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.

Re Herrington: Aboriginality and the Quality of Human Rights Jurisprudence in End-of-Life Decisions by the Australian Judiciary

Author(s):

In Re Herrington [2007] VSC 151 (King’s Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Collaborative Research Trials: A Strategy for Fostering Mental Health Protections in Developing Nations

Author(s):

Increasing academic and governmental attention is being directed towards improving legislative and human rights protections for the mentally ill and the mentally vulnerable in developing nations. Many states have made sincere attempts to discern such protections and enunciate them in legislation. A significant gap continues to exist here, however, between aspiration and implementation.

One strategy for improving implementation in this area, which has been little examined to date, involves the opportunities created by large-scale, collaborative research projects in developing nations. Such projects offer the potential for enhanced resources, attention and skills capable of promoting a domestic institutional culture of respect for legislative and human rights mental health protections.

This paper, as a case study, discusses the possibilities for enhancing mental health protections offered by a multi-national toxicology research project in rural Sri Lanka. The project is a Welcome Trust- funded research trial investigating treatment options for cases of self-poisoning involving organo-phosphate insecticides. It is known as the South Asian Clinical Toxicology Research Collaboration (SACTRCQ).

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Literature and Ethics

Literature and Ethics

Author(s):

There are a variety of ways in which canonical literature may influence our understanding and application of ethics. It may be read on a regular basis to promote and condition an ethical sensibility. It may provide vicarious experience that tests and develops ethical understanding. It can drive public opinion towards ethical changes in social circumstances. Such literature has been responsible for inspiring and strategizing ethical decisions made by individuals or groups. It has also shaped the way humans reflect about themselves (for example as ethical beings in possession of a conscience that needs regular exercise if they are to flourish). Such literature, however, may also have a normative role in shaping the development of ethical principles that in time may emerge as laws.

The great ethical task of literature then, as William Faulkner said, is to move attentive readers as those they influence from knowing nothing, past knowing but not caring, towards knowing, caring and acting; towards proving the ethical thesis that humanity is indestructible because of its simple will to overcome all obstacles to individual freedom.

Canonical literature’s most fundamental ethical purpose, as James Joyce’s Stephen Dedalus put it, is to encourage us to keep striving truthfully to find out what happens after the universe and why it matters.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

The Role of Law Schools in the Promotion of Human Rights

The Role of Law Schools in the Promotion of Human Rights

Author(s):

One of the IALS conference topics is, ‘educating our students for what?’

Not too long ago, the answer in Australia would have been relatively easy. We were educating our students for legal practice in the local jurisdiction. Let me comment briefly on both of those components – legal practice and the local jurisdiction – the latter first.

As US lawyers will readily understand, educating lawyers for practice in the local jurisdiction in a federal system, as you have here and we have in Australia, necessarily entailed a serious lack of national mobility for lawyers. But, in the last decade in particular, our system in Australia has been transformed by moving effectively to a national legal profession. Admission to practice in any one jurisdiction now carries with it the right to admission to practice in any other jurisdiction.

Read on SSRN

Centre:

Research theme: Human Rights Law and Policy

Literature and Ethics

Literature and Ethics

Author(s):

There are a variety of ways in which canonical literature may influence our understanding and application of ethics. It may be read on a regular basis to promote and condition an ethical sensibility. It may provide vicarious experience that tests and develops ethical understanding. It can drive public opinion towards ethical changes in social circumstances. Such literature has been responsible for inspiring and strategizing ethical decisions made by individuals or groups. It has also shaped the way humans reflect about themselves (for example as ethical beings in possession of a conscience that needs regular exercise if they are to flourish). Such literature, however, may also have a normative role in shaping the development of ethical principles that in time may emerge as laws.

The great ethical task of literature then, as William Faulkner said, is to move attentive readers as those they influence from knowing nothing, past knowing but not caring, towards knowing, caring and acting; towards proving the ethical thesis that humanity is indestructible because of its simple will to overcome all obstacles to individual freedom.

Canonical literature’s most fundamental ethical purpose, as James Joyce’s Stephen Dedalus put it, is to encourage us to keep striving truthfully to find out what happens after the universe and why it matters.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

Disabling Discrimination Legislation

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH

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

academic_un-freedom_in_the_new_knowledge_economy.jpg

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

judicial_rhetoric_and_constitutional_identity.jpg

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

Judicial Rhetoric and Constitutional Identity

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

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

The Spectral Ground

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH

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

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, CMSL, LGDI

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

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

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

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, LGDI

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

Academic Un-Freedom in the New Knowledge Economy

Academic Un-Freedom in the New Knowledge Economy

Author(s): Margaret Thornton

This chapter considers the impact on research of the neoliberal turn, a world-wide phenomenon. Instead of the pursuit of knowledge for its own sake, research is now expected to have use value in the market. What is privileged is its status and income-generating capacity, together with its value to end users. Drawing on the notion of governmentality, the chapter shows how the market ideology came to be quickly accepted through mechanisms of control that emerged at the supranational, the national, the university and the individual levels. The chapter considers how public goods, such as academic freedom, are being eroded as a result of the commodification and privatisation of knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Filling or Falling between the Cracks

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

Author(s): Kim Rubenstein, Jeremy Farrall

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

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

Read on SSRN

Centre: CIPL, CLAH

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

The Wages of Sin

The Wages of Sin: Compensation for Indigenous Workers

Author(s): Margaret Thornton

After two centuries of exploitation, Indigenous people in Australia are now engaged in a struggle to recover what has come to be known as ‘stolen wages’, although there is uncertainty as to the best legal avenue. This article overviews the course of the struggle, which began in the industrial arena but moved to the discrimination arena, where modest damages have been awarded, although academic commentary favours breach of fiduciary duty or breach of trust. Drawing on the Kantian binary of active and passive citizens, the authors argue that the initiation of civil action represents an important site of active citizenship. Viewed in this light, it is argued that breach of fiduciary duty should be rejected, if the time of the misappropriation allows it, as it instantiates the passivity and inequality associated with the colonial era, while breach of trust entails monumental problems of proof. Further recourse to anti-discrimination legislation is advocated because its theoretical framework is based on equality - a foundational premise of citizenship.

Read on SSRN

Centre: CIPL, CLAH

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

The Spectral Ground

The Spectral Ground: Religious Belief Discrimination

Author(s): Margaret Thornton

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

Read on SSRN

Centre: CIPL, CLAH

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

Disabling Discrimination Legislation

Disabling Discrimination Legislation: The High Court and Judicial Activism

Author(s): Margaret Thornton

This article takes issue with detractors of judicial activism, such as Australian High Court judge, Dyson Heydon, who claim that it undermines the rule of law. It is argued that all judging necessarily involves an activist element because of the choices that judges make. Their reliance on values is starkly illustrated in the area of discrimination law where there may be no precedents and judges are perennially faced with interpretative crossroads. The neoliberal turn and a change in the political composition of the Australian High Court post-Wik underscore the activist role. With particular reference to the disability discrimination decisions handed down by the Court in the last two decades, it is argued that it is not so much the progressive judges as the conservatives who are the rogue activists engaged in corroding the rule of law; because of the way they consistently subvert legislative intent.

Read on SSRN

Centre: CIPL, CLAH

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

Desegregation and the Struggle for Equal Schooling

Desegregation and the Struggle for Equal Schooling: Rolling the Rock of Sisyphus

Author(s): Molly Townes O'Brien

Economic integration and citizen equality have been core ideals of American public schooling since its founding. The egalitarian ideals of free schooling, however, have never matched public school reality. Closing the gap between the idealistic rhetoric and the discriminatory reality of public schooling has been the target of school reform for decades and a major goal of the Civil Rights movement. This chapter recounts the effort to achieve equal educational opportunity for African Americans through school desegregation. Beginning with 19th century cases and continuing through Brown v. Board of Education to Parents Involved in Community Schools v. Seattle School District, this chapter provides an overview of the litigation and court decisions dealing with school segregation and desegregation, and creates a picture of advancement toward and retrenchment from the goals of equal educational opportunity. It compares school reformers to Sisyphus, struggling mightily to push schools toward the ideals of equal opportunity and equal access, only to see progress roll back, time and again.

Read on SSRN

Centre: CIPL

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

Chapter 3: Citizenship Law

Chapter 3: Citizenship Law

Author(s): Kim Rubenstein

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

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

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

Read on SSRN

Centre: CIPL, CLAH

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

Pages

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