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.

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s): Kath Hall

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

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Centre: CCL, CIPL, LGDI

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

The Deliberative Case for Constitutional Referenda

Author(s): Ron Levy

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

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Centre: CIPL, DGAL

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

Public Health Legislation Prohibiting Sports-Embedded Gambling Advertisting

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Australian Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.

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High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey V the Queen and Zaburoni V the Queen

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In 2017, the High Court of Australia in Aubrey v The Queen (2017) 91 ALJR 601; [2017] HCA 18 considered the term “inflict” grievous bodily harm, under common law, and expanded its interpretation to incorporate nonviolent and non-immediate infection of a disease, overturning a 120 year authority in R v Clarence (1888) 22 QBD 23. In the previous case of Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, the High Court allowed an appeal from the Qld Supreme Court finding that repeated acts of unprotected sexual intercourse by a man who knew he was infected with HIV/AIDS, though callous and reckless, did not constitute intention to infect his female partner; consequently, he could be found guilty of a lesser offence of inflicting grievous bodily harm which carried a maximum 14-year prison sentence rather than life imprisonment. These decisions illustrate a court intersecting with an emerging trend to use legislation creating criminal offences to deter those who intentionally or recklessly infect others with life-shortening diseases.

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Challenging the Legal Profession A Century On: The Case of Edith Haynes

Author(s): Margaret Thornton

This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

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Centre: CIPL, CLAH, PEARL

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

Delegated Legislation in Australia

Delegated Legislation in Australia, 5th edition

Editor(s): Dennis Pearce, Stephen Argument

Now in its fifth edition, Delegated Legislation in Australia provides updated and detailed coverage of all aspects of subordinate legislation, and is an essential reference for legislators, public officials at all levels of government, judicial officers and lawyers. It is the latest addition to the LexisNexis Black and Silver series.

Legislation made by various government and other bodies under the authority of an Act of Parliament far exceeds in volume the legislation made by Parliament in the form of statutes. Delegated Legislation in Australia includes a comprehensive overview of why and how delegated legislation is used to impose obligations on both citizens and business, and in what forms such legislation takes. Commentary is provided for each Australian jurisdiction as to the means used by Parliament to review the content of the legislation, and assess and compare the performance of each parliament.

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Centre: CIPL

Research theme: Administrative Law, Regulatory Law and Policy

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The Foundations of Australian Public Law: State, Power, Accountability

Author(s): Anthony Connolly

In The Foundations of Australian Public Law, Anthony J. Connolly brings together the two traditionally discrete areas of constitutional and administrative law to present Australian public law as a single, integrated body. Exploring the themes of state, power and accountability in Australia, the text also makes reference to the law of international jurisdictions, where students are informed by contemporary public law theory. Particular attention is also given to the rise of global public law and the increasingly cosmopolitan nature of the subject in Australia. A comprehensive companion website complements the theory and discussion throughout the text and includes chapter summaries, further readings and discussion questions to encourage extended student learning. Written by a leader in the field, The Foundations of Australian Public Law is a key text for students looking to gain a comprehensive understanding of public law across Australia's federal, state and territory jurisdictions.

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Centre: CIPL

Research theme: Administrative 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.

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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.

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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.

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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.

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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.

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Centre: CCL

Research theme: Legal Theory, Private Law

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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.

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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

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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.

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Centre: CIPL, PEARL

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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Evaluating Consumer Action’s Worker Advice Service, June 2016

Author(s): Elizabeth Curran

This is a report of the Consumer Action Law Centre. Dr Liz Curran was an adviser on the project.

The focus of this evaluation sits within a quality framework of continuous development, reflection and improvement of that service.This evaluation report and the quality framework recognises the extent of unmet legal need in Victoria and the critical role non-legal agencies can play in helping meet that need.

In addition to providing free legal assistance to individuals, Consumer Action Law

Centre (CALC) provides legal secondary consultations (LSC) to Victorian financial counsellors and other community workers through a dedicated telephone legal advice service.

Legal Secondary Consultations (LSC) are defined as where a lawyer offers a non-legal professional (such as a doctor, nurse, youth worker, social worker or financial counsellor) legal advice or information on legal processes (such as what happens at court, and how to give evidence or structure reports for a court to provide the required considerations), or on their professional and ethical obligations, or guides the non-legal professional through tricky situations involving their client or their work for clients. Critically, LSCs can build capacity in non-legal professionals likely to come into contact with the most challenging problems, so as to be able to identify or quickly verify that a problem is capable of a legal solution.

This orientation towards collaborative, holistic and joined-up service delivery is reflected in CALC’s current strategic plan, which includes actions to explore relationships with other community support agencies and catalyse new approaches to meeting unmet need and ‘hard-to-reach’ communities.

Dr Curran was adviser on the project and the report and data collection was undertaken by the Consumer Action Law Centre who have given the author permission to place the report on SSRN, so as to share with others how LSC can enable non-legal professional support, enhance multi-disciplinary practice and reach more clients who are currently excluded from gaining legal help for due to a number of barriers.

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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

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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?

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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.

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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.

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Centre: CIPL

Research theme: Administrative Law

Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between ARC Justice Ltd and Bendigo Community Health Services

Author(s): Elizabeth Curran

This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017.

ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage.

ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution.

This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised.

The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.

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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

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.

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Centre: CIPL, LGDI

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

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