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.

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 Social Justice, Law, Governance and Development, Migration and Movement of Peoples

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 Social Justice, Law, Governance and Development, Migration and Movement of Peoples

Who’s Responsible

Who’s Responsible? Justiciability of Private and Political Decisions

Author(s): Daniel Stewart

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (‘AWB’) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government’s responsibility for the circumstances leading to that inquiry. The Australian government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action, and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Read on SSRN

Centre: CCL, CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Filling or Falling between the Cracks

Introduction: Filling or Falling between the Cracks? Law’s Potential

Author(s): Kim Rubenstein, Jeremy Farrall

This is the introduction to the first volume of the new Cambridge University Press series Connecting International law with Public law.

The first volume is titled Sanctions, Accountability and Governance in a Globalised World and is edited by the authors of this introduction and explores fascinating questions that arise when legal regimes collide. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. While there is some scholarship developing in the area of global administrative law, and some scholars have touched upon the principles relevant to both disciplines, the publications to date contain only a subset of the concept underpinning this book. This first book aims to broaden understanding of how public and international law intersect. It is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. What can public lawyers bring to international law and what can international lawyers bring to public law? What are the common interests? Which legal principles cross the international law/domestic public law divide and which principles are not transferable? What tensions emerge from bringing the disciplines together? Are these tensions inherent in law as a discipline as a whole or are they peculiar to law’s sub disciplines? Can we ultimately only fill in or fall between the cracks, or is there some greater potential for law in the engagement?

Read on SSRN

Centre: CIPL, CLAH

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

Chapter 3: Citizenship Law

Chapter 3: Citizenship Law

Author(s): Kim Rubenstein

This chapter analyses Justice Kirby’s constitutional judgments, drawing out various themes in his approach to Australian citizenship law, and considers whether his approach to citizenship has been influenced by underlying ideas that are supranational (acknowledging nationality as a status beyond one nation-state) and universal, as applying to all citizens in all states, or indeed colonial (that is, influenced primarily by Australia’s British subject origins).

The chapter explores the distinction, drawn in several of Justice Kirby's citizenship judgments, between constitutional and statutory forms of nationality. Kirby J has rejected the idea that statutory forms of citizenship adopted by the Federal Parlaiment can define exclusively those who are Australian nationals, and thus 'non-aliens' - that interpretation, he argues, 'deprives the separate constitutional idea of Australian nationality of any content'.

However, while Justice Kirby has been keen to develop a contemporary understanding of the meaning and signifi cance of constitutional nationality, applied in a social and political context far removed from the understanding of the framers of the Constitution, his broadest view of membership beyond statutory citizenship status includes only those non-citizens who hold British subject status and who enjoy most of the rights normally attributed to democratic citizenship (such as voting). This “broad” view does not necessarily include those non-British-subject permanent residents who have spent almost their entire life in Australia and have been absorbed in most other social and political ways. To this extent, his view of citizenship is not supranational or universal, but linked directly to Australia’s historical colonial origins.

Read on SSRN

Centre: CIPL, CLAH

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

Access to Essential Medicines

Access to Essential Medicines: Public Health and International Law

Author(s): Kim Rubenstein

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

Read on SSRN

Centre: CIPL, CLAH

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

International Aviation Emissions to 2025: Can Emissions Be Stabilised Without Restricting Demand?

Author(s): Andrew Macintosh

International aviation is growing rapidly, resulting in rising aviation greenhouse gas emissions. Concerns about the growth trajectory of the industry and emissions have led to calls for market measures such as emissions trading and carbon levies to be introduced to restrict demand and prompt innovation. This paper provides an overview of the science on aviation's contribution to climate change, analyses the emission intensity improvements that are necessary to offset rising international demand. The findings suggest international aviation carbon dioxide emissions will increase by more than 110 per cent between 2005 and 2025 (from 416 Mt to between 876 and 1013 Mt) and that it is unlikely emissions could be stabilised at levels consistent with risk averse climate targets without restricting demand.

Read on SSRN

Centre: CIPL

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

International Aviation Emissions to 2025: Can Emissions Be Stabilised Without Restricting Demand?

Author(s): Andrew Macintosh

International aviation is growing rapidly, resulting in rising aviation greenhouse gas emissions. Concerns about the growth trajectory of the industry and emissions have led to calls for market measures such as emissions trading and carbon levies to be introduced to restrict demand and prompt innovation. This paper provides an overview of the science on aviation's contribution to climate change, analyses the emission intensity improvements that are necessary to offset rising international demand. The findings suggest international aviation carbon dioxide emissions will increase by more than 110 per cent between 2005 and 2025 (from 416 Mt to between 876 and 1013 Mt) and that it is unlikely emissions could be stabilised at levels consistent with risk averse climate targets without restricting demand.

Read on SSRN

Centre: CIPL

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

From this Time Forward

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

Read on SSRN

Centre: CIPL, CLAH

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

State/Territory Human Rights Legislation in a Federal Judicial System

Author(s): James Stellios

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

Read on SSRN

Centre: CIPL

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

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

Author(s): Kim Rubenstein

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

Read on SSRN

Centre: CIPL, CLAH

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

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

Author(s): Kim Rubenstein

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

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

Read on SSRN

Centre: CIPL, CLAH

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

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

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

Sedition, Security and Human Rights: 'Unbalanced' Law Reform in the 'War on Terror'

Author(s): James Stellios

This article provides a review of the history, structure and form of the law of sedition, focusing on the new provisions inserted into the Criminal Code Act 1995 (Cth) in 2005 as part of a wider counter-terrorism package. A short historical review of sedition in Australia is followed by a critical analysis of the new offences, which explores the constitutional and human rights implications of these new offences. Critical attention is given to the process of law reform that seeks to 'balance' security and human rights, focusing on the recommendations of the Australian Law Reform Commission which emerged from the retrospective review of the 2005 reforms. Our conclusion is that the 'balanced' model endorsed by the Australian Law Reform Commission produces incoherence in relation to the definition of offences and 'good faith' defences. In particular, incoherence is produced by definitions of offences that are over-inclusive or under-inclusive depending on the rationale (security or human rights) which is accorded priority.

Read on SSRN

Centre: CIPL

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

Regulating Telecommunications Interception and Access in the 21st Century: Technological Evolution or Legal Revolution?

Author(s): James Stellios

This article reviews the expansion of federal telecommunications interception powers, focusing on the watershed reforms enacted in 2006. The new statutory frameworks governing interception of "live" and "stored communications" are compared and contrasted, with a particular focus on their impact on human rights such as privacy and the fair trial. The article identifies significant regulatory loopholes and deficiencies in this new system, casting doubt on the usefulness of adopting a "balancing" model to guide either macro-level policy development or micro-level decision-making relating to individual warrants.

Read on SSRN

Centre: CIPL

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

Chair of the Citizenship Council

Author(s): Kim Rubenstein

This chapter appears in a collection honouring Sir Ninian Stephen, former Australian High Court Judge and Governor General. The chapter examines Sir Ninian's contributions to citizenship law in both a domestic and international context. Indeed, the chapter straddles both aspects of this book's division: Sir Ninian's domestic and international contributions. It begins by concentrating upon his Australian contributions in this field and then moves on to reflect in particular on his judgment in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Proscecutor v Dusko Tadic, which had important statements about nationality in an international humanitarian law context. As I too am interested in both jurisdictions, the chapter reflects upon the contrasts and similarities of Sir Ninian's contribution to those different jurisdictions and what they may tell us about Sir Ninian's framework for thinking about citizenship. In doing so, it is my contention that Sir Ninian is a role model to all seeking to be cosmopolitan citizens in an ever increasingly connected world.

Read on SSRN

Centre: CIPL, CLAH

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

Using Federalism to Protect Political Communication: Implications from Federal Representative Government

Author(s): James Stellios

The recognition of the implied freedom of political communication has been the subject of much controversy. Although a unanimous Court in Lange v Australian Broadcasting Corporation identified the textual basis for the implication, there continues to be significant uncertainty as to the nature and scope of the freedom. This article seeks to provide an alternative constitutional foundation for protecting political communication, which focuses on the way in which representative government has been accommodated within the federal structure of government. In doing so, it attempts to provide a firmer constitutional foundation for the protection of political communication.

Read on SSRN

Centre: CIPL

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

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