaya Kamalnath

A recent decision of the Supreme Court of Canada Nevsun Resources Ltd. v Araya, has brought the issue of transnational corporations’ responsibility for human rights violations to the forefront in Canada. After critically examining the decision, this article aims to propose an effective legislative design for Canada. The article also examines another pertinent decision (this one from the UK), Vedanta Resources plc. v Lungowe in this regard. The proposals for effective legislation in Canada set out in this article will also be relevant for other countries considering the introduction of (or amending) modern slavery laws.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

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