Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

The Dangers of Human Rights-Compliant Counterterrorism

The Dangers of Human Rights-Compliant Counterterrorism: A Critical Review of the Indonesian Approach

Author(s): Jayson Lamchek

Against the prevailing wisdom that legal frameworks can make the fight against terrorism compatible with human rights, the paper offers an extended pause to draw out the bases for disbelief in the power of constitutional law to tame counterterrorism in Indonesia. It argues that the idea of human rights-compliant counterterrorism partakes of a fantastical quality and involves a great deal of unawareness of counterterrorism as a hegemonic order. The identification of counterterrorism with human rights action is a defining feature of this counterterrorism hegemony. The paper contextualizes this argument in Indonesia. It offers explanations for how Indonesia’s counterterrorism achieved acceptability despite the Constitutional Court having had no role to play in shaping it and despite the counterterrorism legal framework lowering human rights standards. Three characteristics of Indonesian counterterrorism, namely, its focus on Islamist militants, that it is police-led and criminal justice-based, allow it to be presented as consistent with constitutional values. The rhetoric of counterterrorism as fundamentally consistent with human rights helps maintain impunity for extralegal killings and torture of terrorism suspects by police. The paper concludes with an invitation to develop a human rights practice that rejects rather than seeks accommodation with counterterrorism hegemony.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

The Dancer from the Dance

The Dancer from the Dance

Author(s): Desmond Manderson

This essay argues that representations of public space both illustrate concepts of governance in visual terms, and actively constitute, through image, those modes. Starting from images of public space in Lorenzetti and Hobbes, the author moves to consider contemporary representations of public space under the influence of neoliberalism. A particular focus is place on video games as constitutive of relations to the public realm, space and order. A sub theme of the essay is the role of pandemics in how we constitute a vision of the public realm. Lorenzetti, Hobbes, and neoliberalism can both be seen as having been profoundly influenced by concepts and varieties of disease.

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Centre: CLAH

Research theme: The Legal Profession

Editors' Introduction to Index Volume 2 (2020)

Editors' Introduction to Index Volume 2 (2020)

Author(s): Desmond Manderson

This introduction contextualises the new interdisciplinary field of law and visual studies, with a particular emphasis on new work on Australian legal and art history.

Read on SSRN

Centre: CLAH

Research theme: The Legal Profession

We are not Epidemiologists

“We are not Epidemiologists”: COVID-19 in the High Court

Author(s): Amelia Simpson

The High Court of Australia is soon to consider the constitutional validity of state border closures in response to COVID-19. This comment explores the constitutional issues raised in the current proceedings of Palmer v State of Western Australia by reference to the current state of High Court jurisprudence in relation to sections 92 and 117. Both provisions guarantee some degree of freedom of movement and equal treatment to persons moving between states or wishing to do so. Both, however, turn on questions of proportionality that will require the Court to decide how deferentially it should regard the public health experts on whose advice the border closures have proceeded. These proceedings might also provide the Court with an opportunity to extend its ‘structured’ approach to proportionality, currently confined to the political communication setting, into new terrain.

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Centre: CIPL

Research theme: Health, Law and Bioethics

Ethical Climate, Job Satisfaction and Wellbeing

Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers

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

It is clear from research that workplace environments can influence employees to behave ethically or unethically. To date, such research has focused on corporate workplace culture; legal workplaces have come under limited scrutiny. This Article reports on a study that expands that scrutiny by surveying perceptions of ethical climate in legal practices. The study breaks new ground by correlating perceptions of ethical climate with measures of psychological health, organizational learning culture, job and career satisfaction, and under-standings of professionalism. Our findings are clear enough for legal practice managers, professional bodies, and regulators to take note of the organizational factors linked to sound mental health and job satisfaction and to develop interventions aimed at promoting these factors.

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Centre: PEARL

Research theme: Legal Education

Using multi-member panels to tackle RSD complexities

Using multi-member panels to tackle RSD complexities

Author(s): Jessica Hambly

Research across a range of European jurisdictions suggests that the use of multi-member judicial panels at appeal stage improves the quality and fairness of RSD. 

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Centre: CIPL

Research theme: International Law

Judgment In the Matter of an Application

Pre-charge identification of a minor and Article 14 of the ECHR: Judgment In the Matter of an Application by JKL (A Minor)

Author(s): Faith Gordon

Pre-charge concerns in relation to balancing the interests of all parties, while maintaining one of the core foundations underpinning the criminal justice system – the presumption of being ‘innocent until proven guilty’.

The issue of pre-charge identification has been the subject of debate in recent years following the publication of the identity of a number of celebrities who were arrested in relation to allegations of historic sexual abuse and were subsequently released without charge.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Court of Conscience

Court of Conscience ‘Rights and Representation: Children and the Law’

Author(s): Faith Gordon

The Court of Conscience is UNSW Law Society's premier social justice publication. As a multi-award-winning journal, run by a voluntary student editorial board, the publication aims to inspire interest in social justice in the UNSW community and beyond. Dr Gordon's chapter focuses on children's rights in the digital age. 

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Centre: CIPL

Research theme: Human Rights Law and Policy

Data Protection and Consumer Protection

Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer

Author(s): Damian Clifford

This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.

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Centre: CCL

Research theme: Law and Technology

Using Travaux to Interpret Treaties: A Proposed Sliding Scale

Author(s): Esme Shirlow

Materials produced during the negotiation of treaties, commonly called travaux préparatoires, are given formal significance as a ‘supplementary means’ of treaty interpretation under article 32 of the Vienna Convention on the Law of Treaties (‘VCLT’). Travaux present both risks and opportunities for treaty interpretation, and international adjudicators have differed in how they define the rationale for referring to travaux; how they use these materials, and even more fundamentally, what materials they classify as travaux. This article proposes a methodology to guide the more structured identification and use of travaux. The article uses the interpretation of investment treaties in investor-state arbitration as a case study to illustrate the proposed approach and its utility. The discussion, including the proposed sliding scale approach, is nonetheless equally relevant for interpreting all manner of treaties. Section I illustrates three practical challenges associated with the use of travaux in investment treaty disputes to highlight the advantages and pitfalls associated with using travaux. Section II considers what may constitute ‘travaux’. Based on an extensive review of arbitral practice, Section II argues in favour of a sliding scale approach to travaux, whereby treaty interpreters assess the utility of a given material by reference to its precise qualitative features and the context of interpretation. Section III considers how arbitral tribunals have used – and should use – travaux by reference to the interpretive framework established by the VCLT. Section IV considers how investment tribunals have regulated access to and use of travaux through their powers to order document production.

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Centre: CIPL

Research theme: International Law

Regulating transparency on human rights and modern slavery in corporate supply chains

Regulating transparency on human rights and modern slavery in corporate supply chains: the discrepancy between human rights due diligence and the social audit

Author(s): Jolyon Ford

This article examines some of the limits of reporting schemes as a tool for addressing business-related human rights risks and for engaging business in a collaborative effort to improve human rights. Australia’s Modern Slavery Act 2018 (Cth) (MSA) is the latest example globally of a legislative scheme intended to foster corporate action on such risks within businesses’ operations and supply chains. Some such schemes require firms to implement human rights due diligence (HRDD) measures, as envisaged by the 2011 UN Guiding Principles on Business and Human Rights. However, the MSA’s model is best described as a disclosure or reporting regime. Such regimes do not require businesses to take HRDD measures; rather, they only require businesses to report on any such measures that they have taken during the relevant reporting period. In this article, we analyse some of the assumptions underlying the design of reporting-based schemes. We then consider one practice used by firms facing supply chain scrutiny: social auditing. We caution against an over-reliance on this practice, which is not synonymous with HRDD. It does not necessarily promote fulsome, non-cosmetic reporting compliance or foster corporate action on underlying human rights risks. We finally offer some alternative approaches that could improve the effectiveness of measures to address human rights risks in supply chains.

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Centre: CCL

Research theme: Human Rights Law and Policy

War and Peace in Outer Space

War and Peace in Outer Space

Author(s): Cassandra Steer

This book delves into legal and ethical concerns over the increased weaponization of outer space and the potential for space-based conflict in the very near future. Unique to this collection is the emphasis on questions of ethical conduct and legal standards applicable to military uses of outer space. No other existing publication takes this perspective, nor includes such a range of interdisciplinary expertise.

The essays included in this volume explore the moral and legal issues of space security in four sections. Part I provides a general legal framework for the law of war and peace in space. Part II tackles ethical issues. Part III looks at specific threats to space security. Part IV proposes possible legal and diplomatic solutions. With an expert author team from North American and Europe, the volume brings together academics, military lawyers, military space operators, aerospace industry representatives, diplomats, and national security and policy experts. The experience of this team provides a collection unmatched in any academic publication broaching even some of these issues and will be required reading for anyone interested in war and peace in outer space.

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Centre: CMSL

Research theme: Military & Security Law

Experiencing Asylum Appeals

Experiencing Asylum Appeals: 34 Ways to Improve Access to Justice at the First-tier Tribunal

Author(s): Jessica Hambly

There is ongoing concern that Britain’s courts are places that are overwhelming, disorientating and confusing for court users. Asylum seekers are some of the most marginalised people in society and existing research highlights the difficulties they face in disclosing evidence throughout the legal process. Without an accessible process, appellants may be unable or unwilling to speak and participate in their appeal, and therefore important pieces of evidence may not be considered and justice may not be served. Although a lot of attention has been paid to asylum law by academics and policy makers alike, its day to day implementation often escapes critical academic scrutiny. This is arguably because relatively few non-legal scholars study the law, meaning that most analysis is focussed on substantive and doctrinal legal issues rather than questions of process, implementation and experience. It is also extremely time consuming to observe a sufficient number of hearings to be able to draw general conclusions about day to day issues.

Our project adopts an inter-disciplinary perspective on the day to day workings of asylum law within the UK’s asylum appeal hearings. In the following sections we report on a project which examined what happens during asylum appeals by closely observing them from the public areas of hearing rooms. Our observations ran from 2013 to 2019. We complement the perspective our observations offer with interview evidence from appellants as well as others involved in the process.

Co-authors: Nick Gill, Jennifer Allsopp, Andrew Burridge, Daniel Fisher, Melanie Griffiths, Jessica Hambly, Jo Hynes, Natalia Paszkiewicz, Rebecca Rotter and Amanda Schmid-Scott.

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Centre: LRSJ

Research theme: Human Rights Law and Policy, Law and Social Justice

AIAL Forum

Government schemes for extrajudicial compensation: an assessment

Author(s): Greg Weeks, Sarah Lim, Nathalie Ng

Providing redress where loss has been suffered is not the sole preserve of the judiciary. At least in part, this is because loss can be suffered by individuals in the absence of legal liability. While this is not the exclusive province of public entities, it is more commonly the case that ‘moral liability’ justifying the payment of compensation is borne by public entities. For one thing, public entities generally have a much greater capacity to cause individuals — even relatively sophisticated or commercially adept parties — to act in a way that they otherwise might not. Government and other public figures come cloaked in authority, with the consequence that people are more likely to comply with requests or instructions. Such compliance will frequently not create a legal obligation if the individual suffers loss. Compensation schemes are premised on the belief that the action might nonetheless create moral obligations and that these can be a sufficient basis for compensation to issue.

This article considers the provision of compensation outside the legal system, usually paid on the basis of ‘moral liability’ rather than a claim founded in law. There are a number of different schemes in place which may achieve this end, across every Australian jurisdiction and they are both statutory and executive.

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Centre: CIPL

Research theme: Administrative Law

Book Review: Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration

Author(s): Esme Shirlow

Investment treaties and investor-State arbitration have both been subject to sustained criticism and calls for reform in recent years. Critics have called, inter alia, for a ‘rebalancing’ of treaties to address perceived asymmetries between States and investors, and for a reconnection of investment law to other bodies of law. As reform discussions have matured, analysis of how to address these asymmetries and fragmentations in investment law have become increasingly nuanced. Contributing to this line of scholarship, Martin Jarrett‘s book tackles difficult questions associated with when an investor’s ‘faultworthy’ conduct should impact the analysis of a host State’s responsibility for internationally wrongful conduct under an investment treaty. Jarrett’s book introduces and examines three defences to investor-State arbitration claims, which are each based on an investor’s contribution to investment damage and/or an investor’s misconduct in connection with a protected investment. Jarrett’s analysis holds important implications for the apportionment of liability between States and investors for their contribution to the injury at issue in an investor-State arbitration claim.

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Centre: CIPL

Research theme: International Law

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Privacy at the Intersection of Public Law and Private Law

Author(s): Jelena Gligorijevic

To demonstrate that any common law system can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper argues that: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.

Read on SSRN

Centre: CIPL

Research theme: Private Law

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Maladministration: the Particular Jurisdiction of the Ombudsman

Author(s): Greg Weeks

The office of the ombudsman is much misunderstood. Is it better viewed as part of the executive or the judiciary? Is it a fragile institution, unprotected with security of tenure? Is it a ‘toothless tiger’? The one constant in the face of such inquiries is that ombudsmen don’t seem to care, or at least carry on with great effectiveness as though they don’t. I would argue in any case that such queries are beside the point and that the one thing that must be understood about the ombudsman is that it is an office with a particular purpose.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

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Why Outer Space Matters for National and International Security

Author(s): Cassandra Steer

Despite the fact that outer space may only be used for peaceful purposes under the 1967 Outer Space Treaty, most technologically advanced States today have a high military dependence on space. In other words, space is “militarized,” but not yet “weaponized.” At the same time, a space arms race has been underway for some time, and appears to be accelerating in recent years. In 2019, India joined what it proudly dubbed the “elite club” of States with the capability to launch direct ascent anti-satellite weapons, replicating earlier tests by China, Russia and the U.S., all of whom have also demonstrated more covert forms of anti-satellite or “counterspace” technologies. The establishment of the U.S. Space Force at the end of 2019 and the response of allies and adversaries alike is emblematic of the escalatory cycle that appears to be in place. Today nearly every country is dependent in some way on space-enabled capabilities, many of which are supplied not by States but by commercial entities. This report outlines the historical and legal context, and argues for increased cooperation and transparency to improve the stability and security of outer space for national and international security.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

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The Populist Challenge and the Future of the United Nations Security Council

Author(s): Jeremy Farrall

This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.

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Centre: CIPL

Research theme: International Law

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Populism, Backlash and the Ongoing Use of the World Trade Organization Dispute Settlement System: State Responses to the Appellate Body Crisis

Author(s): Imogen Saunders

Since 2017, World Trade Organization (‘WTO’) Member States have been unable to reach a consensus on Appellate Body (‘AB’) appointments and reappointments. The United States is spearheading a populist backlash against procedural and substantive aspects of the dispute settlement system of the WTO. As a consequence of this, the AB is now facing an unprecedented crisis. The jewel in the crown of the WTO dispute settlement system will be missing: yet countries are still bringing complaints. This paper considers US actions through the framing of populism and backlash, and assesses responses from other countries.

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Centre: CIPL

Research theme: International Law, Legal History and Ethnology

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