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.

ERF publication

The ERF’s Human-induced Regeneration (HIR): What the Beare and Chambers Report Really Found and a Critique of its Method

Author(s): Andrew Macintosh, Don Butler, Megan C Evans, Pablo R Larraonda, Dean Ansell, Philip Gibbons

The Emissions Reduction Fund (ERF) is the centre-piece of the Australian Government’s climate policy. It was first introduced in 2014 and is comprised of three main elements: a carbon offset crediting scheme, which issues Australian carbon credit units (ACCUs) to projects that abate emissions; a purchasing scheme, whereby the Clean Energy Regulator (on behalf of the Australian Government) voluntarily purchases ACCUs from eligible offset projects; and the ‘Safeguard Mechanism’, which imposes emission obligations on designated large facilities that can be met through the relinquishment of ACCUs. 

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Research theme: Environmental Law

Measurement Error

Measurement Error in the Emissions Reduction Fund's Human-induced Regeneration (HIR) Method

Author(s): Andrew Macintosh, Don Butler, Dean Ansell

The Human-induced Regeneration (HIR) method is a centrepiece of the Australian Government’s Emissions Reduction Fund (ERF). Broadly, the method allows landholders to earn carbon credits, known as Australian carbon credit units (ACCUs), for the regeneration of native forests through changes in land management. At present, the HIR method accounts for the most project registrations of any method under the ERF, the most Australian carbon credit units (ACCUs) issued of any method, and more than 50% of all ACCUs contracted through the ERF purchasing scheme, worth approximately $1.5-$1.6 billion. HIR project areas now stretch across more than 20 million hectares of Queensland, New South Wales, South Australia and Western Australia and, in these areas, the method is having a material influence on property markets.

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Research theme: Environmental Law

Integrity

The Emissions Reduction Fund's Landfill Gas Method: An Assessment of its Integrity

Author(s): Andrew Macintosh

The available data provide compelling evidence that the majority of the abatement credited under the Emissions Reduction Fund’s (ERF) landfill gas methods has not been additional. It appears that in the order of two-thirds of the abatement credited under the methods would have occurred in the absence of the incentive provided by the issuance of ACCUs. The non-additional abatement credited under these methods equates to approximately 19.5 million Australian carbon credit units (ACCUs), or almost 20% of the total number of ACCUs issued under the ERF to the end of 2021. These credits are likely to have been worth more than $300 million.

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Research theme: Environmental Law

Intellectual Property and International Clean Technology Diffusion: Pathways and Prospects

Intellectual Property and International Clean Technology Diffusion: Pathways and Prospects

Author(s): Wenting Cheng

International clean technology diffusion is essential to mitigate and adapt to climate change, while fast and optimal diffusion can be prevented by the paywall of patents. This article explores the deficiency in clean technology diffusion caused by the legal fragmentation and rule complex of international environmental law and intellectual property law. It systematically examines three pathways to foster international clean technology diffusion through: restriction of intellectual property, including imposing external restraints in environmental law; striking internal balancing in maximizing TRIPS flexibilities; and keeping the status quo. It argues that treaty pathways may not work, and an operable pathway to promote clean technology diffusion is to maximize and consolidate TRIPS flexibilities in national laws. This option challenges the popular proposal of a “Doha-like” declaration on TRIPS and climate change due to the paralyzed multilateral trade mechanism, asymmetrical negotiation power of developing countries, prolonged negotiation process, and categorization problem in treaty negotiations.

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Centre: CIPL

Research theme: Law and Technology

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Strengthening Boards Through Diversity: A Two-Sided Market That Can Be Effectively Serviced By Intermediaries

Author(s): Akshaya Kamalnath

The current focus on the monitoring role of the corporate board has come under much criticism. Independent directors play a significant role within this model. However, their ability to truly function independently has been rightly questioned in the last decade. Independent directors are impeded by two main problems: first, the lack of access to relevant information, for which they are reliant on management, and second, the high likelihood of being captured (to varying degrees) by management. There have been various suggestions to fix these problems, ranging from enhancing board diversity to drastically reforming the current model of corporate boards. This Article argues that diversity holds the promise of slowly reforming the current board model, so long as well-considered measures are taken. To that end, this Article will propose a model of board governance that relies on providers of supplemental board services as intermediaries to facilitate diversity on boards. This model will, on the one hand, allow companies to attract both the best and diverse directors and on the other hand, allow board candidates (especially diverse candidates) to make well-informed decisions about taking on directorships. Eventually, companies may choose to share these reports with investors and the general public to signal their commitment to diversity and governance. Finally, the proposed model has the potential to drive boards to take on more of an advisory role along with the current focus on monitoring.

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Centre: CIPL

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Beyond Cybercrime: New Perspectives on Crime, Harm and Digital Technologies

Author(s): Faith Gordon

Beyond Cybercrime: New Perspectives on Crime, Harm and Digital Technologies extends criminological scholarship by examining how digital technologies are conceptualised within research on crime and (in)justice. Guest editors Faith Gordon, Alyce McGovern, Chrissy Thompson and Mark A. Wood present contributions that broaden our theoretical and conceptual understandings of the technology–harm nexus and provide criminologists with new ways of moving beyond cybercrime.

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Centre: CIPL

Research theme: Law and Technology

Digital Trade in the Australia—EU FTA: A Future-Forward Perspective

Digital Trade in the Australia—EU FTA: A Future-Forward Perspective

Editor(s): Neha Mishra

This paper assesses the significance of the Digital Trade Chapter of the Australia—EU FTA and focuses on the disciplines necessary to boost digital trade. In the ongoing negotiations, the EU and Australia are likely to agree upon conventional digital trade disciplines (e.g., e-signatures, e-authentication, paperless trading, customs duties on electronic transmissions) as well as provisions on online consumer trust and spam, and more contemporary disciplines on source code disclosure and data localisation. These disciplines can undoubtedly contribute to boosting digital trade between Australia and the EU. However, data flows and data protection will remain a sticky issue in the ongoing negotiations, given the differences in data protection laws of the EU and Australia, and the EU’s exceptionally defensive approach in data protection. Instead of bypassing such issues, the FTA negotiators should view the negotiations as an opportunity to build mutual consensus and foster cooperation in formulating standards and mechanisms for data transfer. Further, the negotiations provide an opportunity for adopting deeper disciplines on digital trade facilitation that can nurture start-ups as well as experimenting with novel models for regulatory cooperation in nascent policy areas including AI ethics and open government data.

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Centre: CIPL

Research theme: International Law

The Australia-European Union Free Trade Agreement

Investment Protection in the AEUFTA: Missed Opportunities or Strategic Exclusions?

Editor(s): Esme Shirlow

Negotiations between Australia and the European Union (EU) for a free trade agreement (the AEUFTA) appear to be nearing completion. Based on the EU’s negotiating mandate and the official reports from the negotiations so far, it is clear that the AEUFTA’s investment-related provisions will focus exclusively on market access and investment liberalisation. The AEUFTA will thus not incorporate investment protection obligations and nor will it include an investor-State dispute settlement mechanism. Despite these omissions, the conclusion of the AEUFTA will be significant from the perspective of both negotiating States, including because it reveals the policy and legal constraints guiding the approach of each to the negotiation and conclusion of investment treaties and investment chapters in FTAs. This article first introduces the contours of the bilateral investment relationship between the EU and Australia and then examines why the FTA adopts an exclusively liberalisation-focussed approach, to address whether the exclusion of investment protection and investor-State arbitration from the scope of the FTA is a strategic omission on the part of one or both parties. To consider next whether such omission is a missed opportunity, the article examines the likely focus of the investment-related provisions of the treaty, and what impact the FTA is likely to have vis-à-vis investors and existing investment treaties.

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Centre: CIPL

Research theme: International Law

Civil Remedies and Human Rights in Flux

The Philippines: Civil Vindications for Uncivilised Wrongs

Editor(s): Gemmo Fernandez

What private law avenues are open to victims of human rights violations? This chapter features in an innovative new collection, Civil Remedies and Human Rights in Flux, which explores this question across sixteen jurisdictions in the Global South and Global North.

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Centre: CIPL

Research theme: International Law

Civil Remedies and Human Rights in Flux

Editor(s): Gemmo Fernandez, Ekaterina Aristova , Ugljesa Grusic

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations. 

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Research theme: Human Rights Law and Policy

Civil Remedies and Human Rights in Flux

Editor(s): Gemmo Fernandez

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations. 

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Research theme: Human Rights Law and Policy

Taking law seriously

Taking Law Seriously

Author(s): Leighton McDonald, James Goudkamp, Mark Lunney

This book celebrates the scholarship of Peter Cane. The significance and scale of his contributions to the discipline of law over the last half-century cannot be overstated. In an era of increasing specialisation, Cane stands out on account of the unusually broad scope of his interests, which extend to both private and public law in equal measure. This substantive breadth is combined with remarkable doctrinal, historical, comparative and theoretical depth. This book is written by admirers of Cane's work, and the essays probe a wide range of issues, especially in administrative law and tort law. Consistently with the international prominence that Cane's research has enjoyed, the contributors are drawn from across the common law world. The volume will be of value to anyone who is interested in Cane's towering contributions to legal scholarship and administrative law and tort law more generally.

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Centre: CIPL

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Taking law seriously

Taking Law Seriously

Author(s): Leighton McDonald, James Goudkamp, Mark Lunney

This book celebrates the scholarship of Peter Cane. The significance and scale of his contributions to the discipline of law over the last half-century cannot be overstated. In an era of increasing specialisation, Cane stands out on account of the unusually broad scope of his interests, which extend to both private and public law in equal measure. This substantive breadth is combined with remarkable doctrinal, historical, comparative and theoretical depth. This book is written by admirers of Cane's work, and the essays probe a wide range of issues, especially in administrative law and tort law. Consistently with the international prominence that Cane's research has enjoyed, the contributors are drawn from across the common law world. The volume will be of value to anyone who is interested in Cane's towering contributions to legal scholarship and administrative law and tort law more generally.

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Centre: CIPL

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Taking the low road: China's influence in Australian states and territories

Constitutional issues in Australia’s subnational relations with China

Editor(s): Dominique Dalla-Pozza, Donald Rothwell

This chapter assesses the international legal and constitutional law issues associated with the capacity of the Australian states and territories to conduct themselves in foreign affairs, especially vis-à-vis China. It is published in the book, Taking the low road: China's influence in Australian states and territories, edited by Emeritus Professor John Fitzgerald and published by the Australian Strategic Policy Institute in partnership with Konrad Adenauer Stiftung (KAS).

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Centre: CIPL

Research theme: International Law

Taking the low road: China's influence in Australian states and territories

Constitutional issues in Australia’s subnational relations with China

Editor(s): Dominique Dalla-Pozza, Donald Rothwell

This chapter assesses the international legal and constitutional law issues associated with the capacity of the Australian states and territories to conduct themselves in foreign affairs, especially vis-à-vis China. It is published in the book, Taking the low road: China's influence in Australian states and territories, edited by John Fitzgerald and published by the Australian Strategic Policy Institute.

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Centre: CIPL

Research theme: International Law

The Practice and Problems of Transnational Counter-Terrorism

The Practice and Problems of Transnational Counter-Terrorism

Author(s): Fiona de Londras

The attacks of 9/11 kickstarted the development of a pervasive and durable transnational counter-terrorism order. This has evolved into a vast institutional architecture with direct effects on domestic law around the world and a number of impacts on everyday life that are often poorly understood. States found, fund and lead institutions inside and outside the United Nations that develop and consolidate transnational counter-terrorism through hard and soft law, strategies, capacity building and counter-terrorism 'products'. These institutions and laws underpin the expansion of counter-terrorism, so that new fields of activity get drawn into it, and others are securitised through their reframing as counter-terrorism and 'preventing and countering extremism'. Drawing on insights from law, international relations, political science and security studies, this book demonstrates the international, regional, national and personal impacts of this institutional and legal order. Fiona de Londras demonstrates that it is expansionary, rights-limiting and unaccountable.

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Centre: CIPL

Research theme: International Law

Judicial Review of Administrative Action and Government Liability

Judicial Review of Administrative Action and Government Liability (7th ed)

Author(s): Greg Weeks, Mark Aronson, Matthew Groves

Judicial Review of Administrative Action and Government Liability Seventh Edition (2022, Thomson Reuters) is one of Australia’s most respected legal texts. It was selected as the first title in Thomson Reuters’ prestigious Lawbook Library Series, because it represents definitive legal scholarship and publishing excellence in Australian law.

For almost three decades, this work has both mapped and supported development of the law and practice of judicial review of administrative action throughout Australia. Repeatedly cited in the High Court of Australia, this landmark work remains the definitive scholarly work for judicial officers, practitioners and students alike.

In this edition, the authors have restructured the book, and have added new chapters responding to debate about Australia's distinctive approach to judicial review and the obligation to support administrative decisions with statements of reasons.

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Centre: CIPL

Research theme: Administrative Law

Courting Constitutionalism The Politics of Public Law and Judicial Review in Pakistan

Courting Constitutionalism The Politics of Public Law and Judicial Review in Pakistan

Author(s): Moeen Cheema

Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to the status of the regulator of the state.

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Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory

Maritime security

Australia's conceptualisation of maritime security

Author(s): David Letts

A search of relevant government publications does not provide any evidence of an official definition for maritime security that has been adopted by the Australian Government. A range of government departments and authorities use the term, but invariably without any accompanying definition.

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Centre: CMSL

Research theme:

Youth activists

Youth Activists, Climate Conscious Lawyering and Environmental Policy: Parliamentary Inquiry Submissions in Legal Education'

Author(s): Heather Roberts, Andrew Ray, Annika Reynolds

As legal practice adapts to the changing expectations lawyers face, law schools must also adapt to ensure they continue to engage their student populations. How law schools can teach the wider “climate-conscious” advocacy skills that future legal generations will require remains an underexplored area. In this article, we propose one novel approach law schools might take, namely,  creating  and implementing a parliamentary inquiry submission student writing program. We argue that such an approach

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Research theme: Environmental Law, Legal Education

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