ANU College of Law

Permanent URI for this collectionhttps://hdl.handle.net/1885/146660

Recognised around the world, research at the ANU College of Law has long been known for scholarly excellence and positive impact. Since being established, the College has attracted academics, researchers and practitioners from across Australia and abroad. Together, these scholars have engaged with governments, communities and the wider legal profession to produce world-class research, and make important contributions to the development of the law and public policy in Australia and internationally. Our scholars are often acknowledged in Australia and around the world as leaders in their fields, and our research success is apparent not only in academic publications, but our research-led teaching and significant contributions to public debate and policy-making

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Open Access
Academic underperformance in ACT schools: An analysis of ACT school performance in NAPLAN over the period 2012 to 2016
(Canberra, ACT : College of Law, The Australian National University, 2018-08-21) Macintosh, Andrew; Wilkinson, Debra
These reports raise questions about the pervasiveness and causes of the apparent underperformance of ACT schools in NAPLAN. To shed further light on these issues, this report presents the results of an analysis that compared the NAPLAN performance of ACT primary and secondary schools to schools with similar socio-economic profiles. The analysis adds to the previous reports by covering all government and non-government school results for Years 3, 5, 7 and 9 over the period 2012 to 2016.
Embargo
The Arbitration between the People's Republic of China and the Philippines over the Dispute in the South China Sea
(ANU College of Law, 2014-11) Rothwell, Donald
International law has a significant role to play in the multiple disputes that exist throughout the South China Sea. The first relevant area of international law is that dealing with territoriality and the basis under international law that States are able to assert, and have recognised, territorial claims. The second body of international law of relevance is that associated with the law of the sea. The law of the sea has steadily developed over 400 years, first through customary international law based upon the practice of states and then post World War II increasingly through the development of new treaties. The 1982 United Nations Convention on the Law of the Sea (LOSC), which entered into force in 1994, is the dominant international law of the sea instrument that identifies the scope and extent of various maritime zones, provides mechanisms for the delimitation of maritime boundaries, and also for the resolution of international disputes as they relate to the law of the sea. This paper reviews these issues as they particularly apply with respect to the mechanisms that are available to states under Part XV of the LOSC to resolve their disputes, in the context of the Philippines application commenced against China in January 2013. Particular attention is given to Article 298 of the LOSC and to the default mechanism of conciliation as a means of dispute resolution. It does so in the context of China’s Article 298 declaration and the implications that may have for the outcome of Annex VII Arbitration proceedings. This paper commences with a review of those proceedings, before turning to consider mechanisms generally under Part XV of the LOSC, Article 298 declarations, and Annex V Conciliation. In conclusion some consideration will be given to the implications of these mechanisms for the Philippines/China South China Sea dispute.
Embargo
Beloved Madam: The Indonesian ad hoc Human Rights Court
(Clarus Press, 2009) Harris-Rimmer, Susan
Open Access
Cabinet appointments in the Howard Government 1996–2007
(Social Science Electronic Publishing, Inc.) Dalvean, Michael Coleman
The purpose of this paper is to examine the factors that were associated with cabinet appointment in the Howard Government 1996 – 2007. Broadly, the factors that are cited as important in cabinet appointment in general fall into two categories: the representational and the personal. The representational factors are those that are associated related to an individual’s role as a “representative”. The personal factors are those that are associated with an individual’s personal qualities. Thus, an individual who impresses the selectorate with her oratorical or technical skills may stand a higher chance of being selected than another individual who does not have such skills. In this paper I will demonstrate that the representational factors provide negligible explanation for cabinet appointments in the Howard government. In contrast, the personal factors were significantly more important. In particular, I identify the level of concreteness/abstractness in a parliamentarian’s first speech in parliament as an important factor.
Open Access
Dispute Concerning Japan’s JARPA II Program of ‘Scientific Whaling’ (Australia v Japan): A backgrounder
(Canberra, ACT: College of Law: The Australian National University, 2010) Anton, Donald
On May 31, 2010, Australia filed its Application Instituting Proceedings against Japan in the Registry of the International Court of Justice (ICJ). The commencement of the action by Australia brings to a head the dispute (sometimes acrimonious) concerning Japan’s annual Southern Ocean whale hunt that has persisted over twenty years. In general terms, Australia alleges that the implementation of the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JAPRA II) is a breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (“ICRW”), as well as its other international obligations under the Convention on International Trade in Endangered Species (CITES) and the Convention on Biological Diversity (CBD) for the preservation of marine mammals and the marine environment. This brief note outlines the allegations and offers a brief analysis.
Open Access
Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A partnership between ARC Justice Ltd and Bendigo Community Health Services
(SSRN) Curran, Elizabeth
This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017. ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage. ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution. This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised. The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.
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How to 'Do' Legal Pluralism
(Social Science Research Network (SSRN), 2007) Forsyth, Miranda
This paper presents a method of using the doctrine of legal pluralism as a tool for engaging in practical law reform in legally pluralist jurisdictions. To date, the theory of legal pluralism which, fundamentally, stresses the importance of recognising that non-state legal systems, such as customary or religious systems, may co-exist together with the state system, has been used primarily by scholars to produce descriptive and non-comparative work. This paper, however, demonstrates that the theory may be used to answer fundamental normative questions about the relationships of legal systems in a particular jurisdiction. It sets out a new process that any jurisdiction may use to maximise the chances that the various legal systems that co-exist within it will operate in ways that support and enrich each other, rather than undermine and compete with each other. It is based on a doctoral study that was conducted in Vanuatu, a small island state in the South Pacific, and uses examples drawn from that study.
Open Access
Inaugural Professorial Address : Twenty years of open government - what have we learnt? :
(The Australian National University) McMillan, John
[Introduction]:...The choice of topic was, for me, an easy one. The campaign for open government was the first topic on which I developed an academic and professional interest. That was at a time, in the early 1970s, when the concept of open government did not enjoy widespread acceptance. The mood was aptly captured a little later by Sir Arnold Robinson’s explanation to Sir Humphrey Appleby – “Open government is a contradiction in terms. You can be open – or you can have government”. Sir Humphrey agreed: the word “secretary”, he noted, is after all a derivative of “secret”.... The first assurance of change was a promise by the new Whitlam Government in 1972 to enact a freedom of information Act along the lines of the 1967 United States law. The realisation of that promise, ten years later, was a confirmation that government was changing, but of how difficult it was to accomplish that change. The intervening development of the legislative model told the story. An interdepartmental committee appointed by the Government to develop a legislative model took nearly two years to prepare its report of 18 pages. Sent back to the drawing board, it returned two years later with a report that had grown to 100 pages. The Senate Standing Committee on Legal and Constitutional Affairs then took control of the reform agenda, conducting hearings around Australia, receiving submissions in support of a stronger law from over 125 individuals, public interest groups, unions and professional associations, and delivering finally a report of over 500 pages, heralded at the time as one of the finest products of the Senate committee system. The momentum was sustained when six government senators crossed the floor to vote with the Opposition in favour of a stronger FOI law..... The Freedom of Information Act 1982 (Cth) was a part, a small but vital part, of the revolution in government and thinking that occurred in Australia. The Act thus serves as a barometer of sorts for measuring the strength of government commitment to openness. I want to return to that issue –problems with the FOI Act, and contemporary challenges to open government – but before doing so it is important to paint a fuller picture of the current structural basis for open government in Australia. I will look at three areas of structural support – legal doctrine, the framework of government, and our philosophy of government.
Open Access
Introductory note to Intergovernmental Panel on Climate Change, Fourth Assessment Synopsis Report Summary for Policy Makers and the Bali Action Plan
(College of Law: The Australian National University, 2008) Anton, Donald
This note sets out the background to the Bali Action Plan, including the IPCC Fourth Assessment Synopsis Report Summary for Policymakers. It outlines the key features of both documents. The Note appears in 47 International Legal Materials 94 (2008).
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Patentable subject matter. Response to IP Australia's "Consultation on an objects clause and an exclusion from patentability", July 2013
(Social Science Research Network (SSRN)) Moir, Hazel V J
The major focus of this paper is introducing an objectives clause in patent statutes. Such proposals have been made in Australia as it is clear from case law that judges need better direction as to the goals of the patent system. An advisory group, composed largely of patent system beneficiaries, has put forward a very poor, self-serving proposal. This paper identifies the key economic goals and proposes wording that would encourage a shift towards the genuine purpose of patent systems. Attention is also paid to how ordre public exclusions from patentability should be handled.
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The price of market access: patent give-aways in AUSTFA and since
(Social Science Research Network (SSRN)) Moir, Hazel V J
Government-backed restraints on trade sit uneasily within trade agreements, whether “free" or preferential. This paper reviews the patent and data exclusivity provisions of the AUSFTA to assess this component of the cost of increased US market access. It also traces other trade agreements which Australia has initiated or participated in, to see how demands for ever greater restraints on trade have developed. The patent and data exclusivity elements of these agreements are assessed against a benchmark of a balanced IP system which preferences competition and an evidence-base. The paper also considers the extent to which data are available which allow the true price of such agreements to be monitored.
Metadata only
The promise to the public: generic competition. Submission to the pharmaceutical patents review
(Social Science Research Network (SSRN)) Moir, Hazel V J
Governments have agreed time-limited monopolies to encourage domestic invention through the grant of patents. At the end of the agreed period, the patented invention should be reproducible by skilled persons without undue experimentation and the new knowledge embodied in the invention should be freely available and usable by all. This paper presents evidence on delays to the entry of generic pharmaceuticals in Australia, then considers (briefly) the arguments put by "big pharma" in support of a range of regulatory interventions that contribute to these delays. It then considers the key patent and health policy issues delaying competition. The regulatory environment is then assessed from the perspective of achieving a supportive policy environment for timely entry of competition at the expiry of the agreed patent monopoly period.
Open Access
Promoting cleaner production in South East Asia: a case study of the DTI/BOI Environmental Unit
(Australian Centre for Environmental Law, Faculty of Law, The Australian National University, 2001) Sinclair, Darren; Gunningham, Neil
This article reviews the role of the Philippine Department of Trade and Industry/Board of Investment's Environmental Unit in promoting the adoption of cleaner production technologies and practices by Philippine industry. The activities of the Environmental Unit represent a significant shift in policy away from traditional regulatory approaches towards a cooperative, partnership approach to environmental improvement. It remains to be seen, however, whether the considerable ambitions of the Environmental Unit can be matched by the implementation of effective policy instruments. This article examines existing approaches adopted by the Environmental Unit, and uses this as a basis for proposing an expanded role. The focus is on identifying strategies which mesh with overriding policy parameters of the Department of Trade/Board of Investment, such as the desire for alternatives to conventional regulation, the requirement to promote economic growth in tandem with environmental improvement and the need to avoid large drains on the public purse. The lessons drawn have a much broader application and resonate with the challenges faced by a wide variety of agencies in developing countries in the region.
Open Access
Protecting whales by hue and cry – is there a role for non-state actors in the enforcement of international law?
(Canberra, ACT: College of Law, The Australian National University, 2010) Anton, Donald
The 2009/10 whaling season in the Southern Ocean witnessed a dramatic escalation in the clashes between the Japanese whaling fleet and the Sea Shepherd Conservation Society. In January a collision between the Sea Shepherd’s Ady Gil and the Japanese whaler Shonan Maru No. 2 resulted in the sinking of the Ady Gil. Then in February the skipper of the Ady Gil, Pete Bethune, boarded the Shonan Maru No. 2 to effect a ‘citizen’s arrest’ of its Master whilst also presenting a demand for compensation. This paper considers the place, if any, for the sort of hue and cry enforcement of international law envisioned by Sea Shepherd.
Open Access
Reforming the law of environmental standing and third party appeal rights in Victoria
(2000) Anton, Donald
Introduction: This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate. First, during the recent election strong commitments were made “to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government”. In the environmental context, it was emphasised that “[u]nderpinning Labor’s approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny”. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met. Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd.1 The High Court held that open standing provisions are beyond any doubt constitutional. More importantly, however, in Truth About Motorways the High Court emphasized that open standing provisions serve salutary public interest purposes in contemporary administrative circumstances. Accordingly, it seems advisable in such circumstances to seriously the adequacy of the current standing and third party appeal arrangements in Victoria. The need for such a review becomes even more apparent when one discovers, as discussed below, that except in two important but limited circumstances, open standing and third party appeal rights in Victorian environmental law are lacking. This memorandum proceeds as follows. It first highlights current opportunities for the reform of Victorian environmental law to provide for open standing and third party appeal rights. It next turns its attention to contemporary international norms that reflect the considered view of the international community about the importance of public participation, including by use of the courts, in the environmental field. It then considers the pros and cons of reforming the law to provide for open standing and third party appeal rights. This memorandum also includes a detailed Appendix which sets out statutory provisions across Australia, and internationally, that provide both unqualified and qualified open standing to members of the public to enforce environmental law. The Appendix also contains a large number of examples of Australian statutes that provide third party appeal rights in connection with administrative environmental decisionmaking.
Open Access
Submission on Australia's relationship with the World Trade Organisation (WTO)
(Canberra, ACT: Australian Centre for Environmental Law (ACEL), College of Law, The Australian National University, 2000) Anton, Donald
In March 1999, the Department of Foreign Affairs and Trade ("DFAT") sought public input in formulating Australia's approach to negotiations in connection with the third World Trade Organisation ("WTO") Ministerial Conference to be held in Seattle in November and December 1999. The call for public submissions suggested a number of important issues and areas for consideration. Disturbingly, however, DFAT did not deem the relationship between environmental protection and international trade important enough to mention specifically. Perhaps, though, this was not so surprising at the time. A press release from the WTO about the Ministerial Conference omitted any reference to the environment. Moreover, Member States of the WTO did not seem any more predisposed to consider the issue in Seattle. Of the 90 plus communications received by the WTO General Council from various states on the upcoming ministerial conference, only Switzerland and Norway raised the possible inclusion of the issue of the relationship of trade and environment for discussion. Such a state of affairs made the much touted March 1999 High-Level Symposium on Trade and Environment held under the auspices of the WTO appear to have been merely lip service. This appearance of empty rhetoric was a paramount concern of legitimate protestors in Seattle. Clearly, states should be doing more to address the longstanding tensions that exist between rigid trade rules and disciplines, and effective environmental protection. Indeed, Australia should be doing more. This article looks at one key item - the relationship between trade rules and multilateral environmental agreements ("MEAs") - that ought to be a high priority at the 3rd WTO Ministerial Conference. It is an item that has languished over the past 5 years and an item that should be driven by the Australian delegation.

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