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.

A Puppy Lawyer is Not Just for Christmas

A Puppy Lawyer is Not Just for Christmas: Helping New Lawyers Successfully Make the Transition to Professional Practice

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

The research reported here is a pilot project which investigated the transitionary period from study to work for entry-level lawyers. The research was designed to identify factors which may assist new lawyers in making this a successful transition.

This is crucial research. There is no similar empirical work in Australia focusing on the transition towards a legal professional. The support and endorsement of the Law Society of the Australian Capital Territory ensured that the pilot could provide some valuable preliminary data.

The design of the study consisted in tracking a small sample of newly admitted lawyers who volunteered to be followed through their first year. The sample consisted of eleven participants (4 male and 7 female) employed variously in private and public practice in the territory. Their median age was 25 years. They worked in a range of different practices – small, medium and large private firms, and government legal practices, legal aid and community legal centres.

Data was collected between 2009 and early 2011. The study used a multi-method qualitative research approach to gather information through interviews, participant observation and self-recording of daily work activity.

Data analysis showed the crucial importance of appropriate supervision and mentoring to new lawyers’ capacity to gain autonomy and competence. Also notable was new lawyers’ need to see their work as intrinsically worthwhile, either when it provided a direct public service or more indirectly. Pro bono work was important to them. New lawyers were also keenly alert to the real ethical climate of the practice in which they worked. The way a practice treated its staff (both professional and support) was seen as a reliable indicator of its ethical culture.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

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, Legal History and Ethnology, Private Law, The Legal Profession

An Inconstant Affair

An Inconstant Affair: Feminism and the Legal Academy

Author(s): Margaret Thornton

Drawing on the Australian experience, this chapter shows how the fortunes of feminist legal theory (FLT) are closely imbricated with those of the state. The trajectory of the discomfiting liaison between feminism and the legal academy is traced over three decades to highlight the contingent nature of FLT, particularly the sensitivity to the prevailing political climate in which the pendulum swing from social liberalism to neoliberalism induces uncertainty and instability. It will be shown that under social liberalism, FLT received a modicum of acceptance within the legal academy but began to contract and then wither with the onset of neoliberalism. This has not only been disastrous for FLT, but it has also subtly brought about a remasculinisation of the academy.

Read on SSRN

Centre: CIPL, CLAH

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

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: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

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: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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 Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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, The Legal Profession

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