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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Social Movements, Diversity, and Corporate Short-Termism

Author(s): Akshaya Kamalnath

Social movements like #MeToo and #BlackLivesMatter, powered by social media, have given rise to heightened corporate activism on social issues. It has also drawn attention to the importance of addressing diversity issues for the workforce rather than simply at the board or even management level. This article argues that although the focus on such social issues is desirable and indeed necessary, myopic responses to social media pressures can be counter-productive. Instead, it proposes that corporate decisions and actions should be geared towards addressing issues that help the companies’ stakeholders in the long term. Further, it argues that long-term policies that improve corporate culture will ultimately bear results because employees cannot be won over by mere virtue-signalling or short-term policies. Besides, both negative and positive information about firm culture will ultimately make its way out, especially through employee output either on social media or on anonymous forums like Glassdoor surveys, thus affecting corporate reputation. Apart from proposing measures that companies might adopt to address issues of harassment and discrimination, this article also advocates the use of flexible work options and argues that Covid-19 lockdowns might have already shown that “working from home” is indeed possible.

The article contributes to the nascent strand of literature on the impact of social movements that use social media on corporate governance by flagging the issue of corporate short-termism on social justice issues as a concern. It also contributes to the literature on diversity in corporations by identifying solutions that will bring sustained improvement to diversity in the entire workforce (as against just the board of directors, which has been the subject of recent laws and shareholder activism ).

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Centre: CIPL

Research theme: Human Rights Law and Policy

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Rethinking commonality in refugee status determination in Europe: Legal geographies of asylum appeals

Author(s): Jessica Hambly, Et al.

The Common European Asylum System aims to establish common standards for refugee status determination among EU Member States. Combining insights from legal and political geography we bring the depth and scale of this challenge into sharp relief. Drawing on interviews and a detailed ethnography of asylum adjudication involving over 850 in-person asylum appeal observations, we point towards practical differences in the spatio-temporality, materiality and logistics of asylum appeal processes as they are operationalised in seven European countries. Our analysis achieves three things. Firstly, we identify a key zone of differences at the level of concrete, everyday implementation that has largely escaped academic attention, which allows us to critically assess the notion of harmonisation of asylum policies in new ways. Secondly, drawing on legal- and political-geographical concepts, we offer a way to conceptualise this zone by paying attention to the spatio-temporality, materiality and logistics it involves. Thirdly, we offer critical legal logistics as a new direction for scholarship in legal geography and beyond that promises to prise open the previously obscured mechanics of contemporary legal systems.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Civil Remedies and Human Rights in Flux

Editor(s): Gemmo Fernandez, Ekaterina Aristova , Ugljesa Grusic

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations. 

Centre:

Research theme: Human Rights Law and Policy

Civil Remedies and Human Rights in Flux

Editor(s): Gemmo Fernandez

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations. 

Centre:

Research theme: Human Rights Law and Policy

National Security and Counterterrorism Laws cover page

National Security and Counterterrorism Laws

Author(s): James Renwick

The relationship between national security and the law is often under strain. The past 20 years have seen many Commonwealth laws passed in quick response to counterterrorism attacks, and more recently, acts of foreign interference and espionage. This article explains the scope of this special edition while reflecting on the challenges facing each branch of government, and law-reform, in this increasingly important area of the law.

Centre: CIPL

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

Research Handbook on Unilateral and Extraterritorial Sanctions

Research Handbook on Unilateral and Extraterritorial Sanctions

Author(s): Anton Moiseienko

Providing a unique analytical framework to capture a diverse, fragmented and highly evolving practice, the Research Handbook on Unilateral and Extraterritorial Sanctions is the key original reference work covering how sanctions have indisputably become central instruments of foreign policy.

Dr Anton Moiseienko authored Chapter 23, 'Due process and unilateral targeted sanctions'.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Vulnerability, legal need and technology in England and Wales

Vulnerability, legal need and technology in England and Wales

Author(s): Faith Gordon

This paper explores legal need and legal advice in England and Wales during the COVID-19 pandemic. It uses the lens of vulnerability theory to examine the ways in which this crisis exposed pre-existing fragilities between the state and its relationship with the advice sector, and the individuals who experience social welfare problems. The paper commences by exploring Fineman’s vulnerability thesis and its application to those experiencing social welfare-related issues, as well as the vulnerability of the systems operating to give advice. The paper then considers the specific context of the COVID-19 pandemic and the impact on needs, and the ability of the sector to meet these needs. 

Centre:

Research theme: Human Rights Law and Policy, Law and Technology

Pathways to empowerment and justice

Pathways to empowerment and justice: The Invisible Hurdles Stage II Research and Evaluation Final Report

Author(s): Elizabeth Curran

The Invisible Hurdles project is an integrated justice project of four partner organisations the project leader is the Hume Riverina Community Legal Service (HRCLS) a program of Upper Murray Family Care and this research was funded through them by the Victorian Legal Services Board and Commissioners grants program. The other three partners in this multidisciplinary and Health Justice Partnership are : Albury Wodonga Aboriginal Health Service (AWAHS) – this is an Aboriginal Community Controlled organisation; North East Support and Action for Youth (NESAY) is a leading agency supporting young people and their families in North East Victoria, servicing a vast region of seven municipalities; The Wodonga Flexible Learning Centre (WFLC) – this is a campus of the Wodonga Senior Secondary College - an alternative education centre was established in 2014. The project is run in the Hume Riverina region of Victoria and New South Wales focussing on ‘at risk’ young people.

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Centre:

Research theme: Human Rights Law and Policy

Law, Technology and Humans

Children’s Privacy in Lockdown: Intersections between Privacy, Participation and Protection Rights in a Pandemic

Author(s): Faith Gordon, Damian Clifford

Children and young people throughout the world have felt the effects of Coronavirus Disease 2019 and the decisions made in response to the public health crisis, acutely. Questions have been raised about adequately protecting children’s privacy, as schooling, play and socialising went almost exclusively online. However, due to the historical lack of children’s rights being embedded throughout decision-making processes (including important participation rights), the effects of the increased surveillance as a result of the pandemic have not been thoroughly considered. This article pursues three objectives. First, it seeks to develop the literature on the enabling aspects of privacy for children in relation to education and play. Second, it seeks to expand the discussion on the exploitative risks endemic in not protecting children’s privacy, including not only violent harms, but commercial exploitation. Third, it suggests some policy responses that will more effectively embed a children’s rights framework beyond the ‘parental control’ provisions that dominate child-specific data protection frameworks.

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Centre: CIPL

Research theme: Human Rights Law and Policy

The Journal of Corporate Law Studies

Transnational corporations and modern slavery: Nevsun and beyond

Author(s): Akshaya Kamalnath

A recent decision of the Supreme Court of Canada Nevsun Resources Ltd. v Araya, has brought the issue of transnational corporations’ responsibility for human rights violations to the forefront in Canada. After critically examining the decision, this article aims to propose an effective legislative design for Canada. The article also examines another pertinent decision (this one from the UK), Vedanta Resources plc. v Lungowe in this regard. The proposals for effective legislation in Canada set out in this article will also be relevant for other countries considering the introduction of (or amending) modern slavery laws.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Leading Works in Law and Social Justice

Leading Works in Law and Social Justice

Author(s): Faith Gordon

This book assesses the role of social justice in legal scholarship and its potential future development by focusing upon the ‘leading works’ of the discipline.

The rise of socio-legal studies over recent decades has led to a more interdisciplinary approach to the study of law, which prioritises placing law into its wider social context. Recognising the role that culture, economics and politics play in the development of law is important in order to fully understand the position and impact of law in society. Innovative and written in an engaging way, this collection includes leading and emerging scholars from across the world. Each contributor has been invited to select and analyse a ‘leading work’, a publication which has for them shed light on the way that law and social justice are interlinked and has influenced their own understanding, scholarship, advocacy, and, in some instances, activism. The book also includes a specially written foreword and afterword, which critically reflect upon the contributions of the 'leading works' to consider the role that social justice has played in law and legal education and the likely future path for social justice in legal scholarship.

This book will be an essential resource for all those working in the areas of social justice, socio-legal studies and legal philosophy. It will be of wider interest to the social sciences more generally.

Co-authors: Faith Gordon, Daniel Newman

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Centre: CIPL

Research theme: Human Rights Law and Policy

Vulnerability, Legal Need and Technology in England and Wales

Vulnerability, Legal Need and Technology in England and Wales

Author(s): Faith Gordon

This research explores legal need and legal advice in England and Wales, during the COVID19 pandemic. It uses a theoretical understanding of vulnerability to examine the ways in which this crisis has in practice exposed several pre-existing fragilities in the relationship between the state, the advice sector, and individuals who experience social welfare problems. Our research commences by exploring the concept of vulnerability. In this part, we discuss three things: firstly, the broad range of ways in which vulnerability is experienced by those experiencing social welfare-related issues, secondly, how the idea of vulnerability is often used under austerity-informed policies to identify a limited class of people who are in need ofsocial welfare, and thirdly, the vulnerability of the systemsthemselves which support those individuals through the provision of legal advice. Our research then considers the specific context of the COVID-19 pandemic: it interrogates how social distancing and lockdown measures, in combination with the threat of the virus itself, have compounded the existing fragilities within this relationship.

Drawing on policy documents, reports and three case studies accessed from law centres in England and Wales, it discusses the concept of legal need, and demonstrates how the pandemic has transformed the way that social welfare law needs are experienced, as well as impaired the ability of the sector to meet these needs. These case studies assist us in being able to critically consider the topics of vulnerability, changing needs and the role that technology is playing, and can play, during the pandemic and beyond. Lastly, on the basis of these findings, our research advocates a critical consideration of the sustainability and format of legal advice in addressing legal need in the post-COVID-19 landscape. Drawing on examples of technology being utilised in legal advice sectors in other jurisdictions; this paper considers the future potential of technology for addressing legal need in England and Wales. This is important given that the sector continues to be left vulnerable to funding cuts, and at the same time, society is predicted to experience a continued increase in legal need post-pandemic.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

Author(s): Kieran Pender

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

Co-authors: Madeleine Castles, Tom Hvala, Kieran Pender

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Centre: LRSJ

Research theme: Human Rights Law and Policy, Law and Gender

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Embracing Difference: Governance of Critical Technologies in the Indo-Pacific

Author(s): Jolyon Ford, Damian Clifford

This paper considers what an approach to human rights and the ethical governance of critical technologies could entail for Quad members. Its focus is data-driven technologies, like artificial intelligence.

The key insight of the paper is that policymaking and diplomacy on critical technologies should proceed from a recognition that the uses and impacts of technology are heavily affected by social factors, including local culture, context and legal traditions. Quad membership is often defined by distinguishing from autocratic/non-democratic powers. However, there are also considerable divergences within and between Quad members, and other partners, on what the responsible development, use and governance of technology (and related data) comprises. There are also differences between and within like-minded countries about how technologies are perceived to either pose a risk to, or enhance, security, economic and social interests and values.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Committing to human rights in Australia’s corporate sector

Committing to human rights in Australia’s corporate sector

Author(s): Sally Wheeler

This paper draws on data collected from ASX 50 listed corporations. As the UNGP makes clear a visible and accessible policy commitment is the most basic form of recognition that corporations can afford to human rights under the schema it offers. The paper takes the position that this policy commitment gives corporations a chance to declare a positive relationship with human rights. The presence or not of a policy statement, and the form that the statement takes, tells us much about the relationship between the corporate sector in Australia and human rights. The data reveals a low prevalence of policy commitment across the largest publically listed corporations in Australia. The paper selects a range of variables against which to examine whether commitment occurs or not.

The most significant factor that supports policy commitment is membership of human rights engaged global Business and Industry Non-Governmental Organisations (BINGOs). We might expect a rather stronger public commitment to human rights reflecting the position apparently taken by Australian corporations on other ESG standards. However this expectation has to be set against the absence of human rights discourse as a political and cultural artefact at the domestic level.

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Centre: CCL

Research theme: Human Rights Law and Policy

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Getting Out of Debt: The Road to Recovery for Victim/Survivors of Family Violence

Author(s): Elizabeth Curran

This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.

The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.

Read on SSRN

Centre: CIPL

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

Friends and Foes

Friends and Foes: Human Rights, the Philippine Left and Duterte, 2016-2017

Author(s): Jayson Lamchek

The Philippine left’s short-lived association with the government of Rodrigo Duterte from 2016 vexed political observers, whether sympathetic to or critical of the left. Against the charge that the left was simply subordinated as a political force to Duterte’s multi-class populist-cum-fascist project, this article argues that the left was both friend and foe of Duterte, who promised an aggressive War on Drugs as well as socioeconomic reforms. It situates the left–Duterte relationship within the history of engagement by new political actors with elite democracy in the Philippines since 1987. The friend-and-foe or dual strategy analysis uncovers some of the richness of the left’s progressive engagement with Duterte. This contributes to an understanding of Philippine political history by providing a profile of progressive engagement involving a set of actors different from those who have previously been analysed – viz. national democrats rather than social democrats – and an increasingly authoritarian administration explicitly espousing anti-human rights rhetoric. We specify the conditions for the emergence of the left–Duterte relationship, how it unfolded, and the tipping points that led to its collapse. The findings underscore the complexities and extreme difficulty of transforming Philippine politics through progressive engagement.

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Centre: CIPL

Research theme: Human Rights Law and Policy

The Dangers of Human Rights-Compliant Counterterrorism

The Dangers of Human Rights-Compliant Counterterrorism: A Critical Review of the Indonesian Approach

Author(s): Jayson Lamchek

Against the prevailing wisdom that legal frameworks can make the fight against terrorism compatible with human rights, the paper offers an extended pause to draw out the bases for disbelief in the power of constitutional law to tame counterterrorism in Indonesia. It argues that the idea of human rights-compliant counterterrorism partakes of a fantastical quality and involves a great deal of unawareness of counterterrorism as a hegemonic order. The identification of counterterrorism with human rights action is a defining feature of this counterterrorism hegemony. The paper contextualizes this argument in Indonesia. It offers explanations for how Indonesia’s counterterrorism achieved acceptability despite the Constitutional Court having had no role to play in shaping it and despite the counterterrorism legal framework lowering human rights standards. Three characteristics of Indonesian counterterrorism, namely, its focus on Islamist militants, that it is police-led and criminal justice-based, allow it to be presented as consistent with constitutional values. The rhetoric of counterterrorism as fundamentally consistent with human rights helps maintain impunity for extralegal killings and torture of terrorism suspects by police. The paper concludes with an invitation to develop a human rights practice that rejects rather than seeks accommodation with counterterrorism hegemony.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Judgment In the Matter of an Application

Pre-charge identification of a minor and Article 14 of the ECHR: Judgment In the Matter of an Application by JKL (A Minor)

Author(s): Faith Gordon

Pre-charge concerns in relation to balancing the interests of all parties, while maintaining one of the core foundations underpinning the criminal justice system – the presumption of being ‘innocent until proven guilty’.

The issue of pre-charge identification has been the subject of debate in recent years following the publication of the identity of a number of celebrities who were arrested in relation to allegations of historic sexual abuse and were subsequently released without charge.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Court of Conscience

Court of Conscience ‘Rights and Representation: Children and the Law’

Author(s): Faith Gordon

The Court of Conscience is UNSW Law Society's premier social justice publication. As a multi-award-winning journal, run by a voluntary student editorial board, the publication aims to inspire interest in social justice in the UNSW community and beyond. Dr Gordon's chapter focuses on children's rights in the digital age. 

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Centre: CIPL

Research theme: Human Rights Law and Policy

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