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.

Book cover

Consumer Protection Law in Australia

Author(s): Alex Bruce

An indispensible guide to Australia's new consumer protection and product liability laws. On 1 January 2011, the largest reform of Australian consumer protection laws ever undertaken commences. With the introduction of the Australian Consumer Law within the Competition and Consumer Act 2010, the landscape of consumer protection and product liability law fundamentally changes. A single national regime replaces the consumer protection provisions in the Trade Practices Act 1974 and 17 generic consumer protection laws that existed across the States and Territories. Consumer Protection Law in Australia provides a clear and detailed explanation of the changes implemented by the new consumer protection regime, making the book an invaluable guide for legal practitioners, academics and students. The application and effect of the new Australian Consumer Law is made accessible, to provide a thorough understanding of the new legislative landscape.

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Centre: CCL

Research theme: Administrative Law, Private Law, Regulatory Law and Policy

a_marriage_of_strangers.jpg

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Author(s): Greg Weeks

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v. Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v. Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

a_marriage_of_strangers.jpg

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Author(s): Greg Weeks

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v. Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v. Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

A Marriage of Strangers

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Author(s): Greg Weeks

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Private Law Litigation Against the Government: Are Public Authorities and Private Actors Really 'the Same?'

Author(s): Greg Weeks

Historically, it was impossible at common law to undertake litigation against the Crown. In Australia, statutory provisions later provided that "in any suit to which the [government] is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject." Litigation against government or other public authorities in relation to the exercise of functions analogous to those of private actors thus proceeds in essentially the same fashion as between two private individuals. However, the very wording of the statutory provision recognises that government and individuals can never be absolutely the same. Consequentially, there has been some debate as to the extent of government liability in tort in a number of High Court cases over the last 25 years, including Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 and Stuart v Kirkland-Veenstra (2009) 237 CLR 215. This article will examine the historical basis of the maxim ‘the King can do no wrong’, the misunderstanding which led to it being taken as conferring a common law immunity from suit on the government and the basis and effect of the statutory provisions which exposed government to liability in tort. It argues that government and private actors can never truly be "the same" and supports this conclusion with an analysis of the leading High Court authorities.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Estoppel and Public Authorities: Examining the Case for an Equitable Remedy

Author(s): Greg Weeks

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Superannuation Complaints Tribunal and the Public/Private Distinction in Australian Administrative Law

Author(s): Greg Weeks

This article considers the Superannuation Complaints Tribunal (SCT) and the capacity of its decisions to be reviewed. While the constitutional position of the SCT is settled after the decision of the High Court in Attorney-General (Cth) v. Breckler (1999) 197 CLR 83, its categorisation as a private body remains open to question. This being the case, the susceptibility of decisions of the SCT to review is compared with the equitable standards upon which trustee decisions are reviewable. Challenges to decisions of the SCT may not be possible under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but the quasi-private character of the SCT – a private body with a public function – presents scope for courts to hold that the SCT owes an equitable duty to those within its jurisdiction.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Litigating Questions of Quality

Author(s): Greg Weeks

There are some grounds of judicial review which inherently lead the court to consider questions of the quality of the decision-maker’s decision. The most prominent of these are review for Wednesbury unreasonableness and S20/2002 irrationality or illogicality. These grounds of review require careful application to avoid reviewing the merits of a case. The Australian Retailers case demonstrates another difficulty with quality review – that of what detail should be allowed in the evidence both supporting and rebutting the alleged error of law. This article provides a brief examination of the nature of quality review, followed by an examination of the approach used by Weinberg J in Australian Retailers. The article also suggests a method by which judicial review for issues of quality can serve its intended purpose – to catch rare and absurd decisions – without becoming unduly time-consuming or, worse, degenerating into merits review.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Private Law Litigation Against the Government: Are Public Authorities and Private Actors Really ‘the Same’?

Author(s): Greg Weeks

Historically, it was impossible at common law to undertake litigation against the Crown. In Australia, statutory provisions later provided that “in any suit to which the [government] is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject.” Litigation against government or other public authorities in relation to the exercise of functions analogous to those of private actors thus proceeds in essentially the same fashion as between two private individuals. However, the very wording of the statutory provision recognises that government and individuals can never be absolutely the same.

Consequentially, there has been some debate as to the extent of government liability in tort in a number of High Court cases over the last 25 years, including Sutherland Shire Council v. Heyman (1985) 157 CLR 424, Pyrenees Shire Council v. Day (1998) 192 CLR 330, Crimmins v. Stevedoring Industry Finance Committee (1999) 200 CLR 1 and Stuart v. Kirkland-Veenstra (2009) 237 CLR 215. This article will examine the historical basis of the maxim ‘the King can do no wrong’, the misunderstanding which led to it being taken as conferring a common law immunity from suit on the government and the basis and effect of the statutory provisions which exposed government to liability in tort. It argues that government and private actors can never truly be “the same” and supports this conclusion with an analysis of the leading High Court authorities.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Estoppel and Public Authorities: Examining the Case for an Equitable Remedy

Author(s): Greg Weeks

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

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

Estoppel and Public Authorities: Examining the Case for an Equitable Remedy

Author(s): Greg Weeks

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Book cover

Restrictive Trade Practices Law in Australia

Author(s): Alex Bruce

This new textbook provides an engaging treatment of Australian competition law and is ideal for those studying the subject for the first time. Written in an explanatory and lively style, the text fosters a sound understanding of the legal principles of competition law in Australia and demystifies the economic concepts underpinning the law. The work focuses on the contemporary situation, including the recently enacted criminal and civil regime governing cartel conduct, and also explains the historical context using analogies from popular culture.

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Centre: CCL

Research theme: Administrative Law, Private Law

The Environment Protection and Biodiversity Conservation Act 1999 (CTH): An Evaluation of its Cost-Effectiveness

Author(s): Andrew Macintosh

This article outlines the results of a broad cost-effectiveness analysis of the federal environmental impact assessment (EIA) regime under Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Statistics on the operation of the EIA regime are reviewed and an analysis of the regime’s effectiveness in dealing with Australia’s main environmental threats is provided. Consideration is also given to any indirect benefits the regime may have generated. The identified environmental achievements of the EIA regime over the period July 2000 to 30 June 2008 are compared to its administration costs, which are estimated at $135 million – $220 million. The conclusion is reached that over the study period the EIA regime generated minor improvements in environmental outcomes at moderate to high cost.

Read on SSRN

Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

Australia's National Environmental Legislation: A Response to Early

Author(s): Andrew Macintosh

This article provides a critique of a paper by Gerard Early on the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Early’s article presents the EPBC Act as world best practice environmental impact assessment (EIA) legislation and argues that it has produced significant improvements in environmental outcomes. The evidence suggests otherwise. The EPBC Act is deficient in a number of respects, particularly in relation to the structure of the EIA regime and listing processes concerning threatened biodiversity and heritage areas. This article outlines defects in Early’s analysis and in the EPBC Act more generally.

Read on SSRN

Centre:

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Garnaut Review’s Targets and Trajectories: A Critique

Author(s): Andrew Macintosh

The Garnaut Climate Change Review was the most comprehensive government inquiry into climate change that has ever been conducted in Australia. The Final Report of the Review was published in late September 2008 and contains an extensive list of recommendations on adaptation and abatement policy options. Most controversially, the Review argues that Australia’s climate response should be built around gaining an international consensus on stabilising the atmospheric concentration of greenhouse gases at 550 parts per million (ppm) of carbon dioxide equivalents (CO2-e). While arguing that a lower stabilisation target of “450 ppm or less” would better suit Australia’s interests, the Review concludes that anything significantly below 550 ppm is politically unrealistic. If there is a global agreement to pursue a 550 ppm outcome, the Review argues that Australia’s mid- and long-term targets should be to reduce emissions net of international trading by 10 per cent from 2000 levels by 2020, and 80 per cent by 2050. This article provides a critique of the Review’s mitigation recommendations, focusing on whether the proposed global and national targets are likely to lead to a 550 ppm outcome. It concludes that the international community, and especially Australia and other developed countries, should adopt abatement targets in excess of those proposed by the Review if there is a desire to keep the atmospheric concentration of greenhouse gases to 550 ppm.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Environmental Law, Law, Governance and Development

The Right to Protection from Retroactive Criminal Law

Author(s): James Popple

The essentiality of a right to protection from retroactive criminal law has generally been accepted without argument. The principle has been enunciated in various declarations of human rights from 1789 until the present. Nevertheless, there are several examples in international, Australian and British law where the principle has been ignored or (at the very least) circumvented. Three examples of retrospective law-making are discussed: the Nuremberg trials of the late 1940s; the decision of the House of Lords in Shaw v. Director of Public Prosecutions in 1961; and Australian bottom of the harbour tax legislation of 1982. Further, there is the example of judge-made law. When this is taken into account, it can be seen that the right to protection from retroactive criminal law is regularly qualified, to such an extent, and in such an indeterminate fashion, that its status as a human right - even as a qualified human right - is dubious.

Read on SSRN

Centre: CCL

Research theme: Administrative Law

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, CMSL, LGDI

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, Law and Gender, Law and Psychology, Law and Social Justice, Law, Governance and Development, Legal History and Ethnology, Migration and Movement of Peoples, Military & Security Law

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, LGDI

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, Law and Gender, Law and Psychology, Law and Social Justice, Law, Governance and Development, Legal History and Ethnology, Migration and Movement of Peoples, Military & Security Law

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team