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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A Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between Loddon Campaspe Community Legal Centre and Bendigo Community Health Services

Author(s): Elizabeth Curran

The Bendigo HJP Research and Evaluation (HJPRAE) was undertaken over three years with an evaluative process embedded in the service from service start-up. At the time it was challenging research as it examines impact and grappled with the internationally renowned challenge of measuring the social determinants of health.

Qualitative and quantitative data have been collected using multiple tools and specific questions.

Findings: 1. The clients of the HJP are complex and more often than not have more than one legal problem and a multitude of other health and social welfare problems. They often feel judged and lack trust in services. They will seek help when they feel they are not judged, where they are respected and where there is service responsiveness. Appointments are problematic – time and place can be critical to engagement, especially for people who have experiences of trauma or negative previous experiences of the legal system. 2. During its life, the Bendigo HJP has provided a significant amount of legal service to clients on a range of matters, often where one client has a significant number of legal issues. The clients’ lives are complicated and building trust takes time. Given the project has only one lawyer co-located at the HJP, the number of clients and client problems tackled is significant in view of the limited staff, funding and resources. 3. The Bendigo HJP is reaching clients who would otherwise not have sought legal help. The role of their trusted health or allied health professional in facilitating that reach has been overwhelmingly critical – 90% of clients interviewed in the HJPRAE said that without the HJP they would not have sought legal help. 4. Clients who have multiple and complex problems reported they were anxious and frightened as they did not know their rights/position. They reported this impacted on their health and wellbeing. The effectiveness and quality of the HJP service and its impact as reported by health/allied health professionals delivered the following relevant responses: • confidence in engaging with services in clients to have increased by 90.9% • knowledge of rights and responsibilities in clients to have increased by 72.7% • knowledge of options and more skilled over time in clients to have increased by 90.9%. 5. The capacity of professionals, due to the HJP, to respond to legal issues with confidence has increased; that is, they have become ‘empowered’.

General Application to Other Replicable Models of HJP Clients turn to ‘trusted’ health/allied health professionals but may not turn to lawyers without the facilitation and transferral of trust. Some clients will not turn to a lawyer as they are not emotionally ready (e.g., due to trauma, fragility, fear) and so the health/allied health professional that they trust becomes an important intermediary for them to gain legal help and information at salient times. A service which is a HJP needs to be ‘opportunistic’ in taking advantage of clients’ health appointments to provide legal assistance – due to complexities of their lives and confusion, lack of confidence and being overwhelmed etc. The capacity of professionals, both lawyers and non-lawyers, as well as client service staff, is key/critical to being able to support clients in a timely way, when in crisis or ready for help. Legal Secondary Consultations (LSCs) ‘are pivotal’; ‘it would not work if we did not have LSCs’. A significant majority of research participants noted that the LSC enables quick, efficient and targeted building of knowledge which can ‘save time’ in the long run. The type of lawyer used has been critical to the success of the Bendigo HJP and should be considered when hiring and recruiting staff. Lawyers can’t ‘just sit in their office’ but need to interact, integrate, not be ‘too stuffy’ or ‘too hierarchical’, ‘avoid jargon’ and show ‘respect’. The type of person used in the role is key to the HJP’s success. Trust and relationships take time to demonstrate an impact and their effectiveness as they are predicated on relationships, human experience, confidence and positive interactions and cannot be driven by a ‘top down’ approach.

Read on SSRN

Centre: CIPL

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

Conflicts in Space and the Rule of Law

Author(s): Cassandra Steer

Given the increase in the number of States and non-State actors becoming active in space, and the increased reliance that militaries have on space technologies, there are growing concerns about the risk of a conflict taking place in outer space. There is currently no binding international legal instrument that effectively deals with conflicts in space. As will be elaborated in this paper, the probability of the conclusion of such an agreement or of any non-binding soft-law instrument in the near future is also very low. We believe that innovative means ought to be devised in this regard. One such means could be the development of a Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS), which would follow in the footsteps of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the more recent Tallinn Manual on International Law Applicable to Cyber Warfare.

Read on SSRN

Centre: CIPL

Research theme: Military & Security Law

Conflicts in Space

Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare

Author(s): Cassandra Steer

This article discusses the ways in which International Humanitarian Law (IHL) applies to the domain of outer space. IHL is applicable as a matter of international law, yet outer space poses some challenges when it comes to specific principles and rules. A brief outline is given of some of the kinds of weapons that have been and might be used in space, as well as the ways in which space assets are used with respect to conflicts on Earth. This is followed by an in depth analysis of the core principles of IHL and how they apply: the principles of distinction, proportionality and precaution in attack. While it is imperative that States recognise that IHL is applicable to all their activities in space that involve conflicts on Earth and/or in space, care must be taken in weighing up the traditional principles and their application to this new domain. As the technology that increases war-fighting capability advances, so does the imperative to understand the applicable legal framework for the use of such technology.

Read on SSRN

Centre: CIPL

Research theme: Military & Security Law

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Modern Equity: Revolution or Renewal from Within?

Author(s): Pauline Ridge

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Legal History and Ethnology, Private Law

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The Boundary between 'Not-for-Profits' and Government

Author(s): Darryn Jensen

This chapter attempts to trace the development of a concept of voluntariness. This cannot be done by reference to a category of 'not-for-profit', for that category is a recent invention. Instead, the history of voluntariness is to be found in the history of two other concepts which might be seen to be distinguishable from government - charity and civil society. These concepts are neither wholly distinct from, nor coterminous with, 'not-for-profit'. Once the histories of these concepts have been considered, the normative determinacy of the concept of voluntariness will be considered in the light of some contemporary intersections of government and not-for-profit activity.

Read on SSRN

Centre: CCL

Research theme: Legal Theory, Private Law

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Constructive Trusteeship: The Perils of Statutory Formulae

Author(s): Darryn Jensen

This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.

Read on SSRN

Centre: CCL

Research theme: Legal Theory, Private Law

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Being Well in the Law: A Guide for Lawyers

Author(s): Stephen Tang, Tony Foley, Vivien Holmes, Colin James

Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

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Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

Author(s): Kath Hall

This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.

In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

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Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice

Author(s): Anthony Hopkins

Indigenous offenders are heavily over-represented in the Australian and Canadian criminal justice systems. In the case of R v Gladue, the Supreme Court of Canada held that sentencing judges are to recognise the adverse systemic and background factors that many Aboriginal Canadians face and consider all reasonable alternatives to imprisonment in light of this. In R v Ipeelee, the Court reiterated the need to fully acknowledge the oppressive environment faced by Aboriginal Canadians throughout their lives and the importance of sentencing courts applying appropriate sentencing options. In 2013, the High Court of Australia handed down its decision in Bugmy v The Queen. The Court affirmed that deprivation is a relevant consideration and worthy of mitigation in sentencing. However, the Court refused to accept that judicial notice should be taken of the systemic background of deprivation of many Indigenous offenders. The High Court also fell short of applying the Canadian principle that sentencing should promote restorative sentences for Indigenous offenders, given this oft-present deprivation and their over-representation in prison. In this article, we argue that Bugmy v The Queen represents a missed opportunity by the High Court to grapple with the complex interrelationship between individualised justice and Indigenous circumstances in the sentencing of Indigenous offenders.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

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What Can We Legitimately Expect from the State?

Author(s): Greg Weeks

The recognition and enforcement of legitimate expectations by courts has been a striking feature of English law since R v North and East Devon Health Authority; ex parte Coughlan [2001] 3 QB 213. Although the substantive form of legitimate expectation adopted in Coughlan was quickly accepted by English courts and received a generally favourable response from public law scholars, the doctrine of that case has largely been rejected in other common law jurisdictions. The central principles of Coughlan have been rejected by courts in common law jurisdictions outside the UK for a range of reasons, such as incompatibility with local constitutional doctrine, or because they mark an undesirable drift towards merits review. The skeptical and critical reception to Coughlan outside England is a striking contrast to the reception the case received within the UK. This issue warrants the detailed scholarly analysis that it receives in this forthcoming book to be published by Hart.

This chapter considers the promises public authorities make to individuals and how they are received. It examines both the capacity of government to create expectations and the legitimacy of people entertaining firm expectations of government and considers the substantive enforcement of legitimate expectations, when government might be estopped from resiling from its representations and in what circumstances government may be liable for making negligent misrepresentations.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan

Author(s): Moeen Cheema

The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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Rights, Religious Pluralism and the Recognition of Difference: Off the scales of justice

Author(s):

Human rights and their principles of interpretation are the leading legal paradigms of our time. Freedom of religion occupies a pivotal position in rights discourses, and the principles supporting its interpretation receive increasing attention from courts and legislative bodies. This book critically evaluates religious pluralism as an emerging legal principle arising from attempts to define the boundaries of  freedom of religion. It examines religious pluralism as an underlying aspect of different human rights regimes and constitutional traditions.

Order your copy online

Centre: CIPL

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

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Editor(s): Donald Rothwell, David Letts, joe bloggs

Centre:

Research theme:

The Law of Deliberative Democracy

The Law of Deliberative Democracy

Author(s): Ron Levy, Graeme Orr,

Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals.

Order your copy online.

Centre: DGAL

Research theme: Legal Theory, Regulatory Law and Policy

Being Well in the Law

Being Well in the Law

Author(s): Tony Foley, Vivien Holmes, Stephen Tang, Colin James, Ian Hickey

When it comes to wellbeing, NSW Young Lawyers, the Australian National University and the Law Society of New South Wales are keen to lead. Being Well in the Law is a toolkit for lawyers. It draws on expert and multidisciplinary knowledge about the breadth of mental health problems and offers ideas to help everybody, young and old, deal with depression, anxiety and stress and learn to better manage the business and pressures of work and life. We all share a responsibility to continue the conversation about mental health. In the legal profession this is especially important as lawyers have a heightened pre disposition to depression and mental illness. 

This small but important book, with its varied suggestions and personal stories from people who have been touched by mental illness, is a solid first step towards a happier and healthier world.

View the guide online, order a free copy online, or pick up a free copy in person

Centre:

Research theme: Law and Psychology, Legal Education, The Legal Profession

Australian Citizenship Law

Australian Citizenship Law 2e

Author(s): Kim Rubenstein

Citizenship is the pivotal legal status in any nation-state. In Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law sheds light on citizenship law and practice and provides the most up-to-date analysis available of the Australian Citizenship Act 2007 (Cth).

Rubenstein’s Australian Citizenship Law is the much-awaited second edition to her highly acclaimed text. It has been cited in High Court decisions, referred to in national and international academic work and used extensively by practitioners working in citizenship law, migration law, constitutional and administrative law and is an essential resource for migration agents.

Moreover, because of its broader analysis, it is crucially relevant to any discipline associated with citizenship, including, history, politics, education or sociology, and to government officials working in the area of citizenship, especially those working in our embassies and consulates.

Purchase your copy here

Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law

Australia's Constitutional Government

Australia’s Constitutional Government

Author(s): , Jack Richardson

This book comprehensively describes Australia’s unique pattern of constitutional government. Jack Richardson was always convinced that the legal basis of federal government and the evolving patterns of power should be understandable — not just to experts in constitutional law, but to people in all walks of life. He believed that knowledge of the principles by which we are governed must be available to the general public, and to participants in the federal system. The author advances expert knowledge by divining those principles. By describing their operation in words intelligible to readers who are not legally qualified, he achieves his aim of acquainting a much wider range of people with the powers that rule them.

The result is a book that will be a great help to students and scholars of law, government, politics and history, as well as a useful guide for administrators, journalists, politicians and legal practitioners. Anyone who needs a straightforward explanation of an element of constitutional government will value the understanding they can easily get from the book.

Order your copy online

Centre: CIPL

Research theme: Constitutional Law and Theory

Australian Constitutional Law

Hanks Australian Constitutional Law Materials and Commentary, 10th Edition

Author(s): James Stellios, D Meagher

This book considers the concepts underlying our Constitution and explores constitutional decision-making in context. It reviews all of the important constitutional decisions of the High Court of Australia, and exposes the issues that arise in those decisions to a critical analysis. The book covers all major areas of study in both constitutional law and public law.

Updates for this edition include the two Williams cases in which the High Court reworked the executive power of the Commonwealth to contract and spend; recent cases developing the Kable principles and considering the validity of State laws against Chapter III implications; important recent cases on the implied freedom of political communication; recent cases on s 92 of the Constitution dealing with internet trade and commerce.

Order your copy online

Centre: CIPL

Research theme: Constitutional Law and Theory

Did Defensive Homicide in Victoria Provide a Safety Net for Battered Women Who Kill? A Case Study Analysis

Author(s): Anthony Hopkins

This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We suggest that, in the absence of the offence of defensive homicide, women like Williams may in the future be convicted of murder, even when they kill in response to family violence and with a genuine belief that their actions are necessary in self-defence.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

The Politics of the Rule of Law

Author(s): Moeen Cheema

In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between “law” and “politics.” However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life- forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

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