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.

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When Is the Advancement of Religion Not a Charitable Purpose?

Author(s): Pauline Ridge

This article addresses the question of why religious groups receive charitable status in relation to religious activities by considering when the current law does not grant charitable status to purposes that advance religion. The jurisdictional focus is upon Australian law, with some reference to other jurisdictions whose law also derives from the English common law of charity. After an overview of the charity law landscape in Australia, the article explains and critically evaluates the grounds upon which charitable status may be refused to purposes that advance religion. The article then considers two considerations that have emerged in twenty first century charity law and that are relevant to the charitable status of religious groups. These concern human rights, particularly the right to freedom of religion, and the use of charity law to regulate religious activity.

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Centre: CCL

Research theme: Law and Religion, Private Law

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The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits

Author(s): Esme Shirlow

This Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, whilst also considering their objectives and consequences. The analysis indicates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration. Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. An agenda that seeks to identify and enact effective reforms to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, then, it is vital that States, arbitral institutions, and other stakeholders confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives. The contours of the discussion in this Chapter hold importance for reform agendas in other fields of international arbitration. It highlights the importance of clarifying what is being proposed, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.

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Centre: CIPL

Research theme: International Law

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Jurisdictional Error As Conceptual Totem

Author(s): Leighton McDonald

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Legal Theory

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The Creation of Australian Administrative Law: The Constitution and Its Judicial Gate-Keepers

Author(s): Greg Weeks

For a long time judicial review in Australia was little more than a carbon copy of its English equivalent. In the period before the various Australian states became part of a unified federal nation, judicial review occurred within the inherent supervisory jurisdiction of the various Supreme Courts of those individual colonies and proceeded in a manner similar to that of English courts exercising inherent supervisory jurisdiction. The Australian Constitution is now the defining feature and dominant force of our judicial review doctrine. The key feature of the Australian Constitution that has enabled the recognition and entrenchment of judicial review of administrative action is the express creation and entrenchment of the courts. The express recognition and protection of a selection of the judicial remedies has proved equally important because the constitutional mention of some of the traditional remedies of judicial review has provided the foundation for the courts to entrench by implication that which necessarily precedes the issue of those remedies. While these and other important elements of the Australian Constitution have enabled the development of constitutionally protected avenues of supervisory review, this same constitutional foundation has also provided the source of judicial review principles that increasingly differ from their early English heritage. Many parallels between English and Australian principles remain and the one we discuss about natural justice suggests that, as happens within so many families, Australian judicial review can unwittingly replicate the mistakes of its English parent.

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Centre: CIPL

Research theme: Administrative Law

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Rethinking the Law on Shareholder-Initiated Resolutions at Company General Meetings

Author(s): Stephen Bottomley

Recent concerns about the need for improved corporate accountability raise questions about the role of shareholders in corporate governance. One aspect of these discussions is the capacity of shareholders in general meetings to propose non-binding advisory resolutions concerning governance or social matters. Since Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame in 1906, courts have held that if a company’s constitution gives directors the power of company management, shareholders cannot interfere with the exercise of that power. The Federal Court affirmed this in Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia. This paper re-examines the case law, particularly in its application to advisory resolutions, and recommends the introduction of a broad statutory authority for non-binding advisory resolutions. The paper argues that this is an important step towards improved corporate accountability and responsible shareholder engagement.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

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The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

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Centre: CIPL, CLAH

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

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The Antarctic Treaty at Sixty Years: Past, Present and Future

Author(s): Donald Rothwell

The Antarctic Treaty, which celebrates its 60th anniversary in 2019, remains as a unique example of an international law instrument that seeks to provide a governance mechanism for a single continent. Both Japan and Australia were original parties to the Antarctic Treaty and have been strong supporters of the Treaty throughout its lifetime. However, in 2019 questions are starting to be raised as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica. These questions relate to the role of the seven Antarctic claimant States, the role of historically prominent non-claimant States such as the United States and the Russian Federation, and the interests of powerful ‘new’ States that are beginning to express a strong interest in polar affairs such as China. This paper assesses whether the Antarctic Treaty is sufficiently robust to address the challenges that confront Antarctic governance in 2019 and into the future. Particular attention will be given to whether it remains possible for Treaty parties to request an Article XII ‘Review Conference’, and also the 1991 Madrid Protocol Article 25 review mechanisms.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law

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Destination Australia: Journeys of the Moribund

Author(s): Kate Ogg

Australia sends many of those who come in search of refuge to regional processing centers in Nauru and Manus Island, Papua New Guinea. Most of these asylum seekers and refugees want to continue their journey to Australia but the Australian Government has vowed that none will be given protection in Australian territory. However, there have been recent developments in the Federal Parliament and Federal Court that have paved the way for certain asylum seekers and refugees in Nauru and Manus Island to come to Australia. In this chapter, I investigate these legislative and judicial developments and argue that they indicate that the place of human rights and international law is becoming increasingly peripheral in Australia’s refugee law and policy and instead transfers to Australia have become medicalized. Australia’s parliamentarians and courts have moved to protect asylum seekers’ physical and mental health but not the rights flowing to them as people, children, and refugees. Asylum seekers and refugees must be moribund before they can use legal processes to transfer to Australia and they come as sick people in need of medical care—not as bearers of legal rights. These developments hamper larger efforts to end or fundamentally reform Australia’s offshore processing regime.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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New Directions in Article 1D Jurisprudence: Greater Barriers for Palestinian Refugees Seeking the Benefits of the Refugee Convention

Author(s): Kate Ogg

This chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. In theory, these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary. Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this can serve to disadvantage Palestinian women and girls. Consequently, these decisions create additional and often-insurmountable barriers to Palestinian refugees seeking the benefits of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

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Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the ‘E10’). A common understanding of Security Council dynamics accords predominance to the five permanent members (the ‘P5’), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

Read on SSRN

Centre: CIPL

Research theme: International Law

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Algorithmic Decision-Making and Legality: Public Law Dimensions

Author(s): Will Bateman

Automating the exercise of statutory powers through algorithmic decision-making carries high levels of legal risk. Fundamental public law doctrines assume that legal powers will be exercised by a particular kind of decision-making agent: one with sufficient cognitive capacities to understand the interpretative complexity of legal instruments and respond to highly dynamic environments. Public law doctrines also assume that clear reasons can be given for the exercise of public power and, by default, attribute legal responsibility for the exercise of statutory powers to a human being bearing political and social responsibility. Those doctrines provide the standards against which the legality of algorithmic decision-making in the public sector must be tested and, until they are met, lawyers should be sceptical of suggestions that statutory powers can be automated.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Government Liability: Principles and Remedies

Government Liability: Principles and Remedies

Author(s): Greg Weeks, Dr Janina Boughey, Dr Ellen Rock

Given the degree of power wielded by Australian government officials and entities, it is unsurprising that government decisions and conduct frequently impact on individuals. To find the most appropriate way to resolve a particular case, practitioners must be able to work across the traditional legal ‘silos’, drawing on public and private law principles as well as the important, and often under-valued, roles of non-legal accountability mechanisms. This book familiarises readers with some of the complexities underpinning this area and covers public law remedies, private law remedies, and statutory remedies.

Purchase your copy online

Centre: CIPL

Research theme: Administrative Law

Danse Macabre by Desmond Manderson

Danse Macabre: Temporalities of Law in the Visual Arts

Author(s): Desmond Manderson

The visual arts offer refreshing and novel resources through which to understand the representation, power, ideology and critique of law. This vibrantly interdisciplinary book brings the burgeoning field to a new maturity through extended close readings of major works by artists from Pieter Bruegel and Gustav Klimt to Gordon Bennett and Rafael Cauduro. At each point, the author puts these works of art into a complex dance with legal and social history, and with recent developments in legal and art theory. Manderson uses the idea of time and temporality as a focal point through which to explore how the work of art engages with and constitutes law and human lives. In the symmetries and asymmetries caused by the vibrating harmonic resonances of these triple forces - time, law, art - lies a way of not only understanding the world, but also transforming it.

Centre: CLAH

Research theme: Legal Theory

The Enchantment of the Long-haired Rat: A Rodent History of Australia

The Enchantment of the Long-haired Rat: A Rodent History of Australia

Author(s): Tim Bonyhady

The fascinating story of a much-maligned and little-understood native Australian rodent.

The long-haired rat breeds and spreads prodigiously after big rains. Its irruptions were plagues to European colonists, whofeared and loathed all rats, but times of feasting for Aboriginal people.

Tim Bonyhady explores the place of the long-haired rat in Aboriginal culture. He recounts how settler Australians responded to it, learned about it and, occasionally, came to recognise the wonder of it. And he reconstructs its changing,shrinking landscape—once filled with bilbies, letter-winged kites and inland taipans, but now increasingly the domain of feral cats.

An astonishing history, The Enchantment of the Long-haired Rat illuminates a species, a continent, its climate and its people like never before.

Centre: CLAH

Research theme: Indigenous Peoples and the Law

Law, Love and Freedom

Law, Love and Freedom: From the Sacred to the Secular

Author(s): Joshua Neoh

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

Access here

Centre: CIPL, CLAH

Research theme: Law and Religion, Legal Theory

Martyrdom, Antinomianism, and the Prioritising of Christians - Towards a Political Theology of Refugee Resettlement

Author(s): Matthew Zagor

This article considers the approaches taken in the United States (US) and Australia to prioritising the resettlement of Christians from Syria and Iraq. Focusing first upon respective models and the immediate political factors that lead to their adoption, it analyses in depth the specific role played by the evangelical constituency in the US, and their theologically-infused concern for the “persecuted church” in “enslaved” lands. Recognising this movement enjoys less influence in Australia, the article considers the ways in which Australia’s resettlement policies and political narratives have nonetheless increasingly participated in tropes familiar to classical antinomian political theology, not least that resettlement is tied to a redemptive generosity of the State that works to denigrate and undermine the legal obligations demanded by those who arrive irregularly by boat. The article also critiques the use of “vulnerability” as a touchstone principle for the fair allocation of scarce resettlement places, and its propensity to be used for cherry-picking purposes. Finally, as part of the argument that resettlement is susceptible to being used as a vehicle for those motivated by more explicit theological concerns, the article explores the leveraging for political, redemptive, and eschatological purposes of images and narratives of the “martyred” middle-eastern Christian.

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 Future of Australia's Federal Renewable Energy Law

Author(s): James Prest

This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

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Centre: CIPL

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Corporatisation of Community Pharmacy and the Constitutional Prohibition of Civil Conscription for Medical Service Providers

Author(s):

This article examines recommendations from the Harper Competition Review recommending the opening up to corporate ownership of the community pharmacy sector in Australia. After studying the outcomes of similar proposals in other nations it examines whether s51 xxiiiA of the Australian Constitution provides a prohibition against such a reduction of the small business option for those pharmacists wishing to develop a pharmacy business in Australia. An analysis of the services provided by community pharmacists finds that services such as the provision of advice on the safe and efficacious use of medicine, the prescribing and administering of vaccinations, the treatment of minor wounds and ailments, the provision of pharmacist-only medicines, diabetes education form part of the core function of community pharmacists. Given that these services are fundamentally medical in nature, in their current role, community pharmacists as Commonwealth-regulated medical service providers for the purposes of s 51xxiiiA are thereby protected against Commonwealth policy or legislation facilitating civil conscription.

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Centre: CIPL

Research theme:

Analysis of Australia's New Biosecurity Legislation

Author(s):

On 16 June 2016 the Biosecurity Act 2015 (Cth) came into force. This legislation replaced the Quarantine Act 1908 (Cth) which had regulated biosecurity in Australia for over a century. Impetus for the change arose from a number of reviews (the Nairn Report and later Beale Review) into Australia’s biosecurity system. These identified systemic flaws that were causing the country to be vulnerable to incursions of foreign pests and diseases through the administration of an archaic regulatory regime. The Biosecurity Act 2015 (Cth) includes new terminology, increased powers for the regulator and additional requirements for industry. The responsible agency, the Department of Agriculture and Water Resources (DAWR), has stated that the new biosecurity laws are designed to be user-friendly, to be flexible and responsive to changes in technology and future challenges, to remove cluttered and confusing sections of the Quarantine Act 1908 (Cth) and to achieve the difficult balance of making biosecurity regulation risk-based and equipping the regulator with strong enforcement powers whilst while also being economically prudent and supportive of increasing Australian trade and market access. This article column analyses such claims, including the short, and long term implications of providing biosecurity officers with two sets of authorising legislative powers and sharing the responsibility of biosecurity emergencies with the Department of Health.

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Centre: CIPL

Research theme:

Australian Senate Committee Report on Transvaginal Mesh Devices

Author(s):

On 28 March 2018 the Australian Senate Community Affairs References Committee issued its final report on transvaginal mesh devices. It found these devices have caused unnecessary physical and emotional pain and suffering to thousands of women who were not told by their doctors of the objective material risks associated with their use. The Senate Committee concurred with the Public Health Association of Australia's (PHAA) description of the complications resulting from transvaginal mesh implants as constituting a serious public health issue requiring a response at both an individual and at a population level, including counselling, public education, clinical interventions and long-lasting protective mechanisms. The committee’s inquiry highlighted significant shortcomings in Australia's reporting systems for medical devices, with flow-on consequences for the health system's ability to respond to in a timely and effective way to related concerns. Amongst other recommendations, the Senate Committee backed the establishment on a cost recovery basis of a national registry of high risk implantable devices linked to a system of mandatory reporting of adverse events.

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Centre: CIPL

Research theme:

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