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.

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

Access to Essential Medicines

Access to Essential Medicines: Public Health and International Law

Author(s): Kim Rubenstein

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

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

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

Reflections on Human Rights, Law and Justice

Book Review: Watching Brief: Reflections on Human Rights, Law and Justice (Julian Burnside)

Author(s): Matthew Zagor

Julian Burnside’s collection of essays provides an insight into the mind of one of the Howard era’s most vocal public critics. Located within traditional liberal values and orthodox human rights principles, Burnside’s stories of human suffering and his Kantian appeals to human dignity are aimed at awakening our ‘imagination to understand the realities’ behind the political and legal spin of the times. Although sometimes loose with his legal language, his vision of a ‘just society’, his concerns for democracy, and his fury at the disempowerment and silencing of ‘voiceless minorities’ (notably asylum-seekers, indigenous peoples, and ‘terror’ suspects) remain persuasive and relevant to the new administrations in both Australia and the US.

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 Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

The Law School, the Market, and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of ‘customer’ and ‘service provider’. Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH

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

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

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

Civil Procedure: Commentary and Materials 4th Edition Alternative Dispute Resolution

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

This chapter provides an overview of the theory and practice of Alternative Dispute Resolution (ADR). It discusses the growing need for methods other than litigation to resolve disputes, and focuses upon the growth of mediation, and to a lesser extent arbitration, in Australia. Other methods of dispute resolution are also discussed.

In the context of mediation, the structure of the mediation process is outlined, and the nature of consensual dispute resolution is explained. Four of the key features of mediation, namely accessibility, voluntariness, confidentiality and facilitation are analysed. Other issues such as power imbalance, enforceability of agreements to mediate and evaluation of mediation are also discussed.

The process of arbitration is then introduced, and the requirements of the Commercial Arbitration Acts are outlined. Finally, court-annexed mediation and arbitration, and the role of the legal profession in ADR practice are discussed.

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

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH

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

Fresh Perspectives on the ‘War on Terror’

Author(s): Miriam Gani

On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W. Bush declared a ‘war on terror’. The concept of the ‘war on terror’ has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The ‘war on terror’ is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world.

This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy

Medical Professionals Convicted of Accessing Child Pornography - Presumptive Lifetime Prohibition on Paediatric Practice?

Author(s):

Health Care Complaints Commission v Wingate [2007] NSWCA 326 concerns an appeal from the New South Wales Medical Tribunal regarding its findings on professional misconduct outside the practice of medicine in relation to a doctor convicted of possessing child pornography. The latest in a number of cases on this issue in Australia, it highlights the complexity of such decisions before medical tribunals and boards, as well as the diversity of approaches taken. Considering both this case and the recent Medical Practitioners Board of Victoria case of Re Stephanopoulos [2006] MPBV 12, this article argues that Australian tribunals and medical boards may not yet have achieved the right balance here in terms of protecting public safety and the reputation of the profession as a whole. It makes the case for a position statement from Australian professional bodies to create a presumption of a lifetime prohibition on paediatric practice after a medical professional has been convicted of accessing child pornography.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy

The United Nations Human Rights System and the Protection of the Environment

Author(s): Donald Anton

The following another draft Chapter in a forthcoming text on Human Rights and the Environment by Anton and Shelton, to be published by Cambridge Univ. Press in 2009. The chapter walks students through possible avenues for environmental protection within the U.N. human rights system.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

Is the Environment a Human Rights Issue

Is the Environment a Human Rights Issue?

Author(s): Donald Anton

The following is an introductory chapter from a forthcoming teaching text on Human Rights and the Environment by Donald K. Anton & Dinah Shelton. Feedback is welcome.

Read on SSRN

Centre: CLAH

Research theme: Environmental Law, Human Rights Law and Policy

German Law Journal

Contemporary Research and the Ambiguity of Critique

Author(s): Margaret Thornton

Within the marketised context of higher education, research is valued less for its contribution to scholarship than for its income-generating capacity and value to end users. Commodification has significant ramifications for academic freedom as can be seen by the example of research consultancies. Academic freedom is also being affected by the direct interference of neoliberal governments in research policy. While terror censorship is a dramatic manifestation of interference, critical research is also affected by the everyday practices of the contemporary academy. All these factors contribute to the production of de-politicised knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

German Law Journal

The Law School, the Market and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of "customer" and "service provider". Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH

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

From this Time Forward

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

Read on SSRN

Centre: CIPL, CLAH

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

'Otherness' on the Bench: How Merit is Gendered

Author(s): Margaret Thornton

This paper focuses on the construction of merit as the key selection criterion for judging. It will show how merit has been masculinised within the social script so as to militate against the acceptance of women as judges. The social construction of the feminine in terms of disorder in the public sphere fans doubts that women are appointable - certainly not in significant numbers to the most senior levels of the bench. It is argued that merit, far from being an objective criterion, operates as a rhetorical device shaped by power. The paper will draw on media representations of women judges in three recent Australian scenarios: an appointment to the High Court; the appointment of almost 50 percent women to Victorian benches; and the scapegoating of a female chief magistrate (resulting in imprisonment) in Queensland.

Read on SSRN

Centre: CIPL, CLAH

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

The Gender Trap: Flexible Work in Corporate Legal Practice

Author(s): Margaret Thornton

Despite the fact that women comprise well over 50 per cent of law graduates in many parts of the world, women lawyers continue to be clustered disproportionately in the lower echelons of the profession. This paper considers the role of flexible work as a gender equity strategy and is illuminated by interviews with lawyers in élite corporate firms in Australia. It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships. Not only is there a residual suspicion of the feminine in positions of authority and resistance to the idea of bodily absence from the workplace, the contemporary market discourse has erased a commitment to social justice and equality.

Read on SSRN

Centre: CIPL, CLAH

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

The Demise of Diversity in Legal Education

Author(s): Margaret Thornton

This paper explores the contradictions arising from the simultaneous commitment to globalisation and diversity. The backdrop to the study is the marked shift to the right that has occurred in State and federal politics, emulating the global trend that has resulted in neo-liberalism supplanting social liberalism as the dominant ideology.

Neo-liberalism, or market liberalism, necessarily locates its subjects within the market where they are expected to vie with one another for survival and success.

Globalisation is one manifestation of neo-liberal competition policy which, along with corporatisation and privatisation, displays little interest in diversity politices, other than as a means of enhancing market image. Indeed, the feminine is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures. there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical content of all kinds. The paper considesr how neo-liberal and globalising imperatives are impacting on legal education in (1) the appointment of academic staff; (2) the shaping of the curriculum; (3) the profile of the 'consumers' of legal education; (4) the cartography of legal knowledge.

Read on SSRN

Centre: CIPL, CLAH

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

Feminism and the Changing State: The Case of Sex Discrimination

Author(s): Margaret Thornton

This paper examines the ambiguous relationship between feminism and the state through the lens of sex discrimination legislation. Particular attention will be paid to the changing nature of the state as manifested by its political trajectory from social liberalism to neoliberalism over the last few decades. As a creature of social liberalism, the passage of sex discrimination legislation was animated by notions of collective good and redistributive justice, but now that neoliberalism is in the ascendancy, we see a resiling from these values in favour of private good and promotion of the self through the market. This cluster of values associated with neoliberalism not only serves to reify the socially dominant strands of masculinity, it also goes hand-in-glove with neoconservatism, which is intent on restricting the inchoate freedoms of women. The erosion of social liberal measures has caused many feminists to feel more kindly disposed towards the liberal state. Some attempt to unravel the contradictions relating to feminism and the state with particular regard to the key discourses of equality of opportunity.

Read on SSRN

Centre: CIPL, CLAH

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

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