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Professor Anita Stuhmcke

Biography

Professor Anita Stuhmcke joined the Law Faculty in 1996. Prior to this, she lectured at the University of Western Sydney and worked as a solicitor for the law firm Freehill, Hollingdale and Page (as it then was). Anita completed a BA/LLB at Macquarie University and graduated first in her year from her undergraduate law degree. She then went on to complete a masters of Jurisprudence with Honours from the University of Sydney. Anita completed her PhD at the Australian National University – her thesis titled ‘An Empirical Study of the Systemic Investigations Function of the Commonwealth Ombudsman From 1977-2005’. The thesis develops an original methodology to explore the relationship between the dual roles of system-fixer and individual complaint-handler performed by the Commonwealth Ombudsman. This empirical research provides insight into the operation of the Ombudsman institution as an instrument of democratic accountability and allows for assessment of the operation and effectiveness of the Commonwealth Ombudsman in terms of the citizen, government agencies and the wider legal system.

A critical concern of Professor Anita Stuhmcke’s research is to conceptualise the ways in which law operates as a continuum of effectiveness, the central premise being that black letter law is just one regulatory option available to policy makers. Consequently her scholarship straddles areas of social change which explore social exclusion and public access to services, such as the transition between being a citizen to consumer in public law; the impact of legislation on tort law and the ongoing issue of accessing reproductive services – especially with respect to surrogacy.

Information on one of my current research projects which investigates the pathways that lead Australian patients to utilise cross border reproductive care can be found at:

Image of Anita Stuhmcke
Professor of Law, Faculty of Law
BA (Macquarie), LLB (Hons) (Macquarie), MJuris (Hons) (Syd), PhD (ANU)
 
Phone
+61 2 9514 9658

Research Interests

My dominant interest is the ability and limitations of law to relate to social change. My philosophy of research is that research and scholarship does not exist in isolation from the developments in society but rather, that it is both a result of and an impetus for social change. A critical concern of my research is to conceptualise the ways in which law operates as a continuum of effectiveness, the central premise being that black letter law is just one regulatory option available to policy makers. Consequently my scholarship straddles areas of social change where I explore social exclusion and public access to services in two areas:

(1) the transition between being a citizen to consumer in public law - in particular with respect to ombudsman; and

(2) the ongoing issue of accessing reproductive services - in particular in relation to surrogacy.

I am currently involved in a major research project in the area of reproductive technology:

  • ARC Discovery Grant, "Regulating Relations: Forming Families Inside and Outside Law's Reach" 2015-2019 (with Jenni Millbank and Isabel Karpin). For further information on this research, visit: www.regulatingrelations.com
Can supervise: Yes
Available for undergraduate, postgraduate coursework and higher degree research supervision in: • Ombudsman • Access to reproductive technology

  • Torts
  • Biomedical Law and Bioethics

Books

Stewart, P.E. & Stuhmcke, A.G. 2012, Australian Principles of Tort Law, 3rd, Federation Press, Sydney.
Stuhmcke, A.G. 2012, Australian Principles of Tort Law, 3rd, Federation Press, Sydney.
Stuhmcke, A.G. 2012, Legal Referencing, 4th, LexisNexis, Sydney.
Stuhmcke, A.G. 2010, Essential Tort Law, 4th, Zortonomy, Sydney.
Stewart, P.E. & Stuhmcke, A.G. 2009, Australian Principles of Tort Law, 2, The Federation Press, Sydney, Australia.
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Legislative reform has recently transformed the law of torts in Australia. It is no longer a body of unified common law but is an area governed by a diverse array of non-uniform statutes in each Australian jurisdiction. This textbook is one of the first to provide both commentary and critical analysis of this tort law reform legislation. It provides a fresh interpretation of historical events and analyses the new challenges and developments facing the law of torts in the twenty first century. Offering ideas and perspectives on the law of torts, it assists all those wishing to traverse this fascinating area of law. Nevertheless the work is written with the aim of making tort law accessible to students new to the field and provides a foundation for ongoing engagement in the area. Essential reading for all those seeking guidance on the tort law reform legislation, this text makes a valuable contribution to scholarship in the field, while its clear and comprehensive style make it a reliable and interesting textbook for law students.
Stewart, P.E. & Stuhmcke, A.G. 2005, Australian Principles of Torts, 1, Cavendish Publishing Limited, Sydney, Australia.
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Stuhmcke, A.G. 2005, Legal Referencing, Third, LexisNexis Butterworths, Australia.
Stuhmcke, A.G. 2005, Essential Tort Law, Third, Cavendish, Sydney.
Stuhmcke, A.G. 2001, Essential Tort Law, Second, Cavendish, Sydney.
Stuhmcke, A.G. 2001, Legal Referencing, 2nd, Butterworths, Sydney.
Stuhmcke, A.G. 1998, Legal Referencing, 1st, Butterworths, Sydney.
Stuhmcke, A.G. 1997, Essential Tort Law, 1st, Cavendish, Australia.

Chapters

Stuhmcke, A.G. & Stewart, P. 2017, 'The 'Child' In Utero and Ex Utero' in young, L., Kenny, M. & Monahan, G. (eds), Children and the Law in Australia, Lexis Nexis, Sydney, pp. 55-82.
Stuhmcke, A.G., Olliffe, B. & Evers, M. 2015, 'Resolution of Student Grievances Within Universities' in Varnham, S., Kamvounias, P. & Squelch, J. (eds), Higher Education and the Law, The Federation Press, Leichhardt, pp. 114-124.
This book is the first in Australia dedicated to the legal environment of our universities. The law both drives and governs the evolution of Australia's strong and vibrant system of higher education. Here, experts explore a wide range of areas of topical and salient interest, providing a comprehensive resource for those both within and outside the sector, including managers, governors, academics, legal practitioners and all who have an interest in the impact of the law on its operations. While their primary function today remains the provision of higher education and research, Australia's universities are now large commercial global corporations. Their operations involve the management of a diverse range of relationships, both internal and external, and the law plays a central role in these. Higher Education and the Law first considers the legal framework of the higher education sector and the relationships universities have externally, particularly with government – their governance, their funding and accountability, and their maintenance of high standards and quality. It then traverses many of the areas where the law has a significant impact on the relationships universities have with their students and their staff. In a clear and readable style, the book covers matters from anti-discrimination and equal opportunity, transparency and due process in decision-making, employment and student matters, to property rights such as copyright and ownership of intellectual property. It focuses on those issues of the most practical relevance to today's higher education environment.
Stuhmcke, A.G. 2015, 'New wine in old bottles and old wine in new bottles: The judicial response to international commercial surrogacy in the UK and Australia' in Horsey, K. (ed), Revisiting the Regulation of Human Fertilisation and Embryology, Routledge, Oxon, pp. 200-215.
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This book critically evaluates the recent developments in human fertilisation legislation, asking whether the 2008 Act has achieved its stated aim of being fit for purpose.
Stuhmcke, A.G. 2015, 'Extra-Territoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty' in Gerber, P. & O'Byrne, K. (eds), Surrogacy, Law and Human Rights, Ashgate Publishing, Ltd., England, pp. 65-80.
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This book examines the effect on domestic and international law, and on human rights law and theory, of the impact of the sharp increase in the use of surrogacy.
Stuhmcke, A.G. 2014, 'The Ombudsman' in Matthew Groves (ed), Modern Administrative Law In Australia, Cambridge University Press, New York, pp. 326-347.
Stuhmcke, A.G. 2014, 'JM v QFG and GK [1998] QCA 228: Judgment' in Douglas, H., Bartlett, F., Luker, T. & Hunter, R. (eds), Australian Feminist Judgments: Righting and Rewriting Law, Hart, Oregon, pp. 397-404.
Stuhmcke, A.G. 2011, 'The evolution of the classical ombudsman: a view from the antipodes' in Kierkegaard Sylvia (ed), Law Across Nations: Governance, Policy & Statutes, International Association of IT Lawyers, pp. 589-601.
Stewart, P.E. & Stuhmcke, A.G. 2008, 'The Child in Utero and Ex Utero' in Monahan, G. & Young, L. (eds), Children and the Law in Australia, LexisNexis Butterworths, Butterworth-Heinemann, pp. 54-82.
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Stuhmcke, A.G. 2008, 'Ombudsmen and Integrity Review' in Pearson, L., Harlow, C. & Taggart, M. (eds), Administrative Law in a Changing State, Hart Publishing, Oxford, UK, pp. 349-376.
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Stuhmcke, A.G. 2003, 'Human Reproductive Technology' in Halsburys Laws of Australia, Lexis Nexis, Sydney Australia, pp. 743-780.

Conferences

Stuhmcke, A.G. 2014, 'Undefined and Under Valued: The Systemic Role of the Classical Ombudsman Institution', 3rd Annual International Conference Proceedings, Law, Regulations and Public Policy, Global Science & Technology Forum, Bangkok, pp. 48-54.
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The classical ombudsman institution may have two roles – proactive system fixer and reactive individual complaint taker. It is generally assumed that these dual roles are related in that improvements produced by one role will impact upon the other. Here it is most often implied in public law literature, that the correction by an ombudsman of a systemic administrative deficiency through its systemic function will reduce numbers of individual complaints. Using empirical data based upon a 'snapshot in time' study of the Australian Commonwealth Ombudsman this article argues that this traditional assumptions as to the relationship between the two roles is flawed. The findings of the study presented in this article will impact upon the operation of the ombudsman institution and provide insight into ways in which the role and performance of such a growing international integrity review body may be strengthened.
Varnham, S., Stuhmcke, A.G., Olliffe, B.M., Kamvounias, P. & Evers, M. 2013, 'Different Country, different hemisphere - same challenges: the student and the Australian University', Annual Conference of ENOHE/OIAHE, St Catherine's College, Oxford, UK.
Invited panel
Stuhmcke, A.G. 2011, 'The Evolution of the Classical Ombudsman: A View from the Antipodes', Law Across Nations: Governance, Policy & Statutes, IAITL, Cyprus, pp. 589-601.
Stuhmcke, A.G. 2010, 'Ombudsman Research', Australasian and Pacific Ombudsman Region Annual Conference, Canberra.
Stuhmcke, A.G. 2008, 'The tripartite roles of ombudsmen and the need for accountability', Joint Interest Group of Ombudsman/Complaints Handling Agencies, Sydney.
Stuhmcke, A.G. 2006, 'University ombudsman: the need for a national grievance handler', OMDOSHEAA, Armidale.
Stuhmcke, A.G. 2006, 'Complaining hard and complaining often: what now for the future of grievance handling in Australian Universities', OMDOSHEAA 5th Conference, UNE.
Stuhmcke, A.G. 2004, 'Using Foetal tissue for reseacrh: issues of regulation, property and identity', Macquarie University.
Stuhmcke, A.G. 2002, 'Necessary or sufficient: what do we do when there are no rules?', OMDOSHEAA, 3rd Annual Conference, QUT.
Stuhmcke, A.G. 2002, 'The Commonwealth Ombudsman', Public Law, Canberra.
Stuhmcke, A.G. 2002, 'Balancing the scales: achieving diversity in Australian law school admission', International Bar Association, Durban.
Stuhmcke, A.G. 2002, 'Looking Backwards, Looking Forwards: Surrogacy', Australian Institute of Health Law & Ethics, Newcastle.
Stuhmcke, A.G. 2002, 'Necessary or sufficient: what do we do when there are no rules?', Biennial conference of ombuds and deans of students, Brisbane.
Stuhmcke, A.G. 2002, 'Balancing the scales: achieving diversity in Australian law school admission', International Bar Association, South Africa.
Stuhmcke, A.G. 2002, 'The Commonwealth Ombudsman', Executive Power, ANU, Canberra, pp. 161-172.
Stuhmcke, A.G. 2002, 'Looking Backwards, Looking Forwards', Australian Institute of Health, Law and Ethics, Australian Institute of Health, Law and Ethics, Newcastle.
Stuhmcke, A.G. 2001, 'Teaching Biomedical Law and Bioethics', ALTA, Vanuatu.
Stuhmcke, A.G. 2000, 'Role of the Ombudsman in the New Millennium', 1st Annual Conference OMDOSHEAA, UTS.
Stuhmcke, A.G. 1999, 'Access to IVF', In Vitro Fertilisation and Human Reproductive Genetics, Sydney.
Stuhmcke, A.G. 1997, 'The Sydney legal profession and legal education: A survey of the Sydney legal profession in relation to aspects of legal eductaion"', Australasian Law Teachers Association, UTS, Sydney, pp. 1-6.
Stuhmcke, A.G. 1997, 'An Experience in Simulatneous Cross-Institution Course Delivery: Adapting Teaching Methods to Particular Requirements without Compromising Achievements of the Essential Aims', Virtual Law School: a practical reality?, UTS Faculty of Law, UTS, pp. 1-9.
Stuhmcke, A.G. 1996, 'Access to in vitro fertilisation - the politics of sexuality in the discourses of medicine and law', health in difference, Australian Centre for Gay and Lesbian research, Sydney.
Stuhmcke, A.G. 1996, 'Access to in vitro fertilisation - the politics of sexuality in the discourse of medicine and law', health in difference, Australian Centre for Lesbian and Gay Research, Sydney.
Stuhmcke, A.G. 1996, 'Access to in vitro fertilisation', The Politics of Health, The Australian Institute of Health Law & Ethics, Canberra.
Stuhmcke, A.G. 1995, 'Fetal Tissue Transplantation: A Legal and Ethical Conundrum', Australian Law Teachers Association, Australian Law Teachers Association, Hobart.

Journal articles

Millbank, J., Stuhmcke, A. & Karpin, I. 2017, 'Embryo donation and understanding of kinship: the impact of law and policy.', Hum Reprod, vol. 32, no. 1, pp. 133-138.
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STUDY QUESTION: What is the impact of law and policy upon the experience of embryo donation for reproductive use? SUMMARY ANSWER: Access to, and experience of, embryo donation are influenced by a number of external factors including laws that impose embryo storage limits, those that frame counselling and approval requirements and allow for, or mandate, donor identity disclosure. WHAT IS KNOWN ALREADY: To date only three qualitative studies in Australia and New Zealand have been completed on the experience of embryo donation for reproductive purposes, each with a small cohort of interviewees and divergent findings. STUDY DESIGN, SIZE, DURATION: Embryo donors, recipients, and would-be donors were interviewed between July 2010 and July 2012, with three additional interviews between September 2015 and September 2016, on their experiences of embryo donation. The sampling protocol had the advantage of addressing donation practices across multiple clinical sites under distinct legal frameworks. PARTICIPANTS/MATERIALS, SETTINGS, METHODS: Participants were recruited from five Australian jurisdictions and across 11 clinical sites. Twenty-six participants were interviewed, comprising: 11 people who had donated embryos for the reproductive use of others (nine individuals and one couple), six recipients of donated embryos (four individuals and one couple) and nine individuals who had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. In total, participants reported on 15 completed donation experiences; of which nine had resulted in offspring to the knowledge of the donor. MAIN RESULTS AND THE ROLE OF CHANCE: Donors positively desired donation and did not find the decision difficult. Neither donors nor recipients saw the donation process as akin to adoption . The process and practice of donation varied considerably across different jurisdictions and clinical sites. LIMITATIONS, REASONS FOR CAUTION: Because the pool of donors and recipi...
Jackson, E., Millbank, J., Karpin, I. & Stuhmcke, A. 2017, 'Learning from Cross-Border Reproduction.', Med Law Rev, vol. 25, no. 1, pp. 23-46.
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Drawing upon the preliminary findings of an Australian empirical project on cross-border reproduction (CBR), this article argues that regulators and policymakers could learn from the experiences of those who travel overseas in order to access fertility treatment and surrogacy. It makes four principal observations. First, the distinction between so-called 'altruistic' and 'commercial' gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in CBR. Secondly, the status of the law in CBR is profoundly equivocal; for participants it is often there and not there at the same time. Thirdly, self-sourced information, from the internet and more specifically social media such as Facebook, is now the principal source of information and peer support for reproductive travellers. Fourthly, and relatedly, domestic reproductive services providers are often sidestepped. If one of the goals of regulation is to minimise the risk of harm to participants, it is not clear that it is currently achieving this aim, and this article argues that any reforms will only work if they are more responsive to the reality of CBR.
Stuhmcke, A.G. 2017, 'Australian Ombudsmen: Drafting a Blueprint for Reform', Australian Journal of Administrative Law, vol. 24, pp. 43-63.
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The ombudsman institution was introduced across all Australian jurisdictions from the 1970s as a central piece of administrative law reform. The original role of the office was to scrutinise administrative decision making and to promote government accountability through the resolution of citizen complaints. However, since the 1970s all Australian governments have undergone significant change. Government has expanded involvement into areas such as whistle blower and disability protection and human rights. Government also increasingly outsources decision-making to private companies, leading to the introduction of private industry ombudsmen and the removal of control from the purview of administrative law transparency mechanisms. This article argues that this transformation necessitates discussion as to reform of the ombudsman institution and suggests a new blueprint for such reform
Stuhmcke, A., Booth, T. & Wangmann, J. 2016, 'The Illusory Dichotomy of Plagiarism', Assessment and Evaluation in Higher Education, vol. 41, pp. 982-995.
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Plagiarism has been characterised as a 'major problem' for universities. While tensions between students and universities are inevitable, the problem with the existing system of plagiarism management and prevention is that it operates to problematise the relationship between the university and the student rather than address the core academic issues. As a result, a dichotomy is created where the student interest is constructed as adverse to that of the institution. This article argues that de-dichotomization of the current polarity of plagiarism will open space for alternative thoughtful considerations as to dealing with plagiarism positively in an institutional context.
Sibbritt, D., Millbank, J., Stuhmcke, A., Kaye, M., Karpin, I. & Wardle, J. 2016, 'The failure of contemporary law and regulation to keep pace with growing complementary medicine (CM) use: The significance of examining 'hidden' gaps in Australia's current regulatory and legislative infrastructure', Advances in Integrative Medicine, vol. 3, no. 2, pp. 43-44.
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Stuhmcke, A.G. 2016, 'Australian Ombudsmen: A Call to take care', Federal Law Review, vol. 44, no. 3, pp. 531-556.
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Resolution of disputes in Australia is frequently achieved by ombudsmen. Yet there is no uniform model of an ombudsman. Consequently, across Australian jurisdictions, the development of the institution has been ad hoc and fragmented. What has followed, however, has been the transformation of the institution to apply to new contexts, to the extent that it is questionable in some instances as to whether 'ombudsman' remains the appropriate descriptor for the institution. This article explains and critiques these developments, observes that the conditions which have created such change are set to continue and argues that care must be taken to protect citizen trust in the ombudsman brand.
Stuhmcke, A.G. 2015, 'Learning Plagiarism: Law Students Really Must be Special', Journal of the Australasian Law Teachers Association, vol. 8, no. No 1 & 2, pp. 75-94.
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In an earlier volume of this journal I expressed distaste for the growing prevalence of legal educators using rules of citation style to assist in determining whether and when a law student has plagiarised. More particularly, I framed this discussion in terms of a negative view of the over-use of style guides such as the AGLC, warning of the dangers of promoting citation style over an appreciation of academic integrity and good referencing. Rather, I opined the benefit of promoting a desire in law students to see themselves as part of a discipline of law and the motivation to see their work as contributing to the growth of that discipline. Here, in this second piece, I will begin from where the first article left off. I will explore the construction of the 'discipline of law' as it pertains to legal referencing and citation. I note inconsistencies in legal citation rules and identify that there is no such construct as a 'discipline of law' when it comes to legal referencing and citation (indeed we, as legal educators, are often remiss in not passing this fact on to our law students). I consequently argue that overemphasis on citation style by legal educators undermines our desire to produce well-rounded and 'practice ready' law graduates.
Stuhmcke, A.G. 2015, 'The regulation of commercial surrogacy: The wrong answers to the wrong questions', Journal of Law and Medicine, vol. 23, no. 2, pp. 333-345.
The criminal ban on commercial surrogacy across Australian jurisdictions is the result of the conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy 'industry and the second that commercial surrogacy and altruistic surrogacy are two distinguishable 'types of surrogacy arrangements. This article argues that the criminalisation of commercial surrogacy has resulted in unforeseen and undesirable consequences, removing opportunity for evidence-based law reform. Moreover, analysis of both the approach of Australian courts and the operation of surrogacy legislation suggests that the binary regulatory approach which distinguishes 'commercial from 'altruistic surrogacy is a legal fiction. In summary, this article argues that the current Australian regulation of surrogacy is both blunt and ineffectual, surrogacy is a nuanced and complex practice which requires a regulatory response which is principled, holistic and evidence based.
Stewart, P.E. & Stuhmcke, A.G. 2014, 'Lacunae And Litigants: A Study Of Negligence Cases In The High Court Of Australia In The First Decade Of The 21St Century And Beyond', Melbourne University Law Review, vol. 38, no. 1, pp. 151-197.
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This article examines a snapshot in time of appeals in negligence cases to the High Court during the first 11 years of the 21st century. In total, 78 negligence cases decided by the High Court during this period are analysed. Cases granted leave to appeal to the High Court are exceptional, raising novel or difficult issues of law and depend upon an injured plaintiff s practical and financial ability to access legal services. This article analyses the gender and age of litigants, and the accident type in these appeals in order to determine what, if anything, can be learnt about tort litigation patterns. This study found that more men litigated in High Court appeals in the period under study than any other group. When analysed against the background of existing evidence as to: the nature and type of injuries suffered in Australia which require hospitalisation; who is injured; who litigates at first instance; who appeals; and the nature of negligence cases, it becomes clear that adult male plaintiffs appear more often in tort law than women and children due to more men being injured as a group and female and child injuries happening more often in no-fault contexts. The data also indicate that plaintiffs are far less likely to succeed in negligence appeals to the High Court than defendants. It is argued that this emphasis upon personal responsibility in the tort of negligence seems set to continue in light of the statutory tort law reforms which took place across Australia in 2002.
Stuhmcke, A.G. & Stewart, P. 2014, 'High Court Negligence Cases2000–10', The Sydney Law Review, vol. 36, no. 4, pp. 585-618.
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This article reports and analyses the results of a study of High Court negligence decisions from 2000 to 2010. The research establishes that the common law of negligence has been evolving toward the imposition of greater personal responsibility on plaintiffs in most circumstances, but especially in recreational activity cases. Further, the study reveals a substantial level of protection for public authority defendants at common law, challenging the assumptions that underpinned the significant statutory protections that were enacted in Australian jurisdictions from 2002 onwards. The data analysis therefore corroborates previous work of Australian tort law scholars and contradicts the claims made by policymakers at the start of the 21st century about the urgent need for tort law reform. Given that there has not been an empirical study of 21st century High Court negligence decisions to date, the study provides a foundation for future assessment of the effect of Australian tort law reform legislation.
Stuhmcke, A.G. 2014, 'Tick Tock Goes the Clock: Rethinking Policy and Embryo Storage Limits', Feminist Legal Studies, vol. 22, no. 3, pp. 285-306.
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Cryopreservation of human embryos remains, in many jurisdictions, a critical component of the use of the technology of in vitro fertilisation (IVF) in assisted reproduction. However, although the reasons for the freezing of reproductive material— such as cost effectiveness and reducing risks of IVF—are a constant across jurisdictions, the desirable length of storage remains subject to ongoing regulatory debate. Internationally embryo storage limits are variable. This article features data from a recent Australian research project which explores individual attitudes, desires and understandings of law of IVF patients (and their partners) who had or who have embryos in storage. This article uses interviews from the study to argue that storage limits, like any apparently neutral regulatory tool, apply unequally causing unintended physical, mental and emotional harm—particularly to women. This analysis of storage limits exposes the interaction of time, science and law to create, apply and enforce norms and practices of 'natural' embryo storage, suggesting that the imposition of inflexible legislative restrictions upon embryo storage are socially contingent and value laden rather than 'natural' or 'scientific'. This outcome has relevance to wider debates over assisted reproduction policies, suggesting that legal frameworks should adopt more flexibility in application to the patients who use this technology.
Stuhmcke, A.G. & Chandler, E. 2014, 'Storage limits of gametes and embryos: Regulation in search of policy justification', Journal of Law and Medicine, vol. 22, no. 1, pp. 121-135.
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In Australia regulatory limits with respect to the storage of gametes and embryos differ according to both the 'type' of reproductive material and the jurisdiction the material is stored within. This article examines the differences and similarities in storage limits across Australian states, evaluating the reasons for the introduction of storage limits and identifying historical policy change. The article argues that justifications for current storage limits are not clearly articulated and calls for further debate and discussion in this increasingly important area of law.
Stuhmcke, A.G. 2014, 'A Snapshot in Time: The Changing Systemic Role of the Australian Commonwealth Ombudsman', GSTF Journal of Law and Social Sciences, vol. 4, no. 1, pp. 99-108.
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Abstract— The role of the Australian Commonwealth Ombudsman has changed. This change has occurred through operational decision-making rather than through legislative reform. Similarly to many classical ombudsman institutions the Commonwealth Ombudsman has two traditional roles – proactive system fixer and reactive individual complaint handler. Since the office was introduced in Australian in the 1970s. the emphasis placed upon systemic reform has increased. This change is noteworthy as it is generally assumed that these dual roles are related in that improvements produced by one role will impact upon the other. Here it is most often implied in public law literature, that the correction by an ombudsman of a systemic administrative deficiency through its systemic function will reduce numbers of individual complaints. Using empirical data based upon a 'snapshot in time' study of the Australian Commonwealth Ombudsman this article argues that this traditional assumptions as to the relationship between the two roles is flawed. The findings of the study presented in this article will impact upon the operation of the ombudsman institution and provide insight into ways in which the role and performance of such a growing international integrity review body may be strengthened.
Chandler, E.R., Millbank, J., Stuhmcke, A.G. & Karpin, I.A. 2013, 'Rethinking Consent, Information Giving and Counselling Concerning Stored Embryos in IVF treatment', Journal of Law and Medicine, vol. 20, no. 4, pp. 759-772.
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This article presents findings on consent practices drawn from a larger research project about the impact of law, ethical guidelines and clinical policies and practices upon the decisions that people make about their stored embryos created during IVF. In exploring the process of decision-making about stored embryos, participants reflected upon their earlier experiences of clinic information-giving and counselling, particularly at the outset of treatment. The study found that the type and timing of the information given and the range of options presented by clinics in typical consent processes did not meet many participants needs. Informed consent processes in IVF involving the storage of embryos require a number of key changes. Consent to treatment and subsequent decisions about storage and further outcomes for stored embryos need to be addressed separately. To be effective, embryo directive forms should be accompanied by plain language explanations of their legal effects, including what elements are binding, the source of the rules governing decisions, and available formal and informal dispute resolution avenues. Consent and embryo directive forms should be made available on clinic websites to allow greater opportunity for reflection, as well as enabling patients to compare the options available at each clinic. Greater availability of ongoing counselling as well as other external sources of information are crucial to enable informed decision-making.
Millbank, J., Chandler, E.R., Karpin, I.A. & Stuhmcke, A.G. 2013, 'Embryo Donation for Reproductive Use in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 789-810.
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The authors interviewed 10 people who had actually donated embryos for the reproductive use of others and four people who were recipients of donated embryos. In addition, another nine interviewees had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. The article places the present findings in the context of Australian and international research on widespread unwillingness to donate for reproductive use of others. The article then examines why the donors interviewed here were willing and able to donate, and presents findings concerning the donation process and models in operation, including matching and counselling practices and the contentious question of `directed donation. The article also reports the experiences of several `would-be or thwarted donors and examines the rationales for some of the external barriers to donation identified in the course of the study.
Karpin, I.A., Stuhmcke, A.G., Millbank, J. & Chandler, E.R. 2013, 'Analysing IVF Participant Understanding of, Involvement in, and Control over Embryo Storage and Destruction in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 811-830.
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This article examines patient responses to the issues of embryo storage and destruction in IVF
Stuhmcke, A.G., Karpin, I.A., Chandler, E.R. & Millbank, J. 2013, 'Use of Stored Embryos in IVF Following Separation or Death of a Partner', Journal of Law and Medicine, vol. 20, no. 4, pp. 773-788.
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This article examines legal and policy restrictions on the use of stored IVF embryos after relationship separation and death.
Millbank, J., Karpin, I.A. & Stuhmcke, A.G. 2013, 'Towards facilitative regulation of assisted reproductive treatment in Australia', Journal of Law and Medicine, vol. 20, no. 4, pp. 701-711.
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This editorial introduces four articles reporting on the results of a four-year ARC-funded research project undertaken at the University of Technology Sydney. The study explored how Australian laws and policies across States and Territories affected the decisions of assisted reproductive treatment users with respect to their frozen embryos. In this editorial we offer some conclusions about the impact of the law which we argue fundamentally fails to take account of the diversity of ways in which embryos have meaning for the women and men who created them. We believe that informed choice and autonomy in the area of reproduction is vital. This goes beyond "consent" to a particular outcome and involves an active and ongoing process of selection. State intervention in decisions about family formation should only occur in pursuit of legitimate objectives, justified by evidence, and intrude only to the extent that is absolutely necessary. Therefore, we conclude that there must be a fundamental rethinking of the role of the state in the regulation of assisted reproductive treatment towards one of facilitative regulation. Major reforms that follow from this reconceptualisation include the provision of external information-giving and dispute resolution body or bodies to assist genuinely informed decision-making.
Stuhmcke, A.G. & Stewart, P.E. 2013, 'The rise of the common law in statutory interpretation of tort law reform legislation: Oil and water or a milky pond?', Tort Law Journal, vol. 21, no. 1, pp. 1-26.
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The common law world has long puzzled over the interplay between common law and statute. This article demonstrates nuance in the approach to statutory interpretation in the six cases decided by the High Court between 2009 and 2013 involving interpretation of the tort law reform legislation: Adeels Palace Pty Ltd v Moubarak,1 Strong v Woolworths Ltd,2 Wallace v Kam,3 Wicks v State Rail Authority of New South Wales,4 Insight Vacations Pty Ltd v Young5 and Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.6 The cases evidence that, in the interpretation of a single statute the Civil Liability Act 2002 (NSW) the High Court employs a diversity of statutory interpretation techniques which may be characterised as ranging between an `oil and water approach (to those statutory provisions which limit or abrogate previous common law rules and rights) to a `milky pond approach (where the common law is used analogically to interpret and develop statute law). This article argues that the employment of this range of techniques underlines the view that legislation and common law cannot be seen as separate and independent simply because of their independent sources. Rather they `exist in a symbiotic relationship7 as `products of the same inherently dynamic legal process
Stuhmcke, A.G. 2012, 'The evolution of the classical ombudsman: a view from the antipodes', International Journal of Public Law and Policy, vol. 2, no. 1, pp. 83-95.
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The traditional core functions of a classical ombudsman are the investigation of individual complaints and own motion investigations of administrative action into areas of systemic importance. The ombudsman institution is an evolving one. Classical ombudsmen are using their systemic investigation powers more frequently to improve the quality of public administration. Further, there is an increasing variety of functions, such as auditing and monitoring, which are now ascribed to the jurisdiction of ombudsmen. This article investigates the changes occurring in the scale and scope of ombudsmen functions and argues that three models of classical ombudsman may now be identified. An explanation of these models and the reasons for changes in the operation of ombudsmen is provided through the experience of the nine Australian Federal, State and Territory classical ombudsmen.
Stuhmcke, A.G. 2011, 'Australian Ombudsmen and Human Rights', Australian Institute of Adfministrative Law Forum, vol. 66, pp. 43-50.
Stuhmcke, A.G. 2011, 'Teaching Plagiarism: Law Students Really Are That Special', Journal of the Australasian Law Teachers Association, vol. 4, no. 1&2, pp. 137-146.
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This paper examines the current narrative of plagiarism and citation style in Anstralia and argues against using citation style guides as both a cure for plagiarism and as a means to determine the act of plagiarism. The paper suggests that legal education should not promote a narrative of citation where citation style and wamings as to the penalties which will be applied in cases of plagiarism take priority over communicating to students an understanding of the processes and benefits of proper and scholarly attributioun of sources.
Stuhmcke, A.G. 2011, 'The Criminal Act Of Commercial Surrogacy In Australia: A Call For Review', Journal of Law and Medicine, vol. 18, no. 3, pp. 601-613.
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Australian surrogacy legislation punishes the pursuit of a commercial surrogacy arrangement as a criminal offence. Such legislation was first introduced in Victoria in 1986 and has since been applied in every Australian jurisdiction except for the Northe
Stuhmcke, A.G. 2010, ''Each for Themselves' or 'One for All'? The Changing Emphasis of the Commonwealth Ombudsman', Federal Law Review, vol. 38, no. 1, pp. 143-167.
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The three clear functions that the Commonwealth Ombudsman has currently reflecting a change in emphasis towards what may be broadly termed the quality control of government administration are discussed. The need is for observers of Ombudsman, administrative law and policy makers to ensure that the Ombudsman institution to evolve and diversify its functions without compromising its principles or aims.
Stuhmcke, A.G. 2010, 'The role of Australian ombudsmen in the protection and promotion of human rights', Australian Journal of Human Rights, vol. 16, no. 1, pp. 37-62.
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On 1 January 2007, the Victorian Ombudsman was granted the power to inquire into whether an administrative action of a public authority is incompatible with a human right. This express human rights mandate transforms the Victorian Ombudsman from a classical ombudsman into a human rights ombudsman. It is the first time that any Australian government has given a classical ombudsman a legislative mandate to perform an oversight role with respect to human rights protection. That noted, there is synergy between the role and function of existing state, territory and federal Australian classical ombudsmen and the protection of human rights. This article explains how Australian ombudsmen currently address human rights violations
Stuhmcke, A.G. 2009, 'Evaluating Ombudsman: A Case Study In Developing A Quantitative Methology To Measure The Performance Of The Ombudsman', International Ombudsman Yearbook, vol. 10, pp. 23-82.
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Stuhmcke, A.G. 2008, 'Changing Relations between Government and Citizen: Administrative Law and the Work of the Australian Commonwealth Ombudsman', Australian Journal of Public Administration, vol. 67, no. 3, pp. 321-339.
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This article examines the individual complaint-taking role of the Australian Commonwealth Ombudsman over a 28 year period between 19772005. This study was conceived through a curiosity to determine how a 30 year old administrative law institution is reacting to accommodate a dramatically altered legal, political and economic environment. The suspicion was that, in the absence of legislative amendment to its jurisdiction and role, the Commonwealth Ombudsman must strategically change due to the demands of these external forces. The overall quantitative finding from the data analysis is that the internal strategic direction of the Commonwealth Ombudsman is indeed altering. In terms of dispute resolution it is increasingly using its discretionary powers to turn individual complainants back to government departments/agencies. The data analysis reveals that this administrative law institution is shifting from a reactive individual complaint taker to a proactive standard setter for government administration. This article suggests that this movement may impact upon citizen 'rights' or perceptions of their rights to have their individual complaints heard against government. This in turn may have a ripple effect for notions of democratic accountability and the relationship between the citizen and the state.
Stewart, P.E. & Stuhmcke, A.G. 2007, 'Legal Pragmatism and the Pre-Birth Continuum: an absence of unifying principle', Journal of Law and Medicine, vol. 15, no. 2, pp. 272-295.
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The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.
Olliffe, B.M. & Stuhmcke, A.G. 2007, 'A National University Grievance Handlers? Transporting the UK Office of the Independent Adjudicator for Higher Education (OIA) to Australia', Journal of Higher Education Policy and Management, vol. 29, no. 2, pp. 203-215.
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Complaints made to external agencies about Australian universities are rising in both number and complexity. Recent debate has therefore focused upon how to improve grievance handling in the Australian higher education sector. One suggested "solution" is the creation of a national Australian university ombudsman. The UK has recently introduced such a national student complaint body--the Office of the Independent Adjudicator for Higher Education (OIA), a "world first". This paper examines the structure and operation of the OIA and highlights the advantages and pitfalls of introducing an equivalent office into the Australian higher education sector. It argues that, on balance, there are advantages in a national university ombudsman.
Stuhmcke, A.G. 2007, 'How good is private justice?', LIJ: Law Institute Journal, vol. 81, no. 6, pp. 6-7.
Stuhmcke, A.G. & Tran, A. 2007, 'The Commonwealth Ombudsman: An Integrity Branch of Government', The Alternative Law Journal, vol. 32, no. 4, pp. 233-236.
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Should the Commonwealth Ombudsman be part of a fourth integrity arm of Federal government? The article examines recent immigration cases determined by the Ombudsman to 'test' the extent to which the role now transcends the individual complainant contributing to the improvement of overall government administrative integrity
Stuhmcke, A.G. 2004, 'Looking backwards,looking forwards: Judicial and Legislative Trends in the Regulation or surrogate motherhood in the UK and Australia', Australian Journal of Family Law, vol. 18, no. 1, pp. 13-40.
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Stuhmcke, A.G. 2004, 'Privatisation and Corporatisation: What now for the Commonwealth Ombudsman ?', Australian Journal of Administrative Law, vol. 11, no. 2, pp. 101-114.
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Stuhmcke, A.G. 2003, 'Resolving Consumer Disputes', Australian Business Law Review, vol. 31, no. 1, pp. 48-53.
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Stuhmcke, A.G. 2003, 'The Commonwealth Ombudsman: Twenty Five Years on and no Longer Alone', AIAL Forum, vol. 36, pp. 54-63.
The Commonwealth Ombudsman: Twenty Five Years on and no Longer Alone
Stuhmcke, A.G. 2003, 'Ombudsman and Legal Practice: Where to from Here?', International Legal Practitioner, vol. 28, no. 2, pp. 48-51.
Stuhmcke, A.G. 2002, 'Limiting Access to Assisted Reproduction JM V QFG', Australian Journal of Family Law, vol. 16, no. 3, pp. 245-252.
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Stuhmcke, A.G. 2002, 'The Rise of the Australian Telecommunications Industry Ombudsman', Telecommunications Policy, vol. 26, no. 1-2, pp. 69-85.
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Australia is the first jurisdiction in the world to introduce a national private telecommunications industry ombudsman. Created in 1993, the Telecommunications Industry Ombudsman (TIO) has grown in jurisdiction and importance, becoming a regulatory cornerstone of the fully competitive post-1997 Australian telecommunications regime. This paper examines the role of the TIO as a mechanism for dispute resolution and as an industry regulator, suggesting that it provides an example of an innovatory regulatory process which transcends the divide between deregulation and proregulation. This raises the question as to the applicability of the ombudsman institution in terms of the regulation of telecommunications. Through highlighting the conciliatory nature of the ombudsman, the role of the TIO as a regulator is considered in its Australian context.
Stuhmcke, A.G. 2002, 'The Relevance of industry Ombudsman', Law Society Journal, vol. 40, no. 2, pp. 73-76.
Stuhmcke, A.G. 2002, 'When does a child have no father?', Health Law Bulletin, vol. 10, no. 5, pp. 73-76.
Stuhmcke, A.G. 2001, 'Access to Infertility Treatments and Single Women: What is the State of Play?', Journal of Law and Medicine, vol. 9, pp. 12-14.
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Stuhmcke, A.G. 2001, 'Grievance handling in Australian Universities: the case of the university ombudsman and the dean of students', Journal of Higher Education Policy and Management, vol. 23, pp. 181-189.
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Stuhmcke, A.G. 1998, 'The Corporatisation and Privatisation of the Australian Telecommunications Industry: The Role of the Telecommunications Industry Ombudsman', The University of New South Wales Law Journal, vol. 21, no. 3, pp. 807-833.
The Telecommunications Industry Ombudsman Scheme (TIO Scheme) is a world first. The creation of an industry based Ombudsman to resolve consumer complaints in telecommunications is a unique Australian innovation. This article examines the origins, structure, functions, role, powers and obligations of the TIO Scheme. It concludes that while the TIO Scheme is a competent organisation which performs a crucial role in the new telecommunications regulatory regime introduced on 1 July 1997, there are a number of systemic criticisms which can be made of the new Ombudsman. In short, the 'jury is still out on the TIO.'
Stuhmcke, A.G. 1998, 'Re Evelyn: Surrogacy, Custody and the Family Court', Australian Journal of Family Law, vol. 12, no. 3, pp. 297-304.
Stuhmcke, A.G. 1998, 'Privatising Administrative Law: The Telecommunications Industry Ombudsman Scheme', Australian Journal of Administrative Law, vol. 6, no. 1, pp. 15-33.
Stuhmcke, A.G. 1997, 'Administrative Law and the Privatisation of Government Business Enterprises: A Case Study of the Victorian Electricity Industry', Australian Journal of Administrative Law, vol. 4, no. 4, pp. 185-199.
Stuhmcke, A.G. 1997, 'Lesbian Access to In Vitro Fertilisation', Australasian Gay & Lesbian Law Journal, vol. 7, pp. 15-40.
Stuhmcke, A.G. 1996, 'The Legal Regulation of Fetal Tissue Transplantation', Journal of Law and Medicine, vol. 4, no. 2, pp. 131-143.
Stuhmcke, A.G. 1996, 'Access to reproductive technology', Health Law Bulletin, vol. 5, no. 4, pp. 39-40.
Stuhmcke, A.G. 1996, 'For Love or Money? The Legal Regulation of Surrogate Motherhood', E Law - Murdoch University Electronic Journal of Law, vol. 3, no. 1, pp. 1-25.
Stuhmcke, A. 1995, 'For love or money: the legal regulation of surrogate motherhood.', E law : Murdoch University electronic journal of law, vol. 2, no. 3, p. E4.
Stuhmcke, A.G. 1994, 'Surrogate Motherhood: The Legal Position in Australia', Journal of Law and Medicine, vol. 2, no. 2, pp. 116-124.

Other

Stuhmcke, A.G. 2012, 'Torts', Zortonomy, Apple Store.
The first Torts App for Australia.

Reports

Millbank, J., Stuhmcke, A.G., Karpin, I.A. & Chandler, E.R. UTS Printing 2013, Enhancing Reproductive Opportunity Report, Sydney.
This report presents the results of a four year study about law, policy and practice concerning frozen IVF embryos in Australia. The report drew on the experience of over 400 past and present IVF patients in over twenty clinical sites across Australia, spanning two decades of experiences.