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.

A Failure to Protect

A Failure to Protect: The UN Human Rights Council and Darfur

Author(s):

This paper assesses the Responsibility to Protect (‘R2P’) principle as an emerging norm of customary international law, and as an effective political strategy in responding to mass atrocity crimes.

The proponents of R2P believe that it has the status of an emerging norm. This analysis accepts that R2P should be evaluated as a ‘soft law’ norm’. Soft law norms are generally the result of a consensus in international forums expressed in normative terms of general application.

An emerging norm is one which ‘does not yet satisfy the requirements for the creation of custom but is regarded as likely to do so over time’. The test whether R2P is an emerging soft law norm would be whether a relevant international forum is likely to form a consensus in support of R2P.

The majority of the members of the Human Rights Council in 2007 repudiated the application of R2P to the situation in Darfur. This response of the Human Rights Council shows that R2P is not, on present indications, ‘likely’ to emerge as a soft law norm over time.

This analysis also shows that the theory of soft law making is not merely a conveniently amorphous substitute for rigorous examination of the evidence of a customary norm. It is possible to test whether a soft law norm has been established or qualifies as an ‘emerging norm’.

The response of the Human Rights Council to the situation in Darfur also shows that R2P has not served as a trigger for an effective political response to mass atrocity crimes.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

The New Racism in Employment Discrimination

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH

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

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH

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

women_and_discrimination_law.jpg

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH

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

Developing a Professional Identity in Law School

Developing a Professional Identity in Law School: A View from Australia

Author(s): Kath Hall, Molly Townes O'Brien, Stephen Tang

Preliminary results from our study of law student wellbeing at the Australian National University are consistent with results of studies in the US and elsewhere in Australia, suggesting that law students may begin to experience increased psychological distress, including symptoms of depression, in the first year of law school. In light of this evidence, the particular challenge facing legal education is to look at the study of law itself and examine how the pedagogy, substance, and approach of legal education impact students’ self concept and well-being. This paper begins that task by exploring the formation of professional identity in law school.

In making decisions about legal content, materials, and pedagogy, legal educators (often unconsciously) adopt and communicate assumptions about professional identity that may be outmoded, incomplete, and inappropriate for the students’ futures as legal professionals. The typical law school curriculum offers a conception of the lawyer identity that is impoverished by legal education’s over-emphasis on adversarialism, detached analysis, and competitive individualism. Each of these factors may contribute to undermining students’ sense of values, feelings of power and competence, and general sense of wellbeing. Students’ exposure to this inadequate formulation of professional identity comes at a critically important time in the formation of their identities, a time when we, as educators, ought to be particularly sensitive to the messages we send.

We encourage legal educators to correct the distorting effects of a poor conception of the legal professional identity by encouraging the development of key aspects of personality, such as empathy, that are currently under-emphasised in legal education. We also argue that by improving the ways in which the law school environment fosters resilience, legal educators will contribute to their students’ current and future well-being and to the revitalisation of the profession.

Read on SSRN

Centre: CCL, CIPL, LGDI

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

Age Discrimination in Turbulent Times

Age Discrimination in Turbulent Times

Author(s): Margaret Thornton

Concerns about the ramifications of a rapidly aging population have generally focused on the post-retirement period, with limited scholarly attention to the experience of ageism in the workplace. Despite a shift in policy against early retirement, ‘older workers’ – who may be as young as 40 – are disproportionately experiencing age discrimination, often resulting in joblessness. This article argues that in a postmodern environment, where the culture of ‘youthism’ predominates, the workplace is undergoing significant changes. In the new knowledge economy, characterised by technological know how, flexibility and choice, traditional values such as maturity, experience and loyalty have become passé. Drawing on Australian complaints and reported decisions of age discrimination in the workplace in the context of the international literature, the article demonstrates the variety of forms ageism is taking. It argues that age discrimination legislation reflects an outdated modernist paradigm that fails to address the experience of older workers. In addition, as part of the culture of youthism, work is now being gauged by its capacity to create an aesthetic of pleasure.

Read on SSRN

Centre: CIPL, CLAH

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

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH

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

Women and Discrimination Law

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH

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

Protecting (Human) Rights

Protecting (Human) Rights

Author(s): Margaret Thornton

This paper addresses the discourse of human rights in the Australian context. The resistance to human rights is apparent in the drafting of the Constitution and, subsequently, in attempts to enact a statutory bill of rights. The paper also considers the National Human Rights Consultation Report of 2009, noting how the political swing rightwards could damage the prospects of a federal Human Rights Act.

Read on SSRN

Centre: CIPL, CLAH

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

The New Racism in Employment Discrimination

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH

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

Sexual Harassment Losing Sight of Sex Discrimination

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo liberal climate that privileges employer prerogative over workers’ rights.

Read on SSRN

Centre: CIPL, CLAH

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

Electoral Malapportionment

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

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

Neoliberal Melancholia: The Case of Feminist Legal Scholarship

Author(s): Margaret Thornton

This paper arises out of a concern for the future of feminist legal scholarship in the academy. First, it considers the significance of the implosion of the category ‘woman’, suggesting that it should be understood in its particular epistemic context. Secondly, it considers the impact of the contemporary market paradigm on feminist legal scholarship and on feminist academics generally. As the prognosis is not optimistic, the paper poses the question as to whether the more appropriate site for feminist legal academics might be outside the academy.

Read on SSRN

Centre: CIPL, CLAH

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

Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same

Author(s): Margaret Thornton

Despite valiant endeavours by feminist, critical race, and Queer scholars to transform the legal culture, the transformative project has been limited because of the power of corporatism, a phenomenon deemed marginal to the currently fashionable micropolitical sites of critical scholarship. However, liberal, as well as postmodern scholarship, has largely preferred to ignore the ramifications of the “new economy,” which includes a marked political shift to the right, the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits. This paper argues that technical reasoning, or “technocentrism,” has enabled corporatism to evade scrutiny. It explores the meaning of “technocentrism,” with particular regard to legal education. Because corporate power does not operate from a unitary site, but is diffused, the paper shows how it impacts upon legal education from multiple sites, from outside as well as inside the legal academy in a concerted endeavour to maintain the status quo.

Read on SSRN

Centre: CIPL, CLAH

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

Book Review: Reflections on Democracy and Deliberation in Australia – Australia The State of Democracy

Author(s): Ron Levy

A few years ago, the convenors of the Australian National University’s Democratic Audit asked scholars of politics and of law to report on democracy in this country. The result is Australia: The State of Democracy. Not an edited collection but an ‘audit’, the book’s three authors have synthesised contributors’ reports into a single volume in order to diagnose the ‘health’ of Australian political life. The result is a revealing fullbody scan of the body politic and the institutions sustaining it.

In this article's review of the book, the focus is on the quality of political deliberation in Australia.

Read on SSRN

Centre: CIPL, CLAH, CMSL, DGAL

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

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

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

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

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

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

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

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Regulating Impartiality: Electoral-Boundary Politics in the Administrative Arena

Author(s): Ron Levy

The author examines impartiality in cases of politically contentious decision making. Many jurisdictions delegate decisions over matters such as the establishment of fair election ground rules to independent bodies. Some of these bodies, including Canada's Federal Electoral Boundaries Commissions (FEBCs), attract widespread trust and are by most accounts substantially impartial. In contrast, commissions empanelled to draw electoral boundaries in the United States, and to a lesser extent in certain Canadian provinces, are often plagued by partisanship.

The author canvasses approaches to controlling partisanship, relying on a series of interviews conducted with boundaries commissioners and on interdisciplinary literature on trust and trustworthiness in governance. Commentators often favour bolstering formal constraints on FEBC discretion. However, the author concludes that traditional administrative law models favouring such constraints are often inadequate. In politically sensitive cases these methods frequently catalyse partisanship. Proposals for more nuanced design -- design sensitive to the complex interactions between law and administrative culture in cases where the potential for partisanship is high - are better but rarer. The author focuses in particular on the use of ambiguity in legal and institutional design. Although this approach is counterintuitive in light of rule-of-law assumptions favouring clarity, it has nevertheless gained traction in commentary and has long been at work in practice. The author argues that extensively ambiguous design, as displayed by the complex federal readjustment processes in Canada, has helped to develop the widely admired impartial decision-making cultures of the FEBCs.

Read on SSRN

Centre: CIPL, DGAL

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

Normative Foundations of Technology Transfer and Transnational Benefit Principles in the Unesco Universal Declaration on Bioethics and Human Rights

Author(s):

The United Nations Scientific, Education and Cultural Organization Universal Declaration on Bioethics and Human Rights (UDBHR) expresses in its title and substance a controversial linkage of two normative systems: international human rights law and bioethics. The UDBHR has the status of what is known as a 'non-binding' declaration under public international law. The UDBHR's foundation within bioethics (and association, e.g., with virtue-based or principlist bioethics theories) is more problematic. Nonetheless, the UDBHR contains socially important principles of technology transfer and transnational benefit (articles 14, 15 and 21). This paper is one of the first to explore how the disciplines of bioethics and international human rights law may interacts in the UDBHR to advance the policy relevance and health impact of such principles. It investigates their normative ancestry in the UDBHR, as well as relevant conceptual differences between bioethics and international public law in this respect, and how these may be relevant to their conceptual evolution and application.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

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