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.

Labelling Illogic? Food Animal Welfare & the Australian Consumer Law

Author(s): Alex Bruce

This article is intended as the first of two exploring whether, and to what extent an existing regulatory regime in the form of the new Australian Consumer Law ("the ACL") and the economic forces of informed consumer demand that it protects, can be employed to advance food animal welfare initiatives and the address practices associated with the religious slaughter of animals.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law and Religion, Private Law

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. 

Order your copy online

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

Fault Lines in Equity

Editor(s): Pauline Ridge, Jamie Glister

Equity, the body of law developed in the English Court of Chancery, has a long and distinguished history. In the twenty-first century it continues to be an important regulator of both commercial and personal dealings, as well as informing statutory regulation. Although much equitable doctrine is settled, there remain some intractable problems that bedevil lawyers across jurisdictions. The essays in this collection employ new historical, comparative and theoretical perspectives to cast light on these fault lines in equitable doctrine and methodology.  Leading scholars and practitioners from England, Australia and New Zealand examine such contentious topics as personal and proprietary liability for breaches of equitable duties (including fiduciary duties), the creation of non-express trusts, equitable rights in insolvency, the fiduciary 'self dealing' rule, clogs on the equity of redemption, the distribution of assets on family breakdown, and the suitability of unjust enrichment analysis. The authors address specific doctrinal questions as well as the 'meta' issues of organisation and methodology, and their findings will be of value to academics and practitioners alike.

Order your copy online

Centre: CCL

Research theme: Private Law

Spender, Civil Procedure

Civil Procedure - Commentary and Materials (5th edition)

Author(s): Peta Spender, Stephen Colbran, Sheryl Jackson, Roger Douglas, Tania Penovic

Civil Procedure Commentary & Materials provides students and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. Civil Procedure Commentary & Materials combines a wealth of primary and secondary materials from all jurisdictions. The common law is clearly set out, together with extensive practical commentary. Each chapter features in-depth questions and notes together with lists of further reading to aid and extend understanding. Civil Procedure Commentary & Materials examines and discusses each substantive and procedural step in the trial process.

Order your copy online

Centre: CCL

Research theme: Private Law

Book cover

Animal Law in Australia: An Integrated Approach

Author(s): Alex Bruce

Written in a clear, engaging and accessible style, it is suitable as a teaching text for Animal Law courses, and for the wider legal community and general reader interested in animal welfare. This is the first Australian text to offer a truly integrated and comprehensive coverage of animal law issues. It combines the philosophical and ethical dimensions to animal law with the practical, legal and regulatory frameworks governing animals in Australia. It features a comprehensive, balanced coverage of animal law issues in Australia ensures readers will gain a solid understanding of the wider regulatory regime in Australia. Each chapter integrates the philosophical/ethical discussion with practical issues and the legal context to demonstrate the relationship between these dimensions, allowing readers to gain an understanding of the background driving current regulatory regimes. Chapters include clear learning objectives, stimulus questions and further reading to facilitate depth and breadth of learning for both students and the general reader.

Order your copy online

Centre: CCL

Research theme: Administrative Law, Private Law

Book cover

Annotated Safety, Rehabilitation and Compensation Act 1988 (9th ed)

Author(s): , Peter Sutherland, John Oman Ballard, Allan Anforth

The 9th edition of this well-known reference book provides the full text of the Act and comprehensive annotations, organised on a section by section basis, covering all significant decisions of the High Court, the Federal Court and the Administrative Appeals Tribunal. The book includes a list of all instruments gazetted under the Act or entered in the Register of Legislative Instruments, and consideration of military compensation arrangements under the Act, Defence Determination 2000/1 and the Military Rehabilitation and Compensation Act 2004. Canberra barrister Allan Anforth contributes an expanded Practitioner's Guide aimed at claimants under the Act and their advocates.

Order your copy online

Centre: CIPL

Research theme: Administrative Law, Private Law

Changing Our Thinking

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

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

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

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 Notional Legislator

The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker

Author(s): Stephen Bottomley

This article was awarded the 2011 Zines Prize for Excellence in Legal Research, an annual award for the best article published in the Federal Law Review.

Along with its power to exercise 'on the ground' discretion to alter the way in which legislative rules are applied (for example, by granting exemptions in particular cases), the executive agency that is charged with administering the corporations legislation in Australia has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This article examines the discretionary power of the Australian Securities and Investments Commission (ASIC) to change the operation of the Corporations Act 2001 by issuing Class Orders that omit, modify or insert provisions into the Act. The existence and operation of ASIC's power has attracted little critical attention in the legal literature, be it academic, judicial, or professional. This article examines the scope of this power, its operation and history. The article is prompted by a concern that the system of statutory modification via Class Order, while beneficial to the flexible regulation of the corporate and finance sector, has developed into a substantial and complex body of 'notional legislation'.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Adventures on the Barbary Coast

Adventures on the Barbary Coast: Morrison and Enforcement in a Globalised Securities Market

Author(s): Peta Spender

Although efforts have been made to develop international or harmonised regimes for the enforcement of securities law, the global architecture of securities regulation is underdeveloped. In particular, the harmonisation project may be sidelined by nations enforcing their securities laws extraterritorially. Notwithstanding issues of comity, the extraterritorial operation of the anti-fraud provisions in United States securities law has been expansively interpreted by US courts, particularly in multinational securities class actions, and the US has accordingly been portrayed as a securities policeman or, more disparagingly, a legal imperialist. This ended abruptly with the US Supreme Court decision in Morrison v National Australia Bank Ltd, where it was held that the anti-fraud provisions did not apply in an action brought by an Australian investor against an Australian company listed on an Australian exchange. This case note will examine the context and consequences of Morrison, including the legislation passed by Congress in its wake, the tensions caused if US citizens lose the ‘protective shield’ of US law and the centrifugal effect of the decision that may lead to more securities class actions being commenced in Australia.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Do Sacred Cows Make the Best Hamburgers

Do Sacred Cows Make the Best Hamburgers? The Legal Regulation of Religious Slaughter of Animals

Author(s): Alex Bruce

There is now a significant body of literature demonstrating the close link between religious beliefs and the choices consumers make in their purchasing decisions. Studies into the relationship between religion and consumer preferences also demonstrate the formative role that religion plays in influencing the choice of food consumption.

Despite recent and more sophisticated scientific studies suggesting that animals experience more pain when slaughtered by religious ritual, the practice is not likely to be prohibited. Although there is a general movement in Western societies toward increased recognition of animal interests and welfare, there is no philosophical consensus attributing sufficient weight to the interests of animals that would outweigh human rights claims recognised through freedom of religious practice.

Read on SSRN

Centre: CCL, CIPL

Research theme: Law and Religion, Private Law

The Notional Legislator

The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker

Author(s): Stephen Bottomley

This article was awarded the 2011 Zines Prize for Excellence in Legal Research, an annual award for the best article published in the Federal Law Review.

Along with its power to exercise 'on the ground' discretion to alter the way in which legislative rules are applied (for example, by granting exemptions in particular cases), the executive agency that is charged with administering the corporations legislation in Australia has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This article examines the discretionary power of the Australian Securities and Investments Commission (ASIC) to change the operation of the Corporations Act 2001 by issuing Class Orders that omit, modify or insert provisions into the Act. The existence and operation of ASIC's power has attracted little critical attention in the legal literature, be it academic, judicial, or professional. This article examines the scope of this power, its operation and history. The article is prompted by a concern that the system of statutory modification via Class Order, while beneficial to the flexible regulation of the corporate and finance sector, has developed into a substantial and complex body of 'notional legislation'.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Changing Our Thinking

Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum

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

We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.

In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.

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

Adventures on the Barbary Coast

Adventures on the Barbary Coast: Morrison and Enforcement in a Globalised Securities Market

Author(s): Peta Spender

Although efforts have been made to develop international or harmonised regimes for the enforcement of securities law, the global architecture of securities regulation is underdeveloped. In particular, the harmonisation project may be sidelined by nations enforcing their securities laws extraterritorially. Notwithstanding issues of comity, the extraterritorial operation of the anti-fraud provisions in United States securities law has been expansively interpreted by US courts, particularly in multinational securities class actions, and the US has accordingly been portrayed as a securities policeman or, more disparagingly, a legal imperialist. This ended abruptly with the US Supreme Court decision in Morrison v National Australia Bank Ltd, where it was held that the anti-fraud provisions did not apply in an action brought by an Australian investor against an Australian company listed on an Australian exchange. This case note will examine the context and consequences of Morrison, including the legislation passed by Congress in its wake, the tensions caused if US citizens lose the ‘protective shield’ of US law and the centrifugal effect of the decision that may lead to more securities class actions being commenced in Australia.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

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, Stephen Tang, Kath Hall

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.

Read on SSRN

Centre: CIPL

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

A Mirror to the Man

A Mirror to the Man: Reflecting on Justice William Deane: A Private Man in Public Office

Author(s): Heather Roberts

Sir William Deane was a member of the High Court of Australia during one of its most creative periods, from 1982 to 1995. His decisions displayed a notable commitment to social justice and a willingness to extend the constitutional protection of human rights. These tendencies were particularly prominent during the Mason Court years (1987-1995), manifesting in decisions including Mabo v Queensland (No 2) (1992) 175 CLR 1; Dietrich v The Queen (1992) 177 CLR 292; Leeth v Commonwealth (1992) 174 CLR 455; and the political communication cases of 1992 and 1994. Although his judgments displayed a clear vision of his judicial responsibilities, Deane adopted a strict extra-judicial silence regarding the principles that informed his judicial philosophy. However, as Australia's 22nd Governor-General Deane was more open regarding his personal beliefs and their influence on his performance of those duties. This article utilises Deane's public statements as Governor-General to shed light on the foundations of his judicial philosophy. In particular, as Governor-General Deane drew on his Christian faith to support his commitment to highlight the cause of indigenous reconciliation and the plight of the disadvantaged in Australia. This article argues that Deane's spiritual convictions, as articulated in his vice-regal statements, can also be regarded as underpinning his understanding of his role as High Court Justice.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Private Law

Digital Copyright and Disability Discrimination: From Braille Books to Bookshare

Author(s):

In Australia, blind people are able to access texts in braille and books on tape, but the demand for these media is decreasing. Blind people today are increasingly reliant on texts in electronic form, and these are much less readily available in Australia. Electronic texts are more portable and less cumbersome than large braille volumes, and are much faster to navigate than audio recordings. However, in Australia it is difficult for blind people to get access to a wide range of electronic texts and there exists no scheme enabling such access. At the same time sighted people are using electronic text and other digital media at an ever-increasing rate. In order to approximate the same level of access as sighted people, blind people require access to accessible electronic versions of all published material. The authors suggest that given the legal imperatives of Australia's domestic legislation, treaty obligations and social values, that there exists a moral imperative to create a scheme providing blind people with access to digital print media.

Read on SSRN

Centre: CCL

Research theme: International Law, Law and Technology, Private Law

Book cover

Consumer Protection Law in Australia

Author(s): Alex Bruce

An indispensible guide to Australia's new consumer protection and product liability laws. On 1 January 2011, the largest reform of Australian consumer protection laws ever undertaken commences. With the introduction of the Australian Consumer Law within the Competition and Consumer Act 2010, the landscape of consumer protection and product liability law fundamentally changes. A single national regime replaces the consumer protection provisions in the Trade Practices Act 1974 and 17 generic consumer protection laws that existed across the States and Territories. Consumer Protection Law in Australia provides a clear and detailed explanation of the changes implemented by the new consumer protection regime, making the book an invaluable guide for legal practitioners, academics and students. The application and effect of the new Australian Consumer Law is made accessible, to provide a thorough understanding of the new legislative landscape.

Order your copy online

Centre: CCL

Research theme: Administrative Law, Private Law, Regulatory Law and Policy

Low Level Racist Speech: Beyond Law's Reach?

Author(s):

The nature of racist speech is changing as social mores on matters of race and multiculturalism evolve. However, the underlying intent of the disseminators of racist speech – to divide and subjugate – remains much the same. Part IIA of the Racial Discrimination Act appears to lack the capacity to deal with racist speech that is sophisticated and not profane. This presents a problem, particularly when a racist message can effectively be conveyed with subtlety and without crudity. The effect of this failure on the part of Australia’s racial vilification laws is to effectively privilege the speech of mainstream commentators. Part IIA of the RDA appears to have been drafted with a view to preventing the harms that arise from extreme racist speech and speech encouraging violence. But such speech is rare or is quarantined to the margin of Australian life. The type of racism that is problematic is that which is more insidious, sophisticated, yet visible and divisive and exclusionary in its operation. This is the type of speech that Part IIA needs to engage with if it is to have any meaning in broader Australian life. Further, it is possible for Part IIA to play a role in educating and challenging racist speech without undermining Australian democracy and the general freedom of speech.

Read on SSRN

Centre: CIPL

Research theme: International Law, Law and Technology, Private Law

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

The Legal Profession in Times of Turbulence

The Legal Profession in Times of Turbulence

Author(s): Vivien Holmes, Kath Hall

From 15 to 17 July 2010, over 150 lawyers, academics and practitioners gathered at Stanford University for the Fourth International Legal Ethics Conference. The number of participants and the breadth and quality of the presentations at this conference were clear evidence of the continuing energy and enthusiasm amongst scholars and practitioners for the field of legal ethics. While the tranquil and beautiful summertime campus at Stanford and the quiet efficiency of the conference organising staff did not echo the theme of the conference (Times of Turbulence), many sessions during the full conference schedule did. In particular, we were constantly reminded of the rapid and complex changes occurring in legal practice across the globe, and the consequent challenges faced by both the legal profession and academia in understanding, practicing and teaching legal ethics.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Legal Education, Private Law, Regulatory Law and Policy

Pages

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