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.

Comparative Perspective

A Comparative Perspective on Australian End-of-Life Law

Author(s):

The Italian Eluana Englaro Case and the related Italian Bill “Dispositions in matter of therapeutic alliance, informed consent and advance directives” highlight a number of significant points of divergence with regulation of end-of-life decision-making and advance directives under Australian state and federal law. This chapter aims to provide a comparative overview of Australian case law and statutory provisions in this area. It discusses these differences in the context of a view that regardless of the deontological importance of respecting individual patient rights in end-of-life decision-making, the financial constraints upon governments to care for an ageing population will increasingly provide consequentialist interest not only in facilitating advance directives that allow technically ‘futile’ treatment to be withdrawn or withheld from incompetent patients, but in permitting physician assisted suicide when requested by competent, non-depressed patients with a terminal illness who have already received reasonable palliative care.

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Centre: CLAH

Research theme: Human Rights Law and Policy

Using Discourse Theory

Introduction: Using Discourse Theory to Untangle Public and International Environmental Law

Author(s): Kim Rubenstein

The world is talking, pondering, and strategising about the environment. Ever more of the environment has been identified, publicly contemplated, or designated for despoliation and resource extraction. Remote and ‘wild’ places like the rugged Australian Kimberley and the far reaches of North America are now subject to advanced plans for fossil fuel extraction. Environmental disasters, including fires, floods, cyclones, earthquakes and tsunami, and schemes to alleviate or prevent future human suffering from catastrophe, have occupied governmental and organisational attention. Meanwhile, concerns about environmental degradation, and in particular human-induced climate change, dominate Western media and national and international politics, and are connecting communities through conversation and localised action. The nature, breadth and extent of global responses to climate change are also points of contention between the developing and developed worlds.

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Centre: CIPL, CLAH

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

Deliberative Constitutional

Deliberative Constitutional Change in a Polarised Federation

Author(s): Ron Levy

Citizens’ Assemblies are innovative deliberative democratic processes that recommend constitutional or other key legal reforms. They are formed from 100-plus randomly-selected citizens who convene over several months to learn from experts in a particular area of public policy, and thereafter to recommend a specific law reform. In the 2010 Australian general election, the incumbent Labor government’s promise to create a Citizens’ Assembly attracted strongly unfavourable popular media responses. In contrast, this article reports empirical data showing generally high Australian levels of trust in Citizens' Assemblies and deliberative democracy. The article also engages in further analysis to search for signs that such trust varies with social demographics; marked demographic cleavages could potentially be fatal to the success of reforms. In a first set of results, the article finds surprisingly uniform trust in deliberative democracy across most demographic groups (eg, defined by age, sex, educational achievement, political party and region). However, trust in Citizens’ Assemblies, while still generally uniform, is subject to more variation, including intriguing regional, populist and other distinctions.

Read on SSRN

Centre: CIPL, DGAL

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

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

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

Review Essay: The Constitutional System of Thailand: A Contextual Analysis

Author(s): Mark Nolan

Review of: Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Series: Constitutional Systems of the World). Oxford and Portland, Oregon: Hart Publishing, 2011. Pages: i-xxxv, 1-273; ISBN-10: 1841139726: ISBN-13: 978-1841139722.

Read on SSRN

Centre: CIPL, CMSL, LGDI

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Migration and Movement of Peoples

A Tale of Two Questions? An Evidence-Based Argument for Coordinated Constitutional Reform in Australia

Author(s): Ron Levy

Australia recently convened two nationwide consultation panels to plan for upcoming referendums on constitutional reform. The first panel considered how to update the Constitution to recognise Indigenous Australians. The second considered the place of local governments in the federal constitutional scheme. The existence of two separate panels, without a clear process for the next step of providing the Parliament and people with coordinated advice about the proposals, raises natural questions. Assuming that recommendations can be found for both proposals to proceed, should the people be presented with two proposals for constitutional alteration, or just one? If not presented together, then should there be a staged process of reform, and if so, what should be its public logic? Given that there are also other issues of constitutional reform of importance to many Australians, how can the Parliament proceed with either or both of these particular issues in a way that makes public sense, rather than one open to accusations of pandering to sectional political interests, engaging in ad hoc tinkering as a political distraction, or worse?

Read on SSRN

Centre: CIPL, DGAL

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

Fitzpatrick, Property and Social Resilience

Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor

Author(s): , Andrew McWilliam, Susana Barnes

Peace-building in a number of contemporary contexts involves fragile states, influential customary systems and histories of land conflict arising from mass population displacement. This book is a timely response to the increased international focus on peace-building problems arising from population displacement and post-conflict state fragility. It considers the relationship between property and resilient customary systems in conflict-affected East Timor. The chapters include micro-studies of customary land and population displacement during the periods of Portuguese colonization and Indonesian military occupation. There is also analysis of the development of laws relating to customary land in independent East Timor (Timor Leste). The book fills a gap in socio-legal literature on property, custom and peace-building and is of interest to property scholars, anthropologists, and academics and practitioners in the emerging field of peace and conflict studies.

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Centre: LGDI

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development, Migration and Movement of Peoples

Bottomley, Law in Context

Law in Context (4th ed)

Author(s): Stephen Bottomley, Simon Bronitt

This fourth edition of Law in Context not only updates the text by reference to the latest thinking and developments in the broad area of ‘law in context’, but also introduces readers to the wider social, political and regulatory contexts of law. Bottomley and Bronitt, as in previous editions, expose readers to the multitude of contexts (some explicit, others implicit) that affect how law is made, broken and enforced by the state or individual citizens. The fundamental ideals of law – such as the Rule of Law – rest on cherished liberal values, though the authors constantly encourage readers not to accept uncritically the rhetoric of law, but to test these assumptions through empirical eyes. 

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Centre: CCL

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, International Law, Private Law, Regulatory Law and Policy

Book cover

Kangaroo Courts and the Rule of Law - the Legacy of Modernism

Author(s): Desmond Manderson

Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-configured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and MIkhail Bakhtin, and D.H. Lawrence's strange and misunderstood novel Kangaroo (1923).

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Centre: CLAH

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Social Justice, Law, Governance and Development, Legal Theory

Bailey, Human Rights Law

Human Rights Law

Author(s):

This book provides a concise outline of the principles of human rights law within undergraduate law.  Written in clear, straight-forward language, the author explains the principles, and highlights key cases and legislative provisions.

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Centre: CIPL

Research theme: Human Rights Law and Policy

Condliff V North Staffordshire Primary Care Trust: Can Human Rights Redress Inequities in United Kingdom and Australian Cost-Containment-Driven Health Care Reforms?

Author(s):

A recent case from the English Court of Appeal (R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, concerning denial by a regional health care rationing committee of laparoscopic gastric bypass surgery for morbid obesity) demonstrates the problems of attempting to rely post hoc on human rights protections to ameliorate inequities in health care reforms that emphasise institutional budgets rather than universal access. This column analyses the complexities of such an approach in relation to recent policy debates and legislative reform of the health systems in the United Kingdom and Australia. Enforceable human rights, such as those available in the United Kingdom to the patient Tom Condliff, appear insufficient to adequately redress issues of inequity promoted by such “reforms”. Equity may fare even worse under Australian cost-containment health care reforms, given the absence of relevant enforceable human rights in that jurisdiction.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

What Makes a Real Man? Gender Norms and Western Australian v. AH [2010] WASCA 172

Author(s):

In Western Australia v. AH [2010] WASCA 172 the Western Australian Court of Appeal denied two female-to-male applicants for gender reassignment certificates the right to be legally recognised as men. In so doing, an opportunity was lost for Australia to be one of the first jurisdictions in the world to legally provide a reassignment of gender without requiring permanent sterilising surgery. This column examines not only the legal issues considered in the case but the broader ethical and human rights issues associated with denying female-to-male gender reassignment applicants who have not undergone a permanent sterilisation or genitalia alteration procedure, the right to be identified as males.

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Centre: CLAH

Research theme: Human Rights Law and Policy

Problems in Human Rights and Transboundary Pollution

Problems in Human Rights and Transboundary Pollution

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.

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Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Problems in Human Rights and Large Dams

Problems in Human Rights and Large Dams

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Among large infrastructure projects, damming rivers to provide hydroelectric power have been the source of considerable conflict between governments and the people who are affected by such projects, especially those forced to relocate. In many instances dams are built in pristine natural areas, destroying or degrading nature reserves, indigenous lands and/or archaeological sites. Increasing opposition to large dams has resulted in national and international litigation, as well as substantial changes in the practices of international financial institutions. This case study looks at the case of the Narmada dam in India, as it has evolved over time in response to public action, national litigation, and challenges to World Bank financing. In reading these materials, consider the following issues: (1) In developing countries, do the benefits of flood control and the provision of renewable energy outweigh the environmental and human rights impacts of large dams? (2) Can equal or greater benefits be achieved by alternative development projects that have fewer negative impacts on the environment and human rights? (3) By what procedures and substantive measures can the negative impacts be avoided or mitigated? (4) Even if there are considerable benefits to hydroelectric projects, should certain locations be off-limits to the construction of large dams? If so, what are the relevant criteria by which to decide? (5) How should the rights of local communities and indigenous populations be safeguarded?

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Problems in Environmental Protection and Human Rights

Problems in Environmental Protection and Human Rights: A Human Right to the Environment

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Problems in Climate Change and Human Rights

Problems in Climate Change and Human Rights

Author(s): Donald Anton

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The link between adverse impacts of climate change and human rights was pushed to the fore recently by a 2005 petition by Sheila Watt-Cloutier on behalf of the Inuit people of the Artic regions to the Inter-American Commission on Human Rights. Human Rights challenges to harmful climate change activities and impacts have also been launched in a number of national courts. In Nigeria and Australia substantive and procedural rights have been put forward to challenge greenhouse gas emitting activites and development. This case study examines the international and national claims.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Justins v. the Queen

Justins v. the Queen: Assisted Suicide, Juries and the Discretion to Prosecute

Author(s):

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another’s death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Justins v. the Queen

Justins v. the Queen: Assisted Suicide, Juries and the Discretion to Prosecute

Author(s):

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another’s death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Recognition and Narrative Identities

Recognition and Narrative Identities: The Legal Creation, Alienation and Liberation of the Refugee

Author(s): Matthew Zagor

That a refugee often has a transformative experience in their encounter with a status determination regime is uncontentious. The practical need for legal recognition of a pre-existing status for the purpose of protection marries with a very personal need for recognition of one’s experience. The granting or withholding of either type of recognition has consequences for the various identities created in the process. Both depend upon the story told, and the manner of its reception.

This paper arose initially out of my own anecdotal experience as a legal representative for refugees over many years. It found its genesis in reflections on the role I played in helping shape the story that would be told to administrative decisions makers by my clients, and my growing concern that I was complicit in a process of legal institutionalisation, distortion and even alienation of something ‘authentic’ in the refugee experience and identity. As will become apparent, I am no longer so damning of my role and that of my fellow lawyers and decision-makers, or indeed of the ‘regulative discourse’ imposed by refugee law itself. The refugee has more agency than perhaps appears at first blush. I am also more questioning of my own original assumptions about authenticity, categorisation and recognition.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

No Time to Lose

No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One

Author(s): Molly Townes O'Brien

Preliminary results of a pilot study of law students suggest that, during the first year of law study, students may experience changes in thinking styles, stress levels, and satisfaction with life. Although further inquiry into the cause of law student distress is necessary, the authors consider certain assumptions underlying the legal curriculum - particularly the conception of a lawyer as adversarial, emotionally detached, and competitive - to be possible sources of the negative impact on student wellbeing. It is suggested that legal educators should reexamine their curricula, particularly their conception of what it means to be a lawyer, and think creatively about ways that law schools may encourage healthier approaches to the study of law.

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Centre: CIPL

Research theme: Criminal Law, Human Rights Law and Policy, Law and Social Justice, Legal Education

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