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.

The Retreat from the Critical: Social Science Research in the Corporatised University

Author(s): Margaret Thornton

This paper considers how the contemporary environment is inducing a less critical approach towards research and impacting on academic freedom. It argues that it is not only the interventionist acts of Ministers and terror censorship that academics need to worry about, for the need to satisfy funding bodies is more insidiously exercising a depoliticising effect on research.

Read on SSRN

Centre: CIPL, CLAH

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

The Evisceration of Equal Employment Opportunity in Higher Education

Author(s): Margaret Thornton

This paper considers the way in which neoliberalism has impacted on equal employment opportunity (EEO) within the academy. Instead of a focus on the common good, there has been a shift to promotion of the self within the market. Higher education has not been immune from the contemporary imperative to commodify and privatise. Corporatisation has resulted in top-down managerialism, perennial auditing and the production of academics as neoliberal subjects. Within this context, identity politics have either moved to the periphery or disappeared altogether.

Against the background of the ramifications of the socio-political shift and the transformation of the university, the paper considers the rise and fall of EEO and the emergence of new discourses, such as that of diversity, which better suit the market metanarrative. The market has also induced a shift away from staff to students, inviting the question is to whether EEO is now passé.

Read on SSRN

Centre: CIPL, CLAH

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

Read on SSRN

Centre: CIPL, CLAH

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

Sex Discrimination, Courts and Corporate Power

Author(s): Margaret Thornton

It is notable that in more than thirty years of anti-discrimination legislation in Australia, the High Court has heard only three cases dealing with sex discrimination. Even in the case of appeals to State appellate courts, complainants are rarely successful. Drawing on Robert Cover's idea of the nomos, or normative universe, which informs modes of adjudication, this paper will consider the role of appellate courts in the production of conventionally gendered subjects. It will be argued that a homologous relationship exists between juridical, legislative and corporate power which is cemented through the techniques of legal formalism.

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

'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

Chair of the Citizenship Council

Author(s): Kim Rubenstein

This chapter appears in a collection honouring Sir Ninian Stephen, former Australian High Court Judge and Governor General. The chapter examines Sir Ninian's contributions to citizenship law in both a domestic and international context. Indeed, the chapter straddles both aspects of this book's division: Sir Ninian's domestic and international contributions. It begins by concentrating upon his Australian contributions in this field and then moves on to reflect in particular on his judgment in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Proscecutor v Dusko Tadic, which had important statements about nationality in an international humanitarian law context. As I too am interested in both jurisdictions, the chapter reflects upon the contrasts and similarities of Sir Ninian's contribution to those different jurisdictions and what they may tell us about Sir Ninian's framework for thinking about citizenship. In doing so, it is my contention that Sir Ninian is a role model to all seeking to be cosmopolitan citizens in an ever increasingly connected world.

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

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

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

The Class Action as Sheriff: Private Law Enforcement and Remedial Roulette

Author(s): Peta Spender

This essay will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.

The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.

This argument will be examined by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.

The overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practised in law firms and in the courts.

Read on SSRN

Centre: CCL

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

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

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

Rethinking Nationality in International Humanitarian Law

Author(s): Kim Rubenstein

Nationality has been central to law's understanding of membership. Moreover, the formal legal relationship between the individual and the state is that of citizenship - or nationality. However, as this chapter argues, various forces in the international context, including globalisation and the contrasting phenomena of fragmentation, express tensions besetting traditional notions of state membership in an international framework.

This chapter begins by looking at some of the issues underpinning the larger question of the role of nationality in humanitarian law. It then explores those questions in the context of the former Yugoslavia and in particular through the judgment of the War Crimes Tribunal for the Former Yugoslavia in the case of Tadic. It argues that nationality should not necessarily be a determinative factor when applying humanitarian law.

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

The Dissolution of the Social in the Legal Academy

Author(s): Margaret Thornton

This valedictory address presents an account of an experiment to set up a Department of Law and Legal Studies within a School of Social Sciences, at La Trobe University in Melbourne, with the aim of emphasising not just the role of law in its social context, but an interdisciplinary approach to the study of law. As with the attempts by the legal realists at Yale and Columbia in the 1920s and 1930s, the experiment was unsuccessful. In light of the evanescence of the vision, the question arose as to whether external political pressures, including the corporatisation of universities and the commodification of higher education, were responsible for inducing significant changes of direction or whether law is inherently resistant to the social.

Read on SSRN

Centre: CIPL, CLAH

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

The Influence of Chinese Immigration on Citizenship

Author(s): Kim Rubenstein

This article is from a paper given at a conference in 2000 which sought to do two things. First it draws out some of the legal issues central to citizenship and displays how they relate to the other disciplines in the development of citizenship in Australia. It argues there has not been a clear legal framework within which to develop an understanding of citizenship in Australia. Secondly, it argues that Chinese immigration to Australia in the second half of the 19th century was central to the evolution of citizenship in this country. Moreover, this factor has influenced the development of a legal framework that is confused, ambiguous, and contradictory about citizenship.

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

Weapons of Mass Dispassion: James Hardie and Corporate Law

Author(s): Peta Spender

This lecture honours Michael Whincop's work by examining the controversy surrounding attempts by the James Hardie Group in 2004 to isolate its liability in tort to sufferers of asbestos disease. The lecture explores the absence of passion and compassion in corporate law, explains how it deflects moral claims and scrutinises the James Hardie imbroglio in a wider institutional and philosophical context.

Read on SSRN

Centre: CCL

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

'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

Unequal Membership: The Constitution's Score on Citizenship

Author(s): Kim Rubenstein

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

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

Globalisation and Citizenship and Nationality

Author(s): Kim Rubenstein

How well are the legal concepts of citizenship and nationality travelling in a globalised world? This chapter addresses the effects of globalization on people's status and membership within their own territory, and beyond it. Citizenship is a legal, political, and social construct that has domestic and international consequences. I argue that citizenship, in its traditional meaning of participation in and membership of the nation-state, will be fundamentally altered by globalisation and will not continue to travel in the same manner that it has been. The familiar domestic and international consequences of citizenship, such as political voting rights, legal rights, including the right to leave and enter a country, and social welfare rights, will be fundamentally affected by the changes in people's connection to the nation-state. This means that it can't be recognised as a generalisable legal notion, to the extent that it may have been in the past. Moreover, as people identify and become members of more than one community, we will witness an acceptance of multi-citizenship/membership within the nation-state and within the international order. The rise of the world citizen and the changes that have occurred in the nation-state mean that citizenship and nationality will be revised concepts in the 21st century. If they are able to adapt to these changed frameworks, then citizenship and nationally may continue to travel well. This chapter is a combination of two earlier works of the author reproduced in this important book edited by Catherine Dauvergne.

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

Can the Right to Vote Be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002

Author(s): Kim Rubenstein

This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

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

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