Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

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Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill

Author(s): Anthony Hopkins

Equality is a fundamental concern of human existence. Expressed in the principle of equality before the law it requires that those who come before the law are entitled to be treated as being of equal value and to be given ‘equal consideration’. In circumstances where those who come before the law are marked by their differences, giving of equal consideration requires that difference be understood and taken into account. The identification of difference does not of itself determine the question of whether different treatment is warranted in the interests of equality. However, this article argues that understanding difference is a precondition for the promotion of true equality and that, in pursuit of understanding difference, it is necessary for us to acknowledge the limitations of our capacity to understand the lived experience of ‘others’ and to actively work to engage with these experiences. In the context of the criminal justice system, we over abused women who kill as illustrative of this need, focusing upon the availability and operation of self-defence in England/Wales, Queensland and Victoria. In doing so, we consider the capacity of the law, legal process and legal actors to engage with the lived experiences of these women, highlighting the im portance of ‘informed imagining’.

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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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Women Judges, Private Lives: (In)Visibilities in Fact and Fiction

Author(s): Margaret Thornton, Heather Roberts

Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.

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Centre:

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Law, Governance and Development, Legal Education, Legal History and Ethnology, Private Law, The Legal Profession

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Artificial Islands and Territory in International Law

Author(s): Imogen Saunders

Artificially created islands are a contemporary reality, created and used for military and non-military purposes. Analysis of such islands has largely been limited to their status under United Nations Convention on the Law of the Sea (UNCLOS) regime. Their position under general international law, however, remains unclear. In particular, the question of whether artificial islands can constitute sovereign territory remains unanswered. This article analyses the concept of territory in international law in the context of artificial islands, arguing that both the doctrine of territory and the strictures of UNCLOS do not prevent artificial islands as constituting territory, capable of sovereign appropriation: albeit territory not generating a territorial sea. Indeed, understanding artificial islands as potentially constituting territory allows for a more comprehensive positioning of such islands in regards to other general international law doctrines including the unlawful acquisition of territory.

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Centre: CIPL

Research theme: International Law, Legal History and Ethnology

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Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

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Rights in the Australian Federation

Author(s): James Stellios

The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched Bill of Rights. Yet, Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.

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Centre: CIPL

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

Visual: Representations, Technologies, and Critique

Law and the Visual: Representations, Technologies, and Critique

Editor(s): Desmond Manderson

In Law and the Visual, leading legal theorists, art historians, and critics come together to present new work examining the intersection between legal and visual discourses. Proceeding chronologically, the volume offers leading analyses of the juncture between legal and visual culture as witnessed from the fifteenth to the twenty-first centuries. Editor Desmond Manderson provides a contextual introduction that draws out and articulates three central themes: visual representations of the law, visual technologies in the law, and aesthetic critiques of law. A ground breaking contribution to an increasingly vibrant field of inquiry, Law and the Visual will inform the debate on the relationship between legal and visual culture for years to come.

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Centre: CLAH

Research theme: Law and Gender, Law and Psychology, Law and Religion

The Cambridge Handbook of Deliberative Constitutionalism

The Cambridge Handbook of Deliberative Constitutionalism

Editor(s): Ron Levy, Hoi Kong, McGill University, Montréal, Graeme Orr, University of Queensland, Jeff King, University College London

Deliberative democratic theory emphasises the importance of informed and reflective discussion and persuasion in political decision-making. The theory has important implications for constitutionalism - and vice versa - as constitutional laws increasingly shape and constrain political decisions. The full range of these implications has not been explored in the political and constitutional literatures to date. This unique Handbook establishes the parameters of the field of deliberative constitutionalism, which bridges deliberative democracy with constitutional theory and practice. Drawing on contributions from world-leading authors, this volume will serve as the international reference point on deliberation as a foundational value in constitutional law, and will be an indispensable resource for scholars, students and practitioners interested in the vital and complex links between democratic deliberation and constitutionalism.

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Centre: DGAL

Research theme: Constitutional Law and Theory

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

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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

CHALLENGING THE LEGAL PROFESSION A CENTURY ON: THE CASE OF EDITH HAYNES*

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

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

THE DELIBERATIVE CASE FOR CONSTITUTIONAL REFERENDA

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

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

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

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

Author(s):

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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Centre: CIPL

Research theme: Health, Law and Bioethics

Recent Developments in Social Security Law

Author(s):

This Paper was presented to a Roundtable of the National Social Security Rights Network in Canberra on 5 August 2017.

The Paper reports on recent developments in social security law in Australia, particularly with reference to recent decisions of the Commonwealth Administrative Appeals Tribunal and the Federal Court of Australia.

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Centre: CIPL

Research theme: Military & Security Law

Public Health Legislation Prohibiting Sports-Embedded Gambling Advertisting

Author(s):

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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Centre: CIPL, CLAH

Research theme: Health, Law and Bioethics

An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients (Presentation Slides)

Author(s): Elizabeth Curran

Our paper fits into all the themes ● The clinician and community needs ● The clinician and research into the impact of clinic ● The clinician and academic identity ● The clinician and curriculum and student learning

This paper examines the value in students, academics and clinical supervisors learning and working together across different disciplines through an interdisciplinary student clinic (IDSC) to deliver legal and public health education to people who experience social exclusion by reason of vulnerability or disadvantage (including poverty)– the ‘Health Justice Partnership Student Clinic’.

This paper situates the discussion firstly within the context of author one’s research on multi-disciplinary practices (MDP) including Health Justice Partnerships (HJP) which have led to this decision at University of Portsmouth to set up a IDSC. MDP in this context is where a number of professionals work together in a practice to assist the client using their different skills but in the one place and setting. One subset of an MDP is the HJP which sees lawyers working alongside nursing and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. It is about going to where people in need of help are likely to turn.

This paper firstly identifies the evidence-based research that has led the authors to see the need, not just for multi-disciplinary practices in a service context but also interdisciplinary practice and teaching opportunities through clinical learning that brings greater collaboration for students, supervisors and academics across the professional divide to improve outcomes for clients. The authors see a critical need in universities to better prepare the emerging professionals to learn about collaboration with other disciplines and demonstrate influence and impact in the wider community. Author one’s empirical research into effective practice also suggests that such collaboration leads to better outcomes for clients and patients especially those experience some form of vulnerability or disadvantage.

Secondly, as there is some literature on IDP and IDSC, (mainly from the United States and Australia) this paper will explore other models, the reasons and rationales for their emergence and the benefits and challenges and how this has informed the development other new pilot IDSC at the University of Portsmouth. The paper then discusses why the IDSC has emerged as an important way of building better and more responsive future practitioners in nursing, law and allied health disciplines.

The paper also discusses aims of the three-year University of Portsmouth pilot IDSC and the joint learning opportunities for students of different disciplines, their supervisors and across departments which are envisioned so as to break down barriers between professionals, enable future practitioners to collaborate across different fields and thereby improve social justice and health outcomes for clients and community. These include fostering and increasing understanding and respect for different professional roles and approaches, breaking down stereotypes, enhancing student employability and working together to better reach and meet client/patient needs by being more responsive to legal and public health needs.

The proposed trial IDSC HJP student clinic course will teach new approaches to students studying nursing, dentistry and law in a joint learning environment that includes problem solving, relationship-building, communication and collaboration skills in a clinic which will provide live client legal and public health advice. It will discuss how this is being undertaken and the challenges and approach of the course and its curriculum.

The paper finally discusses the embedded evaluation of the pilot study. It is embedded as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. The embedded evaluation being undertaken will inform as to the projects impact on students, academic staff, partner agencies and clients.

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Centre: CIPL

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

'Envisioning Student Learning in a Multi-Disciplinary Student Clinic Future Practitioners Learning About Working Collaboratively Across Disciplines to Better Help Community’ (Presentation Slides)

Author(s): Elizabeth Curran

In this paper, the author examines the imperative for interdisciplinary student clinics where law, nursing, social work and other disciplines work together in joint classes at undergraduate levels to learn collaborative and client skills to overcome barriers and professional stereotypes that impede the solving of clients problems holistically. Then they can work towards delivering a real life advice clinic to clients in most need and undertake systemic reforms to avert problems.

The paper defines interdisciplinary student clinics and multi-disciplinary practice given the nomenclature in literature is contradictory and confusing.

The presenter’s research and practical experience as a clinical legal education supervising solicitor within a health service has led to the idea for the development of an interdisciplinary student clinic as an important way of building better and more responsive future practitioners in health, law and allied health disciplines.

The paper outlines some initiatives undertaken by law students under her supervision that could if further developed be done in collaboration and co-cooperatively alongside other colleagues in different fields and in student learning to ensure respectful and reciprocal learning. It can also lead to an appreciation of different professional roles and differing ethical obligations. In this paper, the author identifies why there is a need for such an approach to break down barriers between professionals to improve social justice and health outcomes based on her recent empirical research.

She will explore research and new approaches to lawyering and health services provision that works across silos to enable more seamless navigable service options for real life clients of the clinic and new approaches in a work place.

The author has been asked to advise (pro bono) on the establishment of such an innovative clinic at Portsmouth University in the UK for nursing, law and social work students.

This initiative by way of a pilot aims to see work across academic disciplines and with clinical supervisors from different fields designing and teaching together in such a IDSC.

The author notes that a further paper is being developed in collaboration with the Head of Law and Head of Nursing at Portsmouth University that explores these issues in more details.

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Centre: CIPL

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

Torts cases and commentary

Torts: Cases and Commentary, 8th edition

Author(s): David Hambly, Harold Luntz, Kylie Burns, Joachim Dietrich, Neil Foster, Sirko Harder, Genevieve Grant

Torts: Cases and Commentary delivers a critical and analytical approach to the law of torts presented through extensive commentary and selected materials from cases, legislation and academic writings. Detailed notes explain the significance of the key cases while questions stimulate critical thinking and learning.

This edition provides extended coverage of statutory defences to negligence, while doctrines relating to the scope of liability are now discussed together with factual causation in one chapter. Current issues in tort law reform are examined and additional references to academic writings are provided.

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Centre: CCL

Research theme: Private Law

Visions of Contract

"Visions of Contract" Journal of Law and Society

Author(s): Sally Wheeler

Stewart Macaulay and Ian Macneil were the prime movers in creating a model of contractual relations that went beyond the confines of the formal legal model that defined contract enforceability. The work of both of them has been influential even though it has suffered from many misdescriptions along the way. In this article I map their respective contributions and explain the differences between their visions of contract. I then add a third dimension: the possibilities for a new vision of contract and contractual relations raised by blockchain.

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Centre: CCL

Research theme: Law and Technology

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First Research and Evaluation Report Phase One Consumer Action Law Centre Project – Responding Effectively to Family Violence Dimensions of Debt and Credit Through Secondary Consultations & Training with Community Professionals

Author(s): Elizabeth Curran

The Report of the Royal Commission into Family Violence recognised that the family violence victim’s financial security impacts on their wellbeing. Beyond the role of the perpetrator of violence, many problems interact in relation to family violence related debt: 1. The considerable difficulties victims face in asserting and enforcing their financial rights alone; 2. A systemic failure by financial and utility service providers “to understand, identify and respond to economic abuse”; and 3. Inadequate legal and regulatory protections. This Research and Evaluation Report Phase One, evaluates whether the aim of this project to provide a Secondary Consultation (SC) service integrated with Consumer Action’s Training and Outreach program providing training, resources and support to community workers (‘community professionals’) to overcome barriers identified in previous studies by working with trusted community professionals to whom people experiencing family violence are likely to turn to enable their credit & debt legal issues is being addressed in a timely and effective way. The data discussed and analysed for this report including the proxies or benchmarks, set for this research evaluation are being achieved namely engagement, capacity, collaboration and empowerment however there are still some areas for improvement, which is only natural when this project is in its infancy and the issues as the Royal Commission highlights are so vexed and complex. The in-depth interviews reflect that trust and reliability are critical in gaining secondary consultations and referrals. The former being identified (as in other studies ) as critical if the latter are to flow. The qualitative data suggests that Consumer Action is starting to build trust and relationships but there are notes of warning from the interview participants about a need for clarity around the extent and resources and types of matters Consumer Action can assist with and offer support on. This the research participants 5/6 noted can also give them confidence and greater certainty as they support their clients through family violence and debt and credit related issues. The research data consistently highlights the value of secondary consultations (5 out of 6 of the participants strongly agree to its value) in providing efficient, effective and responsive timely secondary consultation to community professionals especially where clients may: not be emotionally ready to see a lawyer, have too many issues weighing on them, or have had poor experiences of lawyers. The latter is consistent with other research but seems to be addressed, as the participants noted in the in-depth interviews with the style of community lawyering that is approachable and practical and considers context. Consumer Action has delivered training sessions which double the number which the funding requires. This is a critical part of building the awareness not only of the service but of the range or problems capable of a legal solution, building trust and relationships and capacity to respond of agencies and other community professionals into the future beyond the extensive reach that Consumer Action already has, to financial counsellors. Noted by all interview participants was that secondary consultations are invaluable as they build trust, provide a form of instant on the spot training, especially for professionals and their clients in rural locations, which are being used to extend the reach of Consumer Action to clients beyond those for whom the initial consultation is sought as the information has wider utility. It can be timely and there is no intake process that for other services can present barriers.

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Centre: CIPL

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

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Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene

Author(s):

It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.

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Centre: CIPL

Research theme: Health, Law and Bioethics

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