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.

Book cover

Digital Games and Learning

Editor(s): Paul Maharg, Sara de Freitas

The popularity of entertainment gaming over the last decades has led to the use of games for non-entertainment purposes in areas such as training and business support. The emergence of the serious games movement has capitalized on this interest in leisure gaming, with an increase in leisure game approaches in schools, colleges, universities and in professional training and continuing professional development. The movement raises many significant issues and challenges for us. How can gaming and simulation technologies be used to engage learners? How can games be used to motivate, deepen and accelerate learning? How can they be used to greatest effect in learning and teaching? The contributors to this book explore these and many other questions that are vital to our understanding of the paradigm shift from conventional learning environments to learning in games and simulations. 

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Centre:

Research theme: Legal Education

Creating the Right Spaces: Civil Participation and Social Inclusion: A Report on West Heidelberg Residents' Conflict Management Workshops

Author(s): Elizabeth Curran

The report is written with the view that the workshops and the lessons drawn from them can aid in providing a community engagement model for other residential groups in different localities as well as for other community projects with different social groups. With this aim in mind, the hope is to encourage the completion of the project as envisaged which involves a comprehensive approach to civil participation, conflict management and constructive communication involving all sectors of civil society.

The report outlines the approach taken to the workshops and their outcomes and some of the challenges for communities who feel excluded and who may not have had positive experiences or training in how to navigate complex systems and have conversations. It makes some recommendations and outlines some of the lessons learned by all.

The workshops achieved the overall goal of the ‘Creating Right Spaces’ project: of benefiting people with the least access to justice and community development to voice their concerns and learn some skills that could be helpful to them. This was achieved on a small scale and yet this project demonstrates how beneficial such a program can be as well as the importance of it being a continuing project. “One off” funding misses the opportunity for ongoing recurrent work. Continued support is necessary if any real gains are to be made to ensure behaviour change and ongoing skills development and to ensure that the work can transcend often fixed negative patterns of behaviour and give people the capacity to generate real, long lasting and sustainable positive change.

The extraordinary richness of the interactions that arose in the workshops occurred not just from the stories shared and the skills learnt together but, in the words of the residents, from the growing awareness of how the strength of a community comes from within the community itself and its ability to organise, support and respect its members as well as learn more about creating better relationship and engagements. There was individual and collective growth which involved rekindling a sense of being worthy of happiness, opportunities, and a better future – and this happened because the group itself supported each person to take risks, acknowledged each other’s strengths and weaknesses, and demonstrated honesty, respect and gratitude.

Read on SSRN

Centre: CLAH

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education

Recent Developments in Australian Legal Education

Recent Developments in Australian Legal Education

Author(s):

First of all, may I congratulate Chuo University on its 125th anniversary. In the modern age, a time of rapid and relentless change, institutions of such longevity are rare. Begun in 1885 as the English Law School – Igirisu Horitsu Gakko – by 18 young attorneys and scholars led by Rokuichiro Masujima, the establishment of what is now Chuo University followed the establishment of a number of other private law schools, all responding to a perceived need to increase the legal training and professionalism of Japan’s judges and prosecutors. Given the close relationship between Japan and England at the time (despite the role of US Commodore Perry in the opening up of Japan to the world some 30 years earlier), the founders of Chuo University looked particularly to English law, and were evidently impressed by the ‘practical application’ and ‘flexibility’ of the precedent-based analogical reasoning of the common law. Historians have tended to characterise the spread of English law throughout the world in the 19th century as largely the result of colonial imposition, as in the case of India, or colonial settlement, as in the case of Australia, but the example of the founding of Chuo University reminds us that it sometimes happened by choice.

However, with the advent of the Meiji Constitution and a number of civil codes, Japanese law could not be ignored, and in 1889, the English Law School became the Tokyo College of Law – Tokyo Hogakuin – and, soon after, the first issue of what is now the Chuo Law Review – Hogaku Shipo – appeared. After a further name change in 1903 to the Tokyo University of Law – Tokyo Hogakuin Daigaku – the name of Chuo, meaning ‘middle’ or ‘central’, was adopted in 1905. I understand that there is some uncertainty about whether this was because some of the founders had attended Middle Temple in England, or because of the university’s central location, or indeed whether it reflected some concept of the middle ground in scholarship. No doubt the destruction of documentary records in the great fires of 1892, 1917 and 1923 has made definitive resolution of this question difficult.

Read on SSRN

Centre:

Research theme: Legal Education

Recent Developments in Australian Legal Education

Recent Developments in Australian Legal Education

Author(s):

First of all, may I congratulate Chuo University on its 125th anniversary. In the modern age, a time of rapid and relentless change, institutions of such longevity are rare. Begun in 1885 as the English Law School – Igirisu Horitsu Gakko – by 18 young attorneys and scholars led by Rokuichiro Masujima, the establishment of what is now Chuo University followed the establishment of a number of other private law schools, all responding to a perceived need to increase the legal training and professionalism of Japan’s judges and prosecutors. Given the close relationship between Japan and England at the time (despite the role of US Commodore Perry in the opening up of Japan to the world some 30 years earlier), the founders of Chuo University looked particularly to English law, and were evidently impressed by the ‘practical application’ and ‘flexibility’ of the precedent-based analogical reasoning of the common law. Historians have tended to characterise the spread of English law throughout the world in the 19th century as largely the result of colonial imposition, as in the case of India, or colonial settlement, as in the case of Australia, but the example of the founding of Chuo University reminds us that it sometimes happened by choice.

However, with the advent of the Meiji Constitution and a number of civil codes, Japanese law could not be ignored, and in 1889, the English Law School became the Tokyo College of Law – Tokyo Hogakuin – and, soon after, the first issue of what is now the Chuo Law Review – Hogaku Shipo – appeared. After a further name change in 1903 to the Tokyo University of Law – Tokyo Hogakuin Daigaku – the name of Chuo, meaning ‘middle’ or ‘central’, was adopted in 1905. I understand that there is some uncertainty about whether this was because some of the founders had attended Middle Temple in England, or because of the university’s central location, or indeed whether it reflected some concept of the middle ground in scholarship. No doubt the destruction of documentary records in the great fires of 1892, 1917 and 1923 has made definitive resolution of this question difficult.

Read on SSRN

Centre:

Research theme: Legal Education

The New Racism in Employment Discrimination

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

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

women_and_discrimination_law.jpg

Women and Discrimination Law

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Developing a Professional Identity in Law School

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

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

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

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

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

Read on SSRN

Centre: CCL, CIPL, LGDI

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

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

Criminal Law: Defences to Homicide

Criminal Law: Defences to Homicide

Author(s): Anthony Hopkins

This chapter explores a few of the contexts and the defences for women who kill in Australia. Focusing on battered women who kill, women with PMS and women with post-partum depression, we examine what lawyers should look for in the cases, how to communicate with their clients most effectively to identify whether these background variables were present, possible pleas to argue, and how best to help the Court to hear the women’s case.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education

Age Discrimination in Turbulent Times

Age Discrimination in Turbulent Times

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Post-Feminism in the Legal Academy

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Women and Discrimination Law

Women and Discrimination Law

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Protecting (Human) Rights

Protecting (Human) Rights

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

The New Racism in Employment Discrimination

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

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Sexual Harassment Losing Sight of Sex Discrimination

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

Walking in Her Shoes

Walking in Her Shoes: Battered Women Who Kill in Victoria, Western Australia and Queensland

Author(s): Anthony Hopkins

In the light of the common law doctrine of self-defence in Australia, this article considers legislative reforms in Victoria, Western Australia and Queensland to determine the extent to which they require judges and jurors to walk in the shoes of battered women in pursuit of an evaluation of reasonableness. It will be argued that, with the exception of Queensland, which has emphasised the necessity to judge reasonableness from the perspective of the battered woman only in so far as this may enable a verdict of murder to be reduced to manslaughter, the reforms have clarified or extended the common law position.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education

Curriculum (Re)Development ‘On the Job’ in Higher Education

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education

Curriculum (Re)Development ‘On the Job’ in Higher Education

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education

Neoliberal Melancholia: The Case of Feminist Legal Scholarship

Author(s): Margaret Thornton

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

Read on SSRN

Centre: CIPL, CLAH

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

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