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.

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

The Influence of Chinese Immigration on Citizenship

Author(s): Kim Rubenstein

This article is from a paper given at a conference in 2000 which sought to do two things. First it draws out some of the legal issues central to citizenship and displays how they relate to the other disciplines in the development of citizenship in Australia. It argues there has not been a clear legal framework within which to develop an understanding of citizenship in Australia. Secondly, it argues that Chinese immigration to Australia in the second half of the 19th century was central to the evolution of citizenship in this country. Moreover, this factor has influenced the development of a legal framework that is confused, ambiguous, and contradictory about citizenship.

Read on SSRN

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

'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, Legal History and Ethnology, Migration and Movement of Peoples

Unequal Membership: The Constitution's Score on Citizenship

Author(s): Kim Rubenstein

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

Read on SSRN

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

Globalisation and Citizenship and Nationality

Author(s): Kim Rubenstein

How well are the legal concepts of citizenship and nationality travelling in a globalised world? This chapter addresses the effects of globalization on people's status and membership within their own territory, and beyond it. Citizenship is a legal, political, and social construct that has domestic and international consequences. I argue that citizenship, in its traditional meaning of participation in and membership of the nation-state, will be fundamentally altered by globalisation and will not continue to travel in the same manner that it has been. The familiar domestic and international consequences of citizenship, such as political voting rights, legal rights, including the right to leave and enter a country, and social welfare rights, will be fundamentally affected by the changes in people's connection to the nation-state. This means that it can't be recognised as a generalisable legal notion, to the extent that it may have been in the past. Moreover, as people identify and become members of more than one community, we will witness an acceptance of multi-citizenship/membership within the nation-state and within the international order. The rise of the world citizen and the changes that have occurred in the nation-state mean that citizenship and nationality will be revised concepts in the 21st century. If they are able to adapt to these changed frameworks, then citizenship and nationally may continue to travel well. This chapter is a combination of two earlier works of the author reproduced in this important book edited by Catherine Dauvergne.

Read on SSRN

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

Can the Right to Vote Be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002

Author(s): Kim Rubenstein

This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

Read on SSRN

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

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

Australian Citizenship Law in Context by Kim Rubenstein is a new book published in May 2002 by Lawbook Company. Citizenship is the pivotal legal status in any nation-state. For Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law in Context sheds light on citizenship law and practice in the broader context. It also provides the most up-to-date analysis available of the Australian Citizenship Act 1948 and its future direction, plus the first comprehensive listing and analysis of legislation that discriminates upon the basis of citizenship and residence.

The book covers issues of citizenship law, migration law and constitutional and administrative law, and is also a valuable resource for any discipline interested in citizenship. Contents. Preface. Table of Contents. Table of Cases. Table of Statutes. Chapter 1: Citizenship in Australia: An overview. Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates. Chapter 3: Australian "Subjecthood" before Australian Citizenship 1901-1949. Chapter 4: The Australian Citizenship Act 1948. Chapter 5: The Legislative Consequences of Citizenship. Chapter 6: The High Court and Citizenship and Membership. Chapter 7: The Future of Australian Citizenship Law. Index

Read on SSRN

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

Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia

Author(s): Kim Rubenstein

This article looks at citizenship as both a legal formal notion, and as a normative notion. While the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), the normative citizen looks to broader concepts, speaking of membership regardless of a person's formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the 20th century. The article displays this by looking at the beginnings of citizenship in Australia before the legal status was formalised, then the first fifty years of the formal status, and finally at the legislative and common law expressions of citizenship. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century about the relationship between the formal and normative meanings of the term.

Read on SSRN

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

International Citizenship: The Future of Nationality in a Globalised World

Author(s): Kim Rubenstein

This article attempts to identify the consequences for "nationality" in a world where "sovereignty" is challenged by the process of globalization. It builds upon Kim Rubenstein's chapter Citizenship in a Borderless World in A Anghie and G Sturgess (eds) LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY (Kluwer Law, 1998) and responds to the feature article Citizenship Denationalized by Linda Bosniak in the same Spring 2000 edition of the Indiana Journal of Global Legal Studies.

The piece begins by defining "nationality" and "globalization". It distinguishes "citizenship" and "nationality" in a technical legal sense and considers citizenship and globalization as multifaceted concepts. It also highlights that there is an inherent tension in the development of citizenship for the citizenship project is about the expansion of equality among citizens, however, as equality is based upon membership, citizenship status forms the basis of an exclusive politics and identity. The article then concentrates on some tensions endemic to nationality, particularly in a globalized world. It does so by looking at nationality's functionality as a legal and social tool, concentrating upon various treaties and agreements and the international case law dealing with nationality. The case law analysis is divided into the "Standing Cases" and the "Human Rights Cases". Finally, the article concludes by arguing that the concept of effective nationality facilitates a theoretical (if not yet a practical) entry point for the acknowledgment of layered and/or fragmented nationality appropriate to the circumstances of our participation in a given national, supranational, regional or even non-territorial community.This puts nationality more in line with a "rights" -based individualized focus for international law rather than a sovereignty-based one. It is where the progressive project of citizenship meets nationality, melding, strengthening and integrating them as one and the same tool for building justice in a new era.

Read on SSRN

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

A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning. Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence. A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice. SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure. SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains. Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning. Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence. A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice. SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure. SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains. Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

SHYSTER: The Program

Author(s): James Popple

This technical report provides fully commented and indexed listings of the ISO C source code for the SHYSTER legal expert system.

Details of the design, implementation, operation and testing of SHYSTER are given by Popple in A Pragmatic Legal Expert System (1996), Applied Legal Philosophy Series, Dartmouth (Ashgate), Aldershot, ISBN-1-85521-739-2 - available at SSRN: http://ssrn.com/abstract=1335176.

Read on SSRN

Centre:

Research theme: Administrative Law

SHYSTER: A Pragmatic Legal Expert System

Author(s): James Popple

Most legal expert systems attempt to implement complex models of legal reasoning. Yet the utility of a legal expert system lies not in the extent to which it simulates a lawyer's approach to a legal problem, but in the quality of its predictions and of its arguments. A complex model of legal reasoning is not necessary: a successful legal expert system can be based upon a simplified model of legal reasoning.

Some researchers have based their systems upon a jurisprudential approach to the law, yet lawyers are patently able to operate without any jurisprudential insight. A useful legal expert system should be capable of producing advice similar to that which one might get from a lawyer, so it should operate at the same pragmatic level of abstraction as does a lawyer-not at the more philosophical level of jurisprudence.

A legal expert system called SHYSTER has been developed to demonstrate that a useful legal expert system can be based upon a pragmatic approach to the law. SHYSTER has a simple representation structure which simplifies the problem of knowledge acquisition. Yet this structure is complex enough for SHYSTER to produce useful advice.

SHYSTER is a case-based legal expert system (although it has been designed so that it can be linked with a rule-based system to form a hybrid legal expert system). Its advice is based upon an examination of, and an argument about, the similarities and differences between cases. SHYSTER attempts to model the way in which lawyers argue with cases, but it does not attempt to model the way in which lawyers decide which cases to use in those arguments. Instead, it employs statistical techniques to quantify the similarity between cases. It decides which cases to use in argument, and what prediction it will make, on the basis of that similarity measure.

SHYSTER is of a general design: it provides advice in areas of case law that have been specified by a legal expert using a specification language. Four different, and disparate, areas of law have been specified for SHYSTER, and its operation has been tested in each of those legal domains.

Testing of SHYSTER in these four domains indicates that it is exceptionally good at predicting results, and fairly good at choosing cases with which to construct its arguments. SHYSTER demonstrates the viability of a pragmatic approach to legal expert system design.

Read on SSRN

Centre:

Research theme: Administrative Law

Legal Expert Systems: The Inadequacy of a Rule-Based Approach

Author(s): James Popple

The two different categories of legal AI system are described, and legal analysis systems are chosen as objects of study. So-called judgment machines are discussed, but it is decided that research in legal AI systems would be best carried-out in the area of legal expert systems. A model of legal reasoning is adopted, and two different methods of legal knowledge representation are examined: rule-based systems and case-based systems. It is argued that a rule-based approach to legal expert systems is inadequate given the requirements of lawyers and the nature of legal reasoning about cases. A new, eclectic approach is proposed, incorporating both rule-based and case-based knowledge representation. It is claimed that such an approach can form the basis of an effective and useful legal expert system.

Read on SSRN

Centre: CCL

Research theme: Administrative Law

Pages

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