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.

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s):

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material.

The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH

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

Australia

Author(s): Donald Rothwell

This is a chapter on Australia for a forthcoming book that will provide a comparative perspective on the role of domestic courts in enforcing treaties. The book will be published by Cambridge University Press.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

Regulating Impartiality: Electoral Boundary Politics in the Administrative Arena

Author(s): Ron Levy

The author examines impartiality in cases of politically contentious decision making. Many jurisdictions delegate decisions over matters such as the establishment of fair election ground rules to independent bodies. Some of these bodies, including Canada's Federal Electoral Boundaries Commissions (FEBCs), attract widespread trust and are by most accounts substantially impartial. In contrast, commissions empanelled to draw electoral boundaries in the United States, and to a lesser extent in certain Canadian provinces, are often plagued by partisanship.

The author canvasses approaches to controlling partisanship, relying on a series of interviews conducted with boundaries commissioners and on interdisciplinary literature on trust and trustworthiness in governance. Commentators often favour bolstering formal constraints on FEBC discretion. However, the author concludes that traditional administrative law models favouring such constraints are often inadequate. In politically sensitive cases these methods frequently catalyze partisanship. Proposals for more nuanced design - design sensitive to the complex interactions between law and administrative culture in cases where the potential for partisanship is high - are better but rarer. The author focuses in particular on the use of ambiguity in legal and institutional design. Although this approach is counterintuitive in light of rule-of-law assumptions favouring clarity, it has nevertheless gained traction in commentary and has long been at work in practice. The author argues that extensively ambiguous design, as displayed by the complex federal readjustment processes in Canada, has helped to develop the widely admired impartial decision-making cultures of the FEBCs.

Read on SSRN

Centre: CIPL, DGAL

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

State/Territory Human Rights Legislation in a Federal Judicial System

Author(s): James Stellios

The Australian Capital Territory and Victoria have enacted human rights legislation. These legislative schemes empower the respective Supreme Courts to make declarations of inconsistency where legislation cannot be interpreted consistently with legislatively declared human rights. The declarations have no impact on the validity of legislation or on anyone's rights. State and Territory Supreme Courts, however, operate within a federal judicial system, and various constitutional difficulties deriving from Ch III of the Constitution present significant obstacles to the effective operation of these schemes. This article considers these constitutional difficulties and suggests that future State and Territory human rights legislation will have to be designed with these constitutional constraints in mind.

Read on SSRN

Centre: CIPL

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

Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community

Author(s): Kim Rubenstein

This chapter argues that differing views underpinning the debate about dual citizenship are mirrored in policy discourse about the place of multiculturalism in Australia. Globalization has and continues to have a substantial impact upon legal status and membership and identity in both the nation-state and in the international legal system. These legal changes reflect the shifting notions of membership both in the Australian domestic framework and in the international framework. Moreover, these changes must be taken into account in balancing rights and responsibilities in a diverse society, so that multiculturalism and cultural diversity continue to be affirmed within the legal framework and public policy in the same way dual citizenship has been accepted.

Read on SSRN

Centre: CIPL, CLAH

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

Looking for the 'Heart' of the National Political Community: Regulating Membership in Australia

Author(s): Kim Rubenstein

When a community determines who can come into its territory, and who can later become full members, it reflects upon and reaches, in the words of United States academic Linda Bosniak, 'deep into the heart of the national political community, and profoundly affects the nature of relations among those residing within.' Given Australia is fundamentally a nation of people who have at some point relatively recently been outsiders, let in by those who have arrived ahead of them, there is a lot unresolved within the 'heart' of Australia.

In this article, I draw from my work on Australian citizenship to argue that the phenomenon of offshore processing is part of an overall policy that forces outside of the community, and further from citizenship and membership, the 'alien'. It is a product of the Australian constitution which defines who its members are, by who they are not. This is a consequence of a constitution that gives the Commonwealth immense power over 'aliens' - a power that reflects back upon those who are not aliens, and impacts upon the identity of all Australian citizens. Finally, it is a result of a belief by those in power that the state has an absolute right to determine who comes into its borders.

Read on SSRN

Centre: CIPL, CLAH

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

The (Limited) Significance of the Individual in Section 117 State Residence Discrimination

Author(s): Amelia Simpson

The High Court has yet to resolve a clash of paradigms pervading the reasoning in Street v Queensland Bar Association, the leading case on the Constitution's s 117 prohibition of interstate residence discrimination. Some among the seven separate judgments in that case view s 117 as a non-discrimination rule grounded in intrinsic concern for the individual. Others understand the provision in instrumental terms, viewing its protection of individuals as nothing more than a vehicle for securing federal-structural goals. Neither view clearly prevailed in Street or in subsequent cases. This article explains why a federal-structural understanding of s 117 should be favoured, for reasons of constitutional principle and of consistency with other areas of constitutional law. It also considers what that means for s 117's application in the future, as to the kinds of evidence, reasoning, and comparative guidance that will be most pertinent.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

From the Hudood Ordinances to the Protection of Women Act: Islamic Critiques of the Hudood Laws of Pakistan

Author(s): Moeen Cheema

This paper is an attempt to present an impartial review of the Islamized laws pertaining to sexual offences in Pakistan and to highlight the major structural and theoretical problems therein, paying particular attention to the perspectives of the modernist Islamists, human rights lawyers as well as traditionalist Islamic scholars. We hope to demonstrate that there is a set of fundamental theoretical disagreements between the modernist and traditional Islamic accounts which preclude the possibility of full agreement on the scope, remit and applicability of these laws. Over the last two decades the Shariat (Islamic) courts, although appearing to be responsive to some of the human rights criticisms and political opposition, have been unable to define the underlying philosophical premises on the basis of which they interpret and apply these laws. The legislature too has failed to resolve the fundamental tensions and recent legislative interventions represent a compromise between the two perspectives, while also accommodating the human rights critique through a number of procedural safeguards. This is typical of recent efforts at law reform in the context of 'de-Islamization' and means that in reality the real debate concerning the nature and scope of Islamic laws regulating sexual conduct is only being deferred.

Read on SSRN

Centre: CIPL, LGDI

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

Using Assessment Practice to Evaluate the Legal Skills Curriculum

Author(s): Molly Townes O'Brien

A comprehensive audit of the skills curriculum offered to students in a Bachelor of Laws program yielded important insights about the collective impact of assessment tasks on the hidden and operational skills curriculum. This qualitative case study supports the views (1) that assessment tasks provide significant skills practice and performance opportunities for students; (2) that assessment provides students with important cues about what type of learning is valued; and (3) that review of assessment practices across the curriculum can provide important information for curricular reform.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Exploring the Group-Identity Function of Criminal Law

Author(s): Molly Townes O'Brien

In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. The problem of disproportionate incarceration is not therefore a problem of one ethnic group or one set of historical circumstances. It is a human problem that is fundamentally connected to social group identity. This essay conducts a preliminary exploration of the role that criminal law serves in group-identity formation. It suggests that building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

Regulating Impartiality: Electoral Boundary Politics in the Administrative Arena

Author(s): Ron Levy

The author examines impartiality in cases of politically contentious decision making. Many jurisdictions delegate decisions over matters such as the establishment of fair election ground rules to independent bodies. Some of these bodies, including Canada's Federal Electoral Boundaries Commissions (FEBCs), attract widespread trust and are by most accounts substantially impartial. In contrast, commissions empanelled to draw electoral boundaries in the United States, and to a lesser extent in certain Canadian provinces, are often plagued by partisanship.

The author canvasses approaches to controlling partisanship, relying on a series of interviews conducted with boundaries commissioners and on interdisciplinary literature on trust and trustworthiness in governance. Commentators often favour bolstering formal constraints on FEBC discretion. However, the author concludes that traditional administrative law models favouring such constraints are often inadequate. In politically sensitive cases these methods frequently catalyze partisanship. Proposals for more nuanced design - design sensitive to the complex interactions between law and administrative culture in cases where the potential for partisanship is high - are better but rarer. The author focuses in particular on the use of ambiguity in legal and institutional design. Although this approach is counterintuitive in light of rule-of-law assumptions favouring clarity, it has nevertheless gained traction in commentary and has long been at work in practice. The author argues that extensively ambiguous design, as displayed by the complex federal readjustment processes in Canada, has helped to develop the widely admired impartial decision-making cultures of the FEBCs.

Read on SSRN

Centre: CIPL, DGAL

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

Corrosive Leadership (or Bullying by Another Name): A Corollary of the Corporatised Academy?

Author(s): Margaret Thornton

The literature reveals that the incidence of bullying is increasing in corporate workplaces everywhere. While the data is scant, it suggests that bullying in universities is also on the increase. Interviews with Australian academics support this finding. It is argued that the trend has to be understood in light of the pathology of corporatisation, which is designed to make academics do more with less. The focus on productivity parallels the harassment to which workers in the private sector may be subjected in the hope that they will work harder and maximise profits. Avenues of redress are considered which show that dignitary harms remain inchoate as legal harms. While common law and anti-discrimination legislation regimes may occasionally offer a remedy to targeted individuals, it is averred that these avenues are incapable of addressing the causative political factors that induce corrosive leadership.

Read on SSRN

Centre: CIPL, CLAH

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

The Arctic in International Law: Time for a New Regime?

Author(s): Donald Rothwell

Long neglected in terms of international governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective regime. Whilst the Arctic is not plagued by unresolved territorial disputes, there is the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. When this issue is added to the growing alarm over the impact of climate change upon the Arctic, which brings with it not only associated significant environmental change but also increased access within the region, it becomes clear that a region which for all of the Twentieth Century was pushed to the side when it came to the regulation of international affairs has the potential to take centre stage as state interests are awoken and global concerns advance. This paper reviews some of these recent developments with a particular focus upon outer continental shelf claims to the Arctic Ocean, navigational rights and freedoms within the Northeast and Northwest Passage, and the development of the Arctic Council. It argues that the circumstances are ripe for the development of an Arctic Treaty, borrowing from some of the concepts and principles which have been adopted in Antarctica.

Read on SSRN

Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

The Retreat from the Critical: Social Science Research in the Corporatised University

Author(s): Margaret Thornton

This paper considers how the contemporary environment is inducing a less critical approach towards research and impacting on academic freedom. It argues that it is not only the interventionist acts of Ministers and terror censorship that academics need to worry about, for the need to satisfy funding bodies is more insidiously exercising a depoliticising effect on research.

Read on SSRN

Centre: CIPL, CLAH

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

The Evisceration of Equal Employment Opportunity in Higher Education

Author(s): Margaret Thornton

This paper considers the way in which neoliberalism has impacted on equal employment opportunity (EEO) within the academy. Instead of a focus on the common good, there has been a shift to promotion of the self within the market. Higher education has not been immune from the contemporary imperative to commodify and privatise. Corporatisation has resulted in top-down managerialism, perennial auditing and the production of academics as neoliberal subjects. Within this context, identity politics have either moved to the periphery or disappeared altogether.

Against the background of the ramifications of the socio-political shift and the transformation of the university, the paper considers the rise and fall of EEO and the emergence of new discourses, such as that of diversity, which better suit the market metanarrative. The market has also induced a shift away from staff to students, inviting the question is to whether EEO is now passé.

Read on SSRN

Centre: CIPL, CLAH

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH

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

The Expanding Role of Process in Judicial Review

Author(s): Greg Weeks

This article examines the state of the law of procedural fairness and procedural error, demonstrating that inadequacy of process is now central to findings that decisions of the Executive are so lacking in quality as to manifest an error of law. The article argues that fairness of outcome and legitimacy of review need not be defined only in relation to the faultlessness of process.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Governor Arthur’s Proclamation: Aboriginal People and the Deferral of the Rule of Law

Author(s): Desmond Manderson

2007 was a tumultuous year in Australian politics, culminating on November 24 with Federal elections in which the highly conservative Liberal Party government led by Mr. John Howard was, after eleven years in government, decisively defeated at the polls. Of particular note in that result was the defeat of the Prime Minister in his own electorate, and the dramatic and unexpected defeat of the Minister for Families and Indigenous Affairs, Mal Brough, in his. Both have now left politics for good. But their legacy lives on, and it is my contention that the most significant aspect of that legacy is legislation which, enacted with unseemly haste and in the dying days of the Parliament, profoundly alters the legal treatment of Australian Aboriginal people in the Northern Territory, a self-governing but sparsely populated region the size of France, Italy, and Spain combined. One-third of the Territory’s population is Aboriginal, far and away the most proportionally significant Indigenous population in the country. Yet very little serious analysis of the sweeping and complex laws proclaimed in August 2007 has been attempted. Such an analysis remains crucial not just because of the relationship between Indigenous and other people which it reflects but because the Labor Party, albeit reluctantly, voted in favor of the legislation when it was enacted. Now in government it has shown a marked reluctance to re-open the issue. Indeed at times Jenny Macklin, the new Minister for Indigenous Affairs, has talked about extending the laws to other Australian jurisdictions. Furthermore, to the extent that the new government has mooted changes to aspects of the legislation, the Labor Party does not have a majority in the Senate and will consequently face considerable difficulty in getting its amendments through the Parliament. Given the wave of emotion on which the legislative package was carried, and with which criticisms to its provisions are still fiercely met, they may feel disinclined to try very hard. Unless a serious critique is mounted which demonstrates as clearly as possible the ways in which these laws undermine basic principles of the Australian legal system, the opportunity to amend them will soon be lost and the fate of many Aboriginal communities as soon sealed. In bringing readers’ attention to the implications of the laws pertaining to the ‘intervention in the Northern Territory’, and which ought to concern all who have an interest in upholding the traditions of common law legality, I propose in this essay to set the contemporary issues against a broader theoretical debate, and with the assistance of two distinct perspectives.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

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