Publications

Burn, JM & Rubenstein, K 2004, 'Australian Immigration law and Policy', in Immigration and Social Transformation in Catalonia, Fundacion BBVA, Barcelona.

Crawford, J & Opeskin, B 2004, Australian Courts of Law, 4th, Oxford University Press, Melbourne.

McKeough, J, Griffith, PB & Stewart, A 2004, Intellectual Property in Australia, Third, Lexis Nexis Butterworths.

McKeough, J, Stewart, A & Griffith, PB 2004, Intellectual Property in Australia, Lexis Nexis Butterworths, Australia.

McKeough, J, Stewart, A & Griffith, PB 2004, Intellectual Property in Australia, 3rd, Butterworths, Chatswood, Australia.

Karpin, I & Oconnell, K 2004, 'Speaking into a silence: Embedded constitutionalism, the Australian constitution, and the rights of women' in The Gender of Constitutional Jurisprudence, pp. 22-47.
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© Cambridge University Press 2005 and 2010. The Australian Constitution is a document that is mostly silent about rights. It has no comprehensive set of enumerated rights in the form of a bill of rights. Instead, it sets up a federal system and the basic framework of a representative democracy, with a few specific rights scattered throughout. Federal and state legislation provide the express means of protection of equality. Yet, the Constitution is a crucial part of the framework for understanding women's rights in Australia. Not only does it provide the source of federal legislative power with respect to equality but also, in recent years, a minority view on the High Court has asserted that equality is the underlying principle upon which the Constitution is founded. In this chapter, we explore the way that the Australian Constitution, without an explicit set of enumerated rights, can and should be used to establish and protect women's rights in practice. We consider how women have shaped the Australian Constitution both in its creation and throughout its development to the present day and argue that the federal system reinforces the traditional division of public and private life to the detriment of women. Looking at the formal mechanisms that exist for pursuing equality and antidiscrimination claims in Australia with reference to international covenants, domestic, federal, and state legislation, we show that Australian constitutional rights are embedded into a larger institutional, bureaucratic, and cultural framework.

Karpin, I & O'Connell, K 2004, 'Speaking into a Silence: Embedded Constitutionalism, the Australian Constitution, and the Rights of Women' in Beverley, BAINES (ed), The Gender of Constitutional Jurisprudence, Cambridge University Press, New York, USA, pp. 22-47.
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Stoianoff, NP 2004, 'An International Perspective on the Implementation of the Biodiversity Treaty and Access to Biological Resources' in Natalie Stoianoff (ed), Accessing Biological Resources: Complying with the Convention for Biological Diversity, Kluwer Law International, The Hague, Netherlands, pp. 33-54.
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Stoianoff, NP 2004, 'Biological Resources and Benefit Sharing: The Intersection Between Traditional Knowledge and Intellectual Property' in Verma, PSK & Mittal, R (eds), Intellectual Property Rights a Global Vision, The Indian Law Institute, New Delhi, pp. 37-48.

Stoianoff, NP & Fox, T 2004, 'Managing Access to Australia's Biological Resources: Issues in Developing a National Approach' in Natalie Stoianoff (ed), Accessing Biological Resources: Complying with the Convention for Biological Diversity, Kluwer Law International, The Hague, Netherlands, pp. 91-114.

Anthony, T 2004, 'Labour Relations on Northern Cattle Stations: Feudal Exploitation and Accommodation', The Drawing Board: An Australian Review of Public Affairs, vol. 4, no. 3, pp. 117-136.

Barker, DL 2004, 'The Character and Recognition of Legal Research in Australia', Penn State International, vol. 22, no. 3, pp. 441-454.

Berg, LA 2004, 'Abu Graib - International Legal Standards Pertaining to torture and Degrading and Inhumane Treatment', Human Rights Defender, vol. 13, pp. 24-24.

Beumont, P & Carney, T 2004, 'Can psychiatric terminology be translated into legal regulation? The anorexia nervosa example', Australian and New Zealand Journal of Psychiatry, vol. 38, no. 10, pp. 819-829.
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Objective: To explore the tension between the definition of mental illness in clinical psychiatry and its embodiment in legislation applied by tribunals reviewing decisions to treat. Method: Severe anorexia nervosa is used as a case exemplar of the tension between the appropriate narrative to express the clinical imperative to treat and the law's focus on finer technical language which secures individual civil rights and liberties. Australian and international experience is reviewed. Results: The paper finds that the clinical and the legal narratives about how to 'define' mental illness do differ at the formal level of expression where they necessarily intersect in the setting of tribunal review of involuntary treatment decisions. However, in practice mental health admissions and tribunal reviews generally endorse the clinical applications of that more capacious and fluid terminology of clinical psychiatry. Conclusions: While tribunal reviews of clinical decisions may occasionally require clinicians to participate in an unfamiliar legal dialogue about narrowly construed definitions of mental illness, tribunals apply more complex tests which are sensitive to clinical practice and good therapeutic objectives.

Beumont, P, Beumont, P, Carney, T, Beumont, P & Carney, T 2004, 'Can Psychiatric Terminology be Translated into Legal Regulation? The Anorexia Nervosa Example', Australian & New Zealand Journal of Psychiatry, vol. 38, no. 10, pp. 819-829.
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Objective: To explore the tension between the definition of mental illness in clinical psychiatry and its embodiment in legislation applied by tribunals reviewing decisions to treat. Method: Severe anorexia nervosa is used as a case exemplar of the tension between the appropriate narrative to express the clinical imperative to treat and the law's focus on finer technical language which secures individual civil rights and liberties. Australian and international experience is reviewed. Results: The paper finds that the clinical and the legal narratives about how to ‘define’ mental illness do differ at the formal level of expression where they necessarily intersect in the setting of tribunal review of involuntary treatment decisions. However, in practice mental health admissions and tribunal reviews generally endorse the clinical applications of that more capacious and fluid terminology of clinical psychiatry. Conclusions: While tribunal reviews of clinical decisions may occasionally require clinicians to participate in an unfamiliar legal dialogue about narrowly construed definitions of mental illness, tribunals apply more complex tests which are sensitive to clinical practice and good therapeutic objectives.

Booth, T 2004, 'Homicide, family victims and sentencing: continuing the debate about Victim Impact Statements', Current Issues in Criminal Justice, vol. 15, no. 3, pp. 253-257.

Booth, T 2004, 'Homicide, family victims and sentencing: continuing the debate about Victim Impact Statements', Current Issues in Criminal Justice, vol. 15, no. 3, pp. 253-257.

Booth, T 2004, 'Key Elements to Writing a Good Essay', Surviving Law School: A Guide to the Study of Law, vol. None, pp. 13-14.

Booth, T 2004, 'Student pro bono: Developing a Public Service Ethos in the Contemporary Australian Law School', The Alternative Law Journal, vol. 29, no. 6, pp. 280-284.
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IIn 2001 the National Pro Bono Task Force ('the Task Force') found .that although the legal profession makes a signi.ficant contribution to the community through its pro bono work, a high level of unmet demand for legal as~stance remains.' The objective of the Task Force was to increase the number of lawyers offering pro bono services in areas where there is the greatest need. The Task Force recommended that action be taken to actively promote 'a strong pro bono cutture in Australia'2 and. to this end, that law students be given opportunities to participate in intemships outreach programs with a pro bono focus

Di Giglio, S 2004, 'Regional Migration: Theories, Effectiveness and Practice', Immigration Review, vol. 22.

Goldblatt, B & Liebenberg, S 2004, 'Giving Money to Children: The State’s Constitutional Obligations to Provide Child Support Grants to Child Headed Households', South African Journal on Human Rights, vol. 20, no. 1, pp. 151-164.
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Greenleaf, GW, Mowbray, AS & Chung, PT 2004, 'A New Home for Commonwealth Law: A Proposal for CommonLII', Journal of Information Law and Technology, vol. 2004, no. 2, pp. 1-27.
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Eminent jurists have called for the development of a genuinely international common law which is more of a ‘two way street’ than in the past. This paper examines the contribution that access to law via the Internet can make to realizing that goal. The World Legal Information Institute (WorldLII) is the largest free access source of legal information available on the Internet, providing access to over 400 databases of case law, legislation, treaties, law reform and law journals. This paper describes WorldLII's origins and operation as a cooperative venture of Legal Information Institutes (LIIs) from many countries, and outlines the advantages of the system.

Hitchens, LP 2004, 'Commercial Broadcasting - Preserving the Public Interest', Federal Law Review, vol. 32, no. 1, pp. 79-106.
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During 1999 and 2000 considerable attention was focused on an inquiry conducted by the broadcasting regulator, the Australian Broadcasting Authority ('ABA'), into the commercial arrangements of a number of commercial radio presenters associated with talkback radio. In May 1999, an Australian Broadcasting Corporation ('ABC') program, Media Watch, alleged that, John Laws, a presenter with Sydney Radio Station 2UE, had financial arrangements in place with an organisation representing the major Australian banks, the Australian Bankers' Association. It was alleged that the effect of these arrangements was that Laws would broadcast positive comments about the banks. These comments were independent of any paid advertising run by the station for the banks or the Bankers' Association. Following the Media Watch revelations, the ABA announced that it would conduct an inquiry1 into the allegations in order to determine whether there had been any breach of the Broadcasting Services Act 1992 (Cth) ('BSA') or the licence conditions or codes of practice to which Radio 2UE was subject. Following further allegations, the ABA, between July 1999 and November 1999, extended its inquiry to cover another 2UE presenter, Alan Jones,2 and presenters from four other radio stations: 6PR Perth, 5AD (also known as 5ADD) Adelaide, 5DN Adelaide and 3AW Melbourne

Hitchens, LP 2004, 'The Role of Sponsorship Regulation in Non-commercial Broadcasting', Entertainment Law Review, vol. 15, no. 2, pp. 33-41.
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Programme sponsorship is V!ell known as a form of revenue-raising for broadcasters. Whilstseen as a form of advertising, it is aiso generally regarded as distinct from advertising. This distinction was described in the Report of the Peacock Committee which investigated financing of the BBC: 'Sponsorship is a form of advertising limited to a'statement in a particular programme that it is being financed by a particular organisation. The form of that statement would normally exclude an-intrusive 'commercial' of a 'spot' character'. Advertising is usually viewed as something '... which is designed or calculated to draw public attention to a product or to promote its use ... '.2 Thus, sponsorship through the identification of the sponsor and, possibly, products or services, has the potential, even if limited, for promotion, but at the same time, it will usually lack the vivid impact associated with spot advertising.

Landrigan, M 2004, 'Bundling — A Telecommunications Perspective'.

Landrigan, M & Ergas, H 2004, 'Not another article about section 46 of the Trade Practices Act!', Australian Business Law Review, vol. 32, no. 6, pp. 415-435.

Leary, DK 2004, 'Bioprospecting and the Genetic Resources of Hydrothermal Vents on the High Seas: What is the Existing Legal Position, Where are we Heading and What are our Options?', Macquarie Journal of International and Comparative Environmental Law, vol. 1, no. 2, pp. 137-178.

Lee, K 2004, 'Farmers: What Do You Own? Are Environmental Regulations Changing the Nature of Land Rights?', On Farming and Environmental Rules and on Agricultural Supply Chains, AgLaw Papers, pp. 7-37.

Lenta, P 2004, 'Judicial Restraint and Overreach', South African Journal on Human Rights, vol. 20, pp. 544-576.

Lenta, P 2004, 'The Tikoloshe and the Reasonable Man: Transgressing South African Legal Fictions', Law & Literature, vol. 16, pp. 353-379.

Libesman, T 2004, 'Child Welfare Approaches for Indigenous Communities: International Perspectives', Child Abuse Prevention Issues, vol. N.A, no. 20, pp. 1-39.

Libesman, T 2004, 'Towards an Inclusive Early Childhood Agenda', Balayi, vol. 6, pp. 62-71.

Lin, Y & Stoianoff, NP 2004, 'Foreign Investment in China: The Cross Cultural Dilemma', Macquarie Journal of Business Law, vol. 1, pp. 1-21.
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Geographically, the Peoples Republic of China (PRC) is the worlds largest market, with a population of 1.3 billion people and an area about 9,600,000 square kilometres in the southeastern Eurasian continent. Since the `open door policy commenced in late 1978 China has been quite successful in attracting foreign direct investment (FDI) as a new economic power. Chinas need for capital, raw materials, high technology, and modern management skills has opened a range of opportunities for foreign investors. According to a world-renowned consulting company A T Kearney, the result from FDI Confidence Index Monday

Lo, SH, Dobinson, IR & Wing, C 2004, 'Sentencing for Drug Offences in Hong Kong: An Overview', Hong Kong Law Journal, vol. 34, no. 1, pp. 13-45.

Millbank, J 2004, 'It's about This: Lesbians, prison, desire', SOCIAL & LEGAL STUDIES, vol. 13, no. 2, pp. 155-190.
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This article explores three narratives of violently transgressive lesbians in a prison setting. The stones are two English novels, Nights at the Circus by Angela Carter (1985), Affinity by Sarah Waters (1999) and an English TV series, Bad Girls (1999-ongoing). A number of disruptive and counter-hegemonic aspects run through these stories including their portrayal of violence as a reasonable response to oppressive social conditions, a distinct problematizing of heterosexuality and the metaphor of a prison panopticon to explore the constraints imposed on all women's lives. The article argues that the representation of lesbian desire in all three tales is truly radical in that it acts to dissolve unequal power dyads, although it also comes to question the extent to which it is possible, even in fiction, to sustain such rupture in the face of dominant cultural imperatives to 're-capture' and 'domesticate' homo-normative images.

Millbank, J 2004, 'The Role of Rights in Asylum Claims Based on Sexual Orientation', Human Rights Law Review Human Rights Law Review, vol. 4, no. 2, pp. 193-228.
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It is now widely accepted that lesbians, gay men and transgendered people may make refugee claims on the grounds of their membership of the 'particular social group' category of the Refugee Convention. Claims to protection made by lesbians and gay men based on sexual orientation extend the outsider nature of the refugee claim and its relationship to human rights. To claim 'core' human rights for lesbians and gay men is paradoxical given the marginality of sexual minorities in human rights jurisprudence to date. Sexual orientation has only very recently been acknowledged as a valid loci of human rights in international law and is typically still far from widely accepted as the basis for equality claims in many refugee receiving nations. This paper does not propose that Constitutional equality guarantees are a panacea for discrimination on the basis of sexuality (or indeed on any other basis). Nor do I argue that there is necessarily a direct and demonstrable impact upon refugee decision-making in the countries under discussion. Rather, I suggest that a greater familiarity with lesbian and gay claims across a range of areas in tandem with a deeper and longer standing engagement with equality analysis has meant that Canadian decision-makers, unlike those in Australia and especially those in the UK, have been more ready to connect sexual orientation claims with human rights norms. This, in turn, has had a pervasive impact upon what decision-makers are prepared to construe as persecutory in sexuality based claims.

Millbank, J & Lovric, J 2004, 'Relationship Debt and Guarantees: Best Practice v Real Practice', Journal of Banking and Finance Law and Practice, vol. 15, no. 2, pp. 89-115.
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Guarantee transactions have generated an enormous volume of litigation over the past 20 years in Australia and elsewhere. There have been numerous major reports referring to the problem of relationship debt in recent years as concern about guarantee transactions has grown. This article outlines the major findings of the first comprehensive Australian empirical research into the law and practices governing third party guarantees. The research was directed to finding out more about the experiences of the people who agree to guarantee the loans of others. Why do they sign on, how do they get into trouble in those transactions and what might have assisted them in avoiding such difficulties? Despite measures such as the Consumer Credit Code (1996) and the Code of Banking Practice (1993)(2003) , guarantee practice shows little evidence of what either the finance industry or consumer advocates would regard as best, or even adequate, practice.

Riley, J 2004, 'A cautionary tale for employee advocates: Bredel v Moore Business Systems Ltd', Commercial Law Quarterly, vol. 18, no. 1, pp. 3-11.

Riley, J 2004, 'Book review: Harry Glasbeek, Wealth by Stealth', Sydney Law Review, vol. 26, pp. 456-458.

Riley, J 2004, 'Family friendly work practices and the law', Sydney Law Review, vol. 26, no. 3, pp. 395-426.

Riley, J 2004, 'Industrial Legislation in 2003', Journal of Industrial Relations, vol. 46, no. 2, pp. 184-194.
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Despite the promise of cataclysmic change, 2003 saw very few, and very moderate reforms to industrial laws. The great debates—about a unitary industrial relations system, greater legal discipline for the building and construction industry, paid maternity leave, compulsory individual contracts in the higher education sector—left no lasting footprints in 2003. The most significant reform, achieved at the very end of the year, was the enactment of more safety net protection for Victorian workers. Otherwise, legislative change represented small incremental steps. This review notes the highlights from the year’s debates, and explains the changes that were actually introduced.

Sheldon, S 2004, 'Gender Equality and Reproductive Decision-Making', Feminist Legal Studies, vol. 12, no. 3, pp. 303-316.
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Sheldon, S 2004, 'Hashmi and Whitaker: An Unjustifiable and Misguided Distinction?', Medical Law Review, vol. 12, no. 2, pp. 137-163.
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Sheldon, S 2004, 'Should selecting saviour siblings be banned?', Journal of Medical Ethics, vol. 30, no. 6, pp. 533-537.
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Stuhmcke, A 2004, 'Looking backwards, looking forwards: judicial and legislative trends in the regulation of surrogate motherhood in the UK and Australia.', Aust J Fam Law, vol. 18, no. 1, pp. 13-40.
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It has been a quarter of a century since the first reported decision was handed down with respect to surrogate motherhood by a common law court. Since that initial decision Australian jurisdictions and the United Kingdom have seen a plethora of parliamentary inquiries, legislation and case law. This article reviews these historical legal developments in case law and legislation in both Australia and the UK to identify what, if any, trends are occurring in the regulation of surrogacy. It is suggested from this review that there is a trend towards recognising and allowing altruistic surrogacy. This raises issues of practical and theoretical importance in relation to the definition of family and the regulation of surrogacy.

Stuhmcke, AG 2004, 'Privatisation and Corporatisation: What now for the Commonwealth Ombudsman ?', Australian Journal of Administrative Law, vol. 11, no. 2, pp. 101-114.

Tian (George), Y 2004, 'Business implications of anti-circumvention legislation and recommendations', Computer Law & Security Review, vol. 20, no. 6, pp. 445-452.
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This article will introduce and compare the anti-circumvention provisions in both the WIPO Internet Treaties and the US Digital Millennium Copyright Act (DMCA). Then, it will explore the major problems of the DMCA anti-circumvention provisions and their negative impacts for computer security professionals (such as financial cryptographers, and researchers of the cryptology community), new copyright creators and public users, by referring to some recent cases and examples. Finally, it will offer specific suggestions for the reform of the US anti-circumvention legislation. It will argue for establishing broad exemptions for anti-circumvention rules, and strengthening the controls on technological measures in order to strike fair balance of benefits for all interested parties (copyright holders, computer security researchers, new creators, and public users) in anti-circumvention legislation.

Tian, Y 2004, 'WIPO Treaties, Free Trade Agreement and Implications for ISP Safe Harbour Provisions - The Role of ISP in Australian Copyright Law', Bond Law Review, vol. 16, no. 1, pp. 186-217.
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In order to apply the regulatory provisions of the Berne Convention to the new digital environment,l the World Intellectual Property Organization (WIPO) adopted two related treaties, the WIPO Copyright Treaty (WeT), and the WIPO Performances and Phonograms Treaty (WPPT) in Geneva in December, 1996. They are often referred to as the 'WIPO Internet Treaties'.

Wangmann, JM 2004, 'Liability for Institutional Child Sexual Assault: Where does Lepore Leave Australia?', Melbourne University Law Review, vol. 28, no. 1, pp. 169-202.

Barker, DL 1970, 'The Continuing Saga: A Comparitive Study of Developments in Legal Education in both England and Wales and Australia over the last 30 years', Australian Law Teachers Association Conference, Darwin.

Booth, T & Fitzpatrick, S 1970, 'A New Law School: The Challenges of Amalgamation', Crossing Boundaries, ALTA, Darwin.

Dorsett, SG 1970, 'An Australian Comparison on Native Title to the Foreshore and Seabed', Wellington.

Stoianoff, NP & Kaidonis, MA 1970, 'The Tax Treatment of Mining Site Rehabilitation: Evaluating 10 Years of Reform', 16th Australasian Tax Teachers Association Conference, Tax Reform: Fairer, Efficient, Simple Tax?, Adelaide, South Australia.

Stoianoff, NP, Bernstein, B & Mohannak, K 1970, 'Institutional Linkages and Commercialisation in Australian Biotechnology Industry: A Case Study of NSW Cluster', 18th Annual Conference of the Australian & New Zealand Academy of Management (ANZAM), University of Otago, Dunedin, New Zealand.

Stuhmcke, AG 1970, 'Using Foetal tissue for reseacrh: issues of regulation, property and identity', Macquarie University.

Tian, Y 1970, 'Free Trade Agreement and the Role of ISP in Australian Copyright Law', Sixth Annual Postgraduate Conference: Deconstructing and Reconstructing Legal Paradigm, Sydney, Australia.

Tian, Y 1970, 'International Comparison: ISP Safe Harbour Legislation & FTA - Australia as a Case Study', Colloquium on Cyberspace Law & E-commerce Law, Institute of Intellectual Property Law, China University of Political Science and Law (CUPL), Beijing, China.

Varnham, S 1970, 'Physical, Emotional and Cultural Safety of New Zealand Schools' an exploration of legal issues', World Conference on the Right to and Rights in Education, World Conference on the Right to and Rights in Education, Wolf Legal Publishers, Amsterdam, Tilburg, the Hague.

Lenta, P 2004, 'History and Illusion in Politics', JSTOR.