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 Cambridge Handbook of Deliberative Constitutionalism

The Cambridge Handbook of Deliberative Constitutionalism

Editor(s): Ron Levy, Hoi Kong, McGill University, Montréal, Graeme Orr, University of Queensland, Jeff King, University College London

Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume will serve as the international reference point on deliberation as a foundational value in constitutional law, and will be an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.

Order your copy online.

Centre: DGAL

Research theme: Constitutional Law and Theory

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

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

CHALLENGING THE LEGAL PROFESSION A CENTURY ON: THE CASE OF EDITH HAYNES*

Challenging the Legal Profession A Century On: The Case of Edith Haynes

Author(s): Margaret Thornton

This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

Read on SSRN

Centre: CIPL, CLAH

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

THE DELIBERATIVE CASE FOR CONSTITUTIONAL REFERENDA

The Deliberative Case for Constitutional Referenda

Author(s): Ron Levy

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

Read on SSRN

Centre: CIPL, DGAL

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

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s): Kath Hall

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Administrative Law, Legal Education, Private Law, Regulatory Law and Policy

High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey V the Queen and Zaburoni V the Queen

Author(s):

In 2017, the High Court of Australia in Aubrey v The Queen (2017) 91 ALJR 601; [2017] HCA 18 considered the term “inflict” grievous bodily harm, under common law, and expanded its interpretation to incorporate nonviolent and non-immediate infection of a disease, overturning a 120 year authority in R v Clarence (1888) 22 QBD 23. In the previous case of Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, the High Court allowed an appeal from the Qld Supreme Court finding that repeated acts of unprotected sexual intercourse by a man who knew he was infected with HIV/AIDS, though callous and reckless, did not constitute intention to infect his female partner; consequently, he could be found guilty of a lesser offence of inflicting grievous bodily harm which carried a maximum 14-year prison sentence rather than life imprisonment. These decisions illustrate a court intersecting with an emerging trend to use legislation creating criminal offences to deter those who intentionally or recklessly infect others with life-shortening diseases.

Read on SSRN

Centre: CIPL

Research theme:

Recent Developments in Social Security Law

Author(s):

This Paper was presented to a Roundtable of the National Social Security Rights Network in Canberra on 5 August 2017.

The Paper reports on recent developments in social security law in Australia, particularly with reference to recent decisions of the Commonwealth Administrative Appeals Tribunal and the Federal Court of Australia.

Read on SSRN

Centre: CIPL

Research theme:

Public Health Legislation Prohibiting Sports-Embedded Gambling Advertisting

Author(s):

Australian Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.

Read on SSRN

Centre: CIPL, CLAH

Research theme:

An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients (Presentation Slides)

Author(s): Elizabeth Curran

Our paper fits into all the themes ● The clinician and community needs ● The clinician and research into the impact of clinic ● The clinician and academic identity ● The clinician and curriculum and student learning

This paper examines the value in students, academics and clinical supervisors learning and working together across different disciplines through an interdisciplinary student clinic (IDSC) to deliver legal and public health education to people who experience social exclusion by reason of vulnerability or disadvantage (including poverty)– the ‘Health Justice Partnership Student Clinic’.

This paper situates the discussion firstly within the context of author one’s research on multi-disciplinary practices (MDP) including Health Justice Partnerships (HJP) which have led to this decision at University of Portsmouth to set up a IDSC. MDP in this context is where a number of professionals work together in a practice to assist the client using their different skills but in the one place and setting. One subset of an MDP is the HJP which sees lawyers working alongside nursing and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. It is about going to where people in need of help are likely to turn.

This paper firstly identifies the evidence-based research that has led the authors to see the need, not just for multi-disciplinary practices in a service context but also interdisciplinary practice and teaching opportunities through clinical learning that brings greater collaboration for students, supervisors and academics across the professional divide to improve outcomes for clients. The authors see a critical need in universities to better prepare the emerging professionals to learn about collaboration with other disciplines and demonstrate influence and impact in the wider community. Author one’s empirical research into effective practice also suggests that such collaboration leads to better outcomes for clients and patients especially those experience some form of vulnerability or disadvantage.

Secondly, as there is some literature on IDP and IDSC, (mainly from the United States and Australia) this paper will explore other models, the reasons and rationales for their emergence and the benefits and challenges and how this has informed the development other new pilot IDSC at the University of Portsmouth. The paper then discusses why the IDSC has emerged as an important way of building better and more responsive future practitioners in nursing, law and allied health disciplines.

The paper also discusses aims of the three-year University of Portsmouth pilot IDSC and the joint learning opportunities for students of different disciplines, their supervisors and across departments which are envisioned so as to break down barriers between professionals, enable future practitioners to collaborate across different fields and thereby improve social justice and health outcomes for clients and community. These include fostering and increasing understanding and respect for different professional roles and approaches, breaking down stereotypes, enhancing student employability and working together to better reach and meet client/patient needs by being more responsive to legal and public health needs.

The proposed trial IDSC HJP student clinic course will teach new approaches to students studying nursing, dentistry and law in a joint learning environment that includes problem solving, relationship-building, communication and collaboration skills in a clinic which will provide live client legal and public health advice. It will discuss how this is being undertaken and the challenges and approach of the course and its curriculum.

The paper finally discusses the embedded evaluation of the pilot study. It is embedded as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. The embedded evaluation being undertaken will inform as to the projects impact on students, academic staff, partner agencies and clients.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

'Envisioning Student Learning in a Multi-Disciplinary Student Clinic Future Practitioners Learning About Working Collaboratively Across Disciplines to Better Help Community’ (Presentation Slides)

Author(s): Elizabeth Curran

In this paper, the author examines the imperative for interdisciplinary student clinics where law, nursing, social work and other disciplines work together in joint classes at undergraduate levels to learn collaborative and client skills to overcome barriers and professional stereotypes that impede the solving of clients problems holistically. Then they can work towards delivering a real life advice clinic to clients in most need and undertake systemic reforms to avert problems.

The paper defines interdisciplinary student clinics and multi-disciplinary practice given the nomenclature in literature is contradictory and confusing.

The presenter’s research and practical experience as a clinical legal education supervising solicitor within a health service has led to the idea for the development of an interdisciplinary student clinic as an important way of building better and more responsive future practitioners in health, law and allied health disciplines.

The paper outlines some initiatives undertaken by law students under her supervision that could if further developed be done in collaboration and co-cooperatively alongside other colleagues in different fields and in student learning to ensure respectful and reciprocal learning. It can also lead to an appreciation of different professional roles and differing ethical obligations. In this paper, the author identifies why there is a need for such an approach to break down barriers between professionals to improve social justice and health outcomes based on her recent empirical research.

She will explore research and new approaches to lawyering and health services provision that works across silos to enable more seamless navigable service options for real life clients of the clinic and new approaches in a work place.

The author has been asked to advise (pro bono) on the establishment of such an innovative clinic at Portsmouth University in the UK for nursing, law and social work students.

This initiative by way of a pilot aims to see work across academic disciplines and with clinical supervisors from different fields designing and teaching together in such a IDSC.

The author notes that a further paper is being developed in collaboration with the Head of Law and Head of Nursing at Portsmouth University that explores these issues in more details.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Torts cases and commentary

Torts: Cases and Commentary, 8th edition

Author(s): David Hambly, Harold Luntz, Kylie Burns, Joachim Dietrich, Neil Foster, Sirko Harder, Genevieve Grant

Torts: Cases and Commentary delivers a critical and analytical approach to the law of torts presented through extensive commentary and selected materials from cases, legislation and academic writings. Detailed notes explain the significance of the key cases while questions stimulate critical thinking and learning.

This edition provides extended coverage of statutory defences to negligence, while doctrines relating to the scope of liability are now discussed together with factual causation in one chapter. Current issues in tort law reform are examined and additional references to academic writings are provided.

Order your copy online

Centre: CCL

Research theme: Private Law

Visions of Contract

"Visions of Contract" Journal of Law and Society

Author(s): Sally Wheeler

Stewart Macaulay and Ian Macneil were the prime movers in creating a model of contractual relations that went beyond the confines of the formal legal model that defined contract enforceability. The work of both of them has been influential even though it has suffered from many misdescriptions along the way. In this article I map their respective contributions and explain the differences between their visions of contract. I then add a third dimension: the possibilities for a new vision of contract and contractual relations raised by blockchain.

Access here

Centre: CCL

Research theme: Law and Technology

first_research_and_evaluation_report.jpg

First Research and Evaluation Report Phase One Consumer Action Law Centre Project – Responding Effectively to Family Violence Dimensions of Debt and Credit Through Secondary Consultations & Training with Community Professionals

Author(s): Elizabeth Curran

The Report of the Royal Commission into Family Violence recognised that the family violence victim’s financial security impacts on their wellbeing. Beyond the role of the perpetrator of violence, many problems interact in relation to family violence related debt: 1. The considerable difficulties victims face in asserting and enforcing their financial rights alone; 2. A systemic failure by financial and utility service providers “to understand, identify and respond to economic abuse”; and 3. Inadequate legal and regulatory protections. This Research and Evaluation Report Phase One, evaluates whether the aim of this project to provide a Secondary Consultation (SC) service integrated with Consumer Action’s Training and Outreach program providing training, resources and support to community workers (‘community professionals’) to overcome barriers identified in previous studies by working with trusted community professionals to whom people experiencing family violence are likely to turn to enable their credit & debt legal issues is being addressed in a timely and effective way. The data discussed and analysed for this report including the proxies or benchmarks, set for this research evaluation are being achieved namely engagement, capacity, collaboration and empowerment however there are still some areas for improvement, which is only natural when this project is in its infancy and the issues as the Royal Commission highlights are so vexed and complex. The in-depth interviews reflect that trust and reliability are critical in gaining secondary consultations and referrals. The former being identified (as in other studies ) as critical if the latter are to flow. The qualitative data suggests that Consumer Action is starting to build trust and relationships but there are notes of warning from the interview participants about a need for clarity around the extent and resources and types of matters Consumer Action can assist with and offer support on. This the research participants 5/6 noted can also give them confidence and greater certainty as they support their clients through family violence and debt and credit related issues. The research data consistently highlights the value of secondary consultations (5 out of 6 of the participants strongly agree to its value) in providing efficient, effective and responsive timely secondary consultation to community professionals especially where clients may: not be emotionally ready to see a lawyer, have too many issues weighing on them, or have had poor experiences of lawyers. The latter is consistent with other research but seems to be addressed, as the participants noted in the in-depth interviews with the style of community lawyering that is approachable and practical and considers context. Consumer Action has delivered training sessions which double the number which the funding requires. This is a critical part of building the awareness not only of the service but of the range or problems capable of a legal solution, building trust and relationships and capacity to respond of agencies and other community professionals into the future beyond the extensive reach that Consumer Action already has, to financial counsellors. Noted by all interview participants was that secondary consultations are invaluable as they build trust, provide a form of instant on the spot training, especially for professionals and their clients in rural locations, which are being used to extend the reach of Consumer Action to clients beyond those for whom the initial consultation is sought as the information has wider utility. It can be timely and there is no intake process that for other services can present barriers.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

global_artificial_photosynthesis.jpg

Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

Read on SSRN

Centre: CIPL

Research theme:

global_artificial_photosynthesis.jpg

Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

Read on SSRN

Centre: CIPL

Research theme:

key_developments.jpg

Social Security Overpayments and Debt Recovery: Key Developments

Author(s):

It is important to understand the history of the social security legislation, and other contexts, such as the language of 'error', 'overpayment', 'debt' and 'fraud', to fully understand the social and legislative basis of social security debt recovery today.

Read on SSRN

Centre: CIPL

Research theme:

The Use of Space Technology Export Controls as a Bargaining Solution for Sustainability: A Chicago Convention Model of Space Governance

Author(s):

With the increase in space debris and space traffic, there is growing awareness that sustainable use of space requires improvements in global space governance, yet no binding international treaty has been concluded for almost four decades. There is little national incentive for countries to enter into binding instruments that may impose limits on their freedom of action: key issues such as space debris and space traffic management may not immediately threaten national interest. However, they threaten the collective interest in the long term, and the question is how to incentivize States towards creating new space governance instruments to ensure sustainable use of space. Successful international treaties can be described as the striking of a “bargain”, whereby States accept limits on their behavior in exchange for the cooperation of other States. This paper proposes a model similar to the 1949 Chicago Convention on International Civil Aviation, widely seen as the regulatory pillar upon which global civil aviation was built. The Chicago Convention successfully continues to adapt to technologies and to provide incentives for State Parties to comply, due largely to the key mechanism of the technical Annexes. State Parties agree to comply with uniform standards and recommended practices (SARPs) for the safety and efficiency of air navigation in exchange for the cooperation of other States. Hence there is significant short term economic incentive to comply. This paper proposes a new international convention for civil space activities, which would incorporate SARPs for safety and sustainability in outer space. National space technology export control mechanisms can be used by States to incentivize compliance: States could refuse to export space technologies to non-complaint States. Thus, the bargaining mechanism would ensure compliance with long term sustainability interests based on the short-term incentive of access to space technology.

Read on SSRN

Centre: CIPL

Research theme:

Global Commons and Cosmic Commons

Global Commons, Cosmic Commons: Implications of Military and Security Uses of Outer Space

Author(s):

Although space was envisaged to be a global commons, in recent years there have been policy shifts that reflect the desire to exert a more dominant presence in outer space, with more proactive, aggressive space security strategies. The notion of a global commons has come under threat, and there is a risk of an emerging space arms race and even of a conflict in space. There is, therefore, a renewed need for restraint in space for both national and global security and for more clarity on the ways in which military and security activities are limited by existing international law.

Read on SSRN

Centre: CIPL

Research theme:

Court records as Archives

Court Records As Archives: The Need for Law Reform to Ensure Access

Author(s): Andrew Henderson, Kim Rubenstein

The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.

Read on SSRN

Centre: CIPL, CLAH

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

not-for-profit_law_and_freedom_of_religion.jpg

Not-for-Profit Law and Freedom of Religion

Author(s): Pauline Ridge

The discussion in this chapter of particular intersections between English not-for-profit law and the right to freedom of religion highlights some problems in the existing law. The following suggestions for reform merit further attention. First, ‘religion’ should be defined as widely as possible in order to protect freedom of religion and to promote clarity in legal reasoning. Secondly, in relation to Article 14’s application to religious groups a conceptual framework is needed to determine when it is legitimate for the State to discriminate between religious groups by way of fiscal policy and to more clearly delineate the margin of appreciation afforded to the State when doing so.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Private Law

Pages

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