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.

Central Bank Money: Liability, Asset, or Equity of the Nation?

Central Bank Money: Liability, Asset, or Equity of the Nation?

Author(s): Will Bateman, Michael Kumhof, Jason G Allen, Rosa M. Lastra, Simon Gleeson, Saule T. Omarova

Based on legal arguments, we advocate a conceptual and normative shift in our understanding of the economic character of central bank money (CBM). The widespread treatment of CBM as a central bank liability goes back to the gold standard, and uses analogies with commercial bank balance sheets. However, CBM is sui generis and legally not comparable to commercial bank money. Furthermore, in modern economies, CBM holders cannot demand repayment of CBM in anything other than CBM. CBM is not an asset of central banks either, and it is not central bank shareholder equity because it does not confer the same ownership rights as regular shareholder equity. Based on comparisons across a number of legal characteristics of financial instruments, we suggest that an appropriate characterization of CBM is as ‘social equity’ that confers rights of participation in the economy’s payment system and thereby its economy. This interpretation is important for macroeconomic policy in light of quantitative easing and potential future issuance of central bank digital currency (CBDC). It suggests that in robust economies with credible monetary institutions, and where demand for CBM is sufficiently and sustainably high, large-scale issuance such as under CBDC is not inflationary, and it does not weaken public sector finances.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3730608

Centre: CIPL

Research theme: Regulatory Law and Policy

Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia

Author(s):

The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales [2015] HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

Read on SSRN

Centre: CCL

Research theme: Regulatory Law and Policy

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Towards Trauma-Informed Legal Practice: A Review

Author(s): Colin James

Vicarious or secondary trauma experience has always been part of legal practice although many do not acknowledge the risk it can have on the mental health, well-being and performance of legal professionals. The listening to, observing and then detailing of traumatic events for the purposes of legal process in some cases may harm lawyers who need to work closely with clients, victims and witnesses. This article reviews the research on trauma in many areas of professional human services that could inform and improve our understanding of legal practice. It examines the discursive history of trauma and recent studies on lawyer well-being, before discussing the controversies about recognising vicarious trauma and the stigma against mental health concerns in the legal profession. The article concludes by reviewing options to assist law firms in considering trauma-informed policy, practices and supervision strategies and to help individual lawyers recognise the value of self-care.

Read on SSRN

Centre: CLAH

Research theme:

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The Essendon Football Club Supplements Saga: Exploring Natural Justice for Team Sanctions within Anti-Doping Regulations

Author(s):

10 October 2016, the Essendon Football Club (EFC) performance enhancing drugs regulatory saga concluded with the Swiss Federal Tribunal (SFT) deciding not to ‘entertain’ Essendon’s appeal of the Court of Arbitration of Sport (CAS)’s guilty finding, thus supporting the World Anti-Doping Authority (WADA). The EFC CAS appeal is a unique case as it is the first time a team (34 players from the one team) have been subject to CAS’s jurisdiction for allegations of doping contrary to the World Anti-Doping Code. One significant concern throughout this regulatory sage was that the team-based nature of the infraction denied individual players natural justice. Central to these concerns is the fact that the players were advised by EFC to take part in the program and that its chief architect, sports scientist Stephen Dank, never gave sworn evidence that was tested in cross-examination. This column investigates whether there are important lessons for team-based anti-doping infractions from the EFC saga.

Read on SSRN

Centre: CLAH

Research theme: Criminal Law

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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.

Read on SSRN

Centre: CCL

Research theme: Law and Technology

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Getting Out of Debt: The Road to Recovery for Victim/Survivors of Family Violence

Author(s): Elizabeth Curran

This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.

The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.

Read on SSRN

Centre: CIPL

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

Law Teachers Speak Out

Law Teachers Speak Out: What do Law Schools Need to Change

Author(s): Colin James

This Chapter presents the results of national surveys of UK and Australian legal academics conducted in 2017 and explores law teachers’ perceptions of their well-being and of their experience of stress at work. First, we consider the neo-liberal landscape of higher education in the 21st Century, a landscape that provides the context and framework for how law teachers experience law school as a work environment. Second, we explain the methodology and results of the studies conducted in the UK and Australia in 2017. Third, we discuss the themes presenting from the law teachers’ responses to the open question: please explain what you think your university could do to improve staff quality of working life? The Chapter concludes with a suggested to-do list for law school leaders to provide a work environment that better supports the well-being of their academics and in turn enhances their capacity to support law student well-being.

Read on SSRN

Centre:

Research theme: Legal Education

Living with Myanmar

Living with Myanmar

Author(s): Jonathan Liljeblad

Since 2011 Myanmar has experienced many changes to its social, political and economic landscape. The formation of a new government in 2016, led by the National League for Democracy, was a crucially important milestone in the country’s transition to a more inclusive form of governance. And yet, for many people everyday struggles remain unchanged, and have often worsened in recent years. Key economic, social and political reforms are stalled, conflict persists and longstanding issues of citizenship and belonging remain.  

The wide-ranging, myriad and multiple challenges of Living with Myanmar is the subject of this volume. Following the Myanmar Update series tradition, each of the authors offers a different perspective on the sociopolitical and economic mutations occurring in the country and the challenges that still remain. The book is divided into six sections and covers critical issues ranging from gender equality and identity politics, to agrarian reform and the representative role of parliament. Collectively, these voices raise key questions concerning the institutional legacies of military rule and their ongoing role in subverting the country’s reform process. However, they also offer insights into the creative and productive ways that Myanmar’s activists, civil society, parliamentarians, bureaucrats and everyday people attempt to engage with and reform those legacies.

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Centre: CIPL

Research theme: Law, Governance and Development

Cybercrime Legislation

Cybercrime Legislation, Cases and Commentary, 2nd edition

Author(s): Gregor Urbas

Cybercrime: Legislation, Cases and Commentary provides a comprehensive analysis of cybercrime legislation and case law in Australian jurisdictions. Since the publication of the first edition, there have been significant developments in legislation, cases and policies directed at cybercrime. More generally, there have been new developments in the regimes governing law enforcement access to data, telecommunications and internet service provider obligations, and key institutions dealing with cyber security and data protection.

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Centre: CIPL

Research theme: Law and Technology

Friends and Foes

Friends and Foes: Human Rights, the Philippine Left and Duterte, 2016-2017

Author(s): Jayson Lamchek

The Philippine left’s short-lived association with the government of Rodrigo Duterte from 2016 vexed political observers, whether sympathetic to or critical of the left. Against the charge that the left was simply subordinated as a political force to Duterte’s multi-class populist-cum-fascist project, this article argues that the left was both friend and foe of Duterte, who promised an aggressive War on Drugs as well as socioeconomic reforms. It situates the left–Duterte relationship within the history of engagement by new political actors with elite democracy in the Philippines since 1987. The friend-and-foe or dual strategy analysis uncovers some of the richness of the left’s progressive engagement with Duterte. This contributes to an understanding of Philippine political history by providing a profile of progressive engagement involving a set of actors different from those who have previously been analysed – viz. national democrats rather than social democrats – and an increasingly authoritarian administration explicitly espousing anti-human rights rhetoric. We specify the conditions for the emergence of the left–Duterte relationship, how it unfolded, and the tipping points that led to its collapse. The findings underscore the complexities and extreme difficulty of transforming Philippine politics through progressive engagement.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

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.

Read on SSRN

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:

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.

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Centre: CLAH

Research theme:

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:

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:

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.

Read on SSRN

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

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