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Jenni Millbank

Biography

Professor Millbank is a leading international expert on gender, health and law, an is Director of the Law Health Justice research group. Her research reaches across family, reproduction and human rights law making a distinctive contribution to broadening legal understandings of family and developing new approaches to relationships in law. Many of her recommendations for law reform concerning family relationships and reproductive rights have been implemented in Australia and elsewhere in the past decade. She has also been at the forefront of developing international thinking concerning gender based persecution, working with UNHCR and others in policy development and litigation to ensure equitable treatment in refugee status determinations for women and those fleeing violence based on sexual orientation and gender identity.

Professor Millbank’s socio-legal scholarship reflects her on-going commitment to developing laws that reflect and adapt to social needs through research that is empirically based, responsive to community concerns, and practical in application.

Professional

Since March 2015 Professor Millbank has been a part time member of NCAT sitting in the occupation division (health list).
Image of Jenni Millbank
Distinguished Professor, Faculty of Law
LLM (UBC), PhD (Kent)
 
Phone
+61 2 9514 3410

Research Interests

Current projects include:

Families and Reproduction

  • 'Regulating Relations: Forming Families Inside and Outside Law’s Reach’ – a major 4 year project (2015-2018) exploring the Australian experience of cross border reproductive treatment, looking particularly at surrogacy, egg donation and sex selection. The research is funded by an ARC Discovery grant and is taking place with colleagues Isabel Karpin and Anita Stuhmcke.

http://regulatingrelations.com/

Other work on the legal regulation of non-traditional family forms, relatedness and assisted reproduction, including:

  • Surrogacy, legal parentage and citizenship;
  • Continuing work on IVF regulation, particularly concerning the use and disposal of stored embryos;
  • Gamete donation and donor identity disclosure regimes;
  • The use of gametes and embryos for reproduction after the death of a partner.

Refugee law

  • A comparative international project on gender related persecution and forced migration in collaboration with Professor Catherine Dauvergne at UBC, Vancouver.
  • Migration as a Family Matter, with colleagues at VU Amsterdam.

Can supervise: Yes

Available for research supervision in:

  • Assisted Reproduction, IVF, donor conception, surrogacy
  • Cross border reproduction
  • Health regulation
  • Refugee Law
  • Family and Relationship Law
  • Gender, Law and Sexuality
  • Feminist Jurisprudence
  • Discrimination and the Law

  • Family Law
  • New Families, New Technologies
  • Gender Sexuality and Law
  • Complex Parenting Matters

Chapters

Millbank, J. 2015, 'The Legal Recognition of Family Relationships' in Fehlberg, B., Kaspiew, R., Millbank, J., Kelly, F. & Behrens, J. (eds), Australian Family Law The Contemporary Context, Oxford University Press, Sydney, pp. 73-128.
In this chapter we examine the legal recognition of family relationships against a background of diversity in the way people identify and live as families in Australia. We begin by providing an overview of social science material on family diversity in Australia and then go on to examine the contest between approaches for guiding relationship recognition in law. We first look at legal recognition of adult relationships, in particular examining the operation of new provisions in the Family Law Act 1975 (Cth) (FLA), which extended the operation of the Act to cover de facto partner financial (that is, property and maintenance) disputes on relationship breakdown from 1 March 2009. This is followed by an examination of the rules recognising the legal relationship between adults and children, in particular when they are not genetically relatedsuch as in families formed through assisted conception utilising donor gametes or surrogacy or in instances of customary adoption.
Kelly, F. & Millbank, J. 2015, 'Framework and Principles for Decision Making in Childrens Matters' in Fehlberg, Millbank, Kaspiew & Kelly (eds), Australian Family Law The Contemporary Context, OUP, Sydney, pp. 260-312.
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In this chapter, we examine the application of the legislative framework for the resolution of parenting disputes. In response to dissatisfaction among fathers about the amount of time they were able to spend with their children and strong support for shared parenting among other family law stakeholders, the new legislative framework introduced a presumption of equal shared parental responsibility (a broad term used to describe the ability to engage in major decision making ), which was linked within the legislation to shared parenting time (which involves children living across two households, though not necessarily for equal time). Though
Millbank, J., Fehlberg, B., Kaspiew, R. & Kelly, F. 2015, 'Specific Issues in Parenting Disputes' in Fehlberg, Millbank, Kaspiew & Kelly (eds), Australian Family Law The Contemporary Context, OUP, Sydney, pp. 313-381.
In this chapter we extend our discussion of the legal framework for the resolution of Family Law Act 1975 ( Cth) (FLA) parenting disputes by considering in greater detail several key issues that regularly arise. Our focus throughout is on how these issues are dealt with in the case law and how approaches have changed over time. We make reference to material establishing the broader policy and research context where this is available, and at various points reflect on how the broader themes of the book are demonstrated in approaches to these issues. We begin by considering recent case law (and court data) in order to provide insight into the circumstances in which the family law courts appear inclined or disinclined towards equal time and substantial and significant time outcomes (broadly, shared care). We then consider: the relevance of parents views regarding their childrens religious upbringing; the significance of a childs Aboriginal/Torres Strait Islander background in assessing what will be in their best interests; the particular issues that people who are seeking parenting orders, but who are not parents, may face in Part VII proceedings; the extent to which parental incapacity arising from mental illness shapes parenting outcomes; and cases that involve changing where the child will live (applications by a parent to relocate with the child, and cases involving international child abduction).
Karpin, I.A. & Millbank, J. 2014, 'Assisted Reproduction and Surrogacy in Australia' in Eekelaar, J. & George, R. (eds), ROUTLEDGE HANDBOOK OF FAMILY LAW AND POLICY, Routledge, Oxford, pp. 201-214.
Karpin, I. & Millbank, J. 2014, 'Regulation of assisted reproductive technology and surrogacy in Australia' in Routledge Handbook of Family Law and Policy, pp. 201-214.
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Arbel, E., Dauvergne, C. & Millbank, J. 2014, 'Introduction' in Gender in refugee law - from the margins to the centre, Routledge, UK, pp. 1-16.
Berg, L.A. & Millbank, J. 2013, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Goldberg, S.B. (ed), Sexuality and Equality Law, Ashgate, Burlington, pp. 275-299.
Berg, L.A. & Millbank, J. 2013, 'Developing a Jurisprudence of Transgender Particular Social Group' in Thomas Spijkerboer (ed), Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum, Routledge, Oxford, pp. 121-153.
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Millbank, J. 2013, 'Sexual Orientation and Refugee Status Determination over the Past 20 years: Unsteady Progress through Standard Sequences?' in Thomas Spijkerboer (ed), Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum, Routledge, Oxford, pp. 32-54.
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In this chapter, I sketch a framework for analysis of sexual orientation based asylum claims that aims to accommodate Doth common themes and divergent ourcomes (Jansen and Spijkerboer 2011: 14; O'Dwyer 2008; and more generally Ramji-Nogales et al. 2009) across the range of jurisdicrions grappling with these issues to date. I take as my starting point Kees Waaldijk's work from the late 1990s, in which he claimed a discernible trend of 'steady progress' through 'standard sequences' in the development of sexual orientation rights across the European Union in the last third of the twentieth century (Waaldijk 2001b). Waaldijk suggested that within these trends there were two 'laws' or preconditions to reform, which he titled the 'law of small change' and the 'law of symbolic preparation'. I suggest that progress in sexuality rights in refugee status determination (RSD) has in fact been rather tlnsteady, with significant informal resistance springing up to take the place of doctrinal obstacles as these are dismantled.
Berg, L.A. & Millbank, J. 2011, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Robson, R. (ed), Sexuality and Law - Volume III: Sexual Freedom, Ashgate, Farnham, Surrey, pp. 321-349.
Millbank, J. 2010, 'Reproductive Outsiders - The Perils and Disruptive Potential of Reproductive Coalitions' in Brooks, K. & Leckey, R. (eds), Queer Theory: Law, Culture, Empire, Routledge, London, UK, pp. 105-121.
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This chapter explores commonalities and differences among families formed through assisted means.
Millbank, J. 2010, 'Reproductive outsiders - the perils and disruptive potential of reproductive coalitions' in Queer Theory: Law, Culture, Empire, pp. 106-121.
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Kassisieh, G. & Millbank, J. 2009, 'Same-sex couples and their families' in Fallon, M. (ed), The law handbook: Your practical guide to the law in New South Wales 11th edition, Redfern Legal Centre, Redfern, pp. 957-992.
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In 2008, significant reforms to state and federal laws have brought greater recognition to same-sex couples and their children. Equal rights and responsibilities have been extended to same-sex couples who are de facto partners across almost all laws throughout Australia, and to lesbian co-parents also in NSW and federal law. This chapter describes recent changes in state and federal law, and how same-sex couples and parents are recognised. The new definitions and their interpretation are outlined, then rights in various substantive areas are discussed.
Millbank, J. & Stewart, M. 2007, 'Same-sex couples and their families' in Rosemary Barry (ed), The Law Handbook 10th edition, University of New South Wales Press, Sydney, Australia, pp. 941-969.
Millbank, J. 2005, 'It's About This: Lesbians, Prison, Desire' in Michael Freeman (ed), Law and Popular Culture, Oxford University Press, Oxford, UK, pp. 449-469.
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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.
Millbank, J. 2017, 'Reflecting the 'Human Nature' of IVF Embryos: Disappearing Women in Ethics, Law, and Fertility Practice', Journal of Law and the Biosciences.
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Many laws and ethical documents instruct us that disembodied embryos created through IVF processes are not mere tissue; they are 'widely regarded' as unique objects of serious moral consideration. Even in jurisdictions which disavow any overt characterization of embryonic personhood, the embryo, by virtue of its uniqueness and orientation toward future development, is said to have a 'special status' or command 'respect'. The woman whose desire for a child or children created this embryo, and who inhabits the body to whom it may one day be returned, is an omission or at best an afterthought in such frameworks. This paper engages in an historical analysis of this conundrum in the Australian context. It argues that the institutional structure of foundational ethics bodies (made up of a mandated mix of scientific and religious representation, in practice dominated by men, and absent any requirement of the participation of women patients) has produced the embryo as an object of ideological compromise: 'not mere cells' and 'not life', but a poorly bounded and endlessly contested something-in-between. The paper then turns to engage with the narratives of a selection of women patients about their sense of connectedness to their stored or discarded embryos, drawn from a larger study on decision making concerning patient's experience of decision making about IVF embryos. I draw on these narratives to ask how we could reorient law and policy toward the concerns, needs and desires of such women.
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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Millbank, J. 2015, 'Rethinking "Commercial" Surrogacy in Australia', Journal of Bioethical Inquiry, vol. 12, no. 2, pp. 477-490.
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This article proposes reconsideration of laws prohibiting paid surrogacy in Australia in light of increasing transnational commercial surrogacy. The social science evidence base concerning domestic surrogacy in developed economies demonstrates that payment alone cannot be used to differentiate `good surrogacy arrangements from `bad ones. Compensated domestic surrogacy and the introduction of professional intermediaries and mechanisms such as advertising are proposed as a feasible harm minimisation approach. I contend that Australia can learn from commercial surrogacy practices elsewhere, without replicating them.
Millbank, J. 2015, 'Responsive Regulation of Cross Border Assisted Reproduction', Journal of Law and Medicine, vol. 22, no. 3, pp. 346-364.
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My question in this paper is: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross border assisted reproduction? To begin I summarise the available international scholarship and outline what little we know about Australian cross border reproductive travel. Of the three generally proposed responses to CBRC: prohibition, harm minimisation and harmonisation, I summarily reject the first approach, and instead discuss a mixture of the latter two. The paper proposes the beginnings of an immediate policy response aimed not at stopping cross border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for ART and encouraging domestic self-sufficiency in reproduction.
Millbank, J. 2015, 'Responsive regulation of cross-border assisted reproduction.', J Law Med, vol. 23, no. 2, pp. 346-364.
This article considers the question: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross-border assisted reproduction? To begin, the article summarises the available international scholarship and outlines what little we know about Australian cross-border reproductive travel. Of the three generally proposed responses to cross-border reproductive care (prohibition, harm minimisation and harmonisation), the article summarily rejects the first approach, and instead discusses a mixture of the latter two. The article proposes the beginnings of an immediate policy response aimed not at stopping cross-border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for assisted reproductive technology and encouraging domestic self-sufficiency in reproduction.
Millbank, J. 2015, 'Responsive regulation of cross-border assisted reproduction', Journal of law and medicine, vol. 23, no. 2, pp. 346-364.
This article considers the question: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross-border assisted reproduction? To begin, the article summarises the available international scholarship and outlines what little we know about Australian cross-border reproductive travel. Of the three generally proposed responses to cross-border reproductive care (prohibition, harm minimisation and harmonisation), the article summarily rejects the first approach, and instead discusses a mixture of the latter two. The article proposes the beginnings of an immediate policy response aimed not at stopping cross-border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for assisted reproductive technology and encouraging domestic self-sufficiency in reproduction.
Millbank, J. 2014, 'Numerical Limits in Donor Conception Regimes: Genetic Links and Extended Family in the Era of Identity Disclosure.', The Medical Law review, vol. 22, no. 3, pp. 325-356.
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This article critically examines the setting of limits on the number of children or family groups that may be formed with a single donor in assisted conception regimes. Originally, under conditions of anonymity, numerical limits were said to contain the risk of inadvertent consanguinity between offspring who would not know, and could not know, that they were genetic half siblings, and also between donor and offspring. The increasing embrace of identity disclosure regimes has led to calls for stricter numerical limits based on the purported harm of being exposed to `too many genetic relatives in the future. This article asks: how many is too many? And how do we know? The UK and Australian positions are examined, and placed alongside a discussion of qualitative research involving interviews with 20 parents of donor conceived children.
Millbank, J. 2014, 'Identity Disclosure and Information Sharing in Donor Conception Regimes: The Unfulfilled Potential of Voluntary Registers', International Journal of Law, Policy and the Family, vol. 28, no. 3, pp. 223-256.
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This article explores the scope and effectiveness of formal donor identity registers currently in operation in assisted conception regimes in Australia and the UK. In particular, it examines the function of voluntary registers which are intended to fill the gaps left by `central identity registers which mandate timed release of donor identity on request of donor conceived adults. There are three `gaps left by central registers identified here: conceptions which took place prior to the operation of the relevant registers; parents and offspring who desire access to identifying information or a means of making contact prior to the age set for information release under current registers; and parents and offspring who desire information not available under current registers, specifically, identifying information or a means of making contact with other offspring from the same donor. The article reflects on interviews with a set of 21 parents who had undertaken donor conception in Australia through licensed IVF treatment concerning their understandings of disclosure regimes and wishes for, and experience of, seeking information and contact.
Arbel, E., Dauvergne, C. & Millbank, J. 2014, 'Gender in refugee law: From the margins to the centre', Gender in Refugee Law: From the Margins to the Centre, pp. 1-296.
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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. 2013, 'Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy', Australian Journal of Family Law, vol. 27, no. 2, pp. 135-169.
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The Australian approach to legal parentage is particularly complex in the context of trans-national surrogacy arrangements. Australian law does not generally recognise parental status granted in other jurisdictions and overseas commercial surrogacy arrangements are excluded from specifically enacted domestic surrogacy laws that enable transfer of legal parentage in certain circumstances. Thus Australian administrators and judges have had to grapple with the claims of Australians trying to return with a foreign born child with whom they usually have a genetic link and a primary caregiving role, but no legally recognised relationship. This recognition has occurred through ad hoc liberalisation of interpretations of `parent and `child in particular pieces of legislation, which has left parents in a state of ambiguous, labyrinthine and `limping legal parentage. This article presents an analysis of the problems posed by the current lacunae before going on to explore the risks and potentiality of possible reforms to federal law. The analysis in this article is informed throughout by my own view of surrogacy as a valid method of family formation which should be respected. The State has a legitimate objective in trying to ensure that surrogacy is undertaken with the informed and continuing consent of all the parties, and most particularly the surrogate, given the unique impact and significance of the gestational relationship. This must be balanced with the need to accord certainty of parental status to children being raised in surrogacy families.
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.
Karpin, I.A., Millbank, J. & Stuhmcke, A. 2013, 'Editorial: Towards Facilitative Regulation of Assisted Reproductive Treatment in Australia'.
Millbank, J. 2012, 'From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of "New" Surrogacy in Australia', Griffith Law Review, vol. 21, no. 1, pp. 101-136.
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This article interrogates the role of discourse and narrative in shaping the recent wave of reforms to surrogacy law and policy around Australia. In particular I examine two sites of dialogue, parliamentary debate and media representations, where surrogacy has been dramatically reframed in order to justify a new era of regulation. I argue that the themes that have emerged through these recent reform dialogues contribute to the reshaping of contemporary understandings of surrogacy and of non-traditional family formation more broadly.
Millbank, J. 2012, 'The Right of Lesbians and Gay Men to Live Freely, Openly and on Equal Terms is Not Bad Law: A Reply to Hathaway and Pobjoy', New York University Journal of International Law and Politics, vol. 44, no. 2, pp. 497-527.
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I address Hathaway and Pobjoys critique in this special issue of the decisions of the High Court of Australia and Supreme Court of the United Kingdom, respectively, in s395 and HJ and HT . These cases represent the two highest level judicial determinations in the world to address gay refugee claims to date. While neither decision is beyond criticism, the cases both separately and together advance the development of refugee jurisprudence on sexuality in major ways. These decisions emphatically reject discretion reasoning, affirm that the experience of sexual orientation extends beyond mere private sexual conduct, and articulate the importance of equalityâ- âboth as between gay and straight people in the country of origin and between sexuality claims and other categories of claimants in the receiving country -â in applying the protections of refugee law. I examine the harm of discretion reasoning, and critique Hathaway and Pobjoyâs claims as resting upon a misleading and unsustainable act/identity distinction (comprising equally unsustainable binaries of integral/peripheral and necessary/voluntary acts). Next, I demonstrate through analysis of previous jurisprudential developments in the UK that Hathaway and Pobjoyâs proposed test of limiting protection only to activities ââ'reasonably required'â to express sexual orientation is highly susceptible to misapplication in practice.
Millbank, J. 2011, 'The New Surrogacy Parentage Laws in Australia: Cautious Regulation or '25 Brick Walls'?', Melbourne University Law Review, vol. 35, no. 1, pp. 165-207.
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This article critically analyses recent law reforms that have taken place in all Australian jurisdictions except the Northern Territory which allow for the transfer of legal parentage in surrogacy arrangements from the birth mother (and her partner, if any) to the âintended parentsâ. Although styled as liberalising reforms, the increasingly complex web of eligibility rules are likely to be an ill fit with the existing and future family formation behaviours of those involved in surrogacy, and may ultimately exclude more families than they assist. While surrogacy policy throughout Australia aims to prevent the exploitation of women who act as birth mothers, prevent the commercialisation of reproduction and to protect the interests of current and future children born through these means, this article argues that the reforms are unlikely to meet these aims. The interest of children in having a legal relationship with the parents who are raising them will not be met for many, as half of the regimes exclude children conceived outside the jurisdiction and all of them exclude arrangements where payment has been made to the birth mother. Potential harms are not being prevented, but rather are being exported elsewhere through the increasing incidence of international surrogacy. A more flexible and inclusive approach to parental transfer, such as that which currently exists in UK law, is recommended.
Millbank, J. & Dauvergne, C. 2011, 'Forced Marriage and the Exoticization of Gendered Harms in United States Asylum Law', Columbia Journal of Gender and Law, vol. 19, no. 3.
While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from the cases from the United States while detailed findings regarding the broader international data set are published elsewhere. We find that the United States is far behind Australia, Canada and the United Kingdom in terms of analyzing gender-related persecution. In addition to not finding a single case with a straightforward holding that forced marriage in and of itself could constitute persecution, we also did not find any engagement with international human rights standards. Of the few cases that were successful on a substantive basis, we found that the underlying facts reflect an extreme exoticization of the women involved.
Millbank, J. & Dauvergne, C. 2010, 'Forced Marriage and the Exoticization of Gendered Harms in United States Asylum Law', Columbia Journal of Gender and the Law, vol. 19, no. 4, pp. 898-964.
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This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.
Dauvergne, C. & Millbank, J. 2010, 'Forced Marriage as a Harm in Domestic and International Law', Modern Law Review, vol. 73, no. 1, pp. 57-88.
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This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.
Dauvergne, C. & Millbank, J. 2010, 'Forced Marriage as a Harm in Domestic and International Law', Modern Law Review, vol. 73, pp. 57-88.
Berg, L.A. & Millbank, J. 2009, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants', Journal of Refugee Studies, vol. 22, no. 2, pp. 195-223.
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This article draws upon psychological and sociological literature to explore the issues that arise in eliciting and presenting a refugee narrative when the claim is based upon sexual orientation. In particular we explore the psychological âstage modelâ of sexual identity development and examine the pervasive impact this model has had upon decision-makersâ âpre-understandingâ of sexual identity development as a uniform and linear trajectory.
Millbank, J. 2009, 'From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom', International Journal of Human Rights, vol. 13, no. 2/3, pp. 391-414.
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In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim to refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could âexpectâ refugee applicants to âco-operate in their own protectionâ by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by âchoiceâ. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicantâs claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and westernised notions of âgaynessâ as a template against which the applicants were judged.
Millbank, J. 2009, 'The Ring of Truth: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations', International Journal of Refugee Law, vol. 21, no. 1, pp. 1-33.
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Credibility assessment has always been a major issue in refugee determinations and its importance increases in the context of widespread introduction of âfast-trackâ processes and the manifest trans-national trend to truncate (or indeed remove) avenues for review. This article explores the practice of credibility assessment in lower level tribunals using a case study of over 1000 particular social group ground (PSG) decisions made on the basis of sexual orientation over the past 15 years. Credibility played an increasingly major role in claim refusals, and negative credibility assessments were not always based on well-reasoned or defensible grounds. The article uses this specific case study in order to ground recommendations for structural and institutional change aimed at improving the credibility assessment process in refugee determinations more broadly.
Millbank, J. 2009, 'De facto Relationships, Same-Sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms', Australian Journal of Family Law, vol. 23, no. 3, pp. 160-193.
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In October 2008 a suite of major reforms concerning family relationships passed federal parliament. Broadly speaking these reforms include same-sex couples within the category of âde facto relationshipâ in all federal laws (previously limited to unmarried heterosexual couples), extend the definition of âparentâ and âchildâ in much federal law to include lesbian parents who have a child through assisted reproductive means and, in more limited circumstances, to include parents who have children born through surrogacy arrangements. The reforms also bring de facto couples, both heterosexual and same-sex, from the territories and referring states (which to date do not include Western Australia and South Australia) within the federal family law property division regime. This article is divided into two main parts, examining the reforms relating to de facto partners first and then exploring those concerning parental status.
Millbank, J. 2009, 'From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom', International Journal of Human Rights, Vol. 13, no. 2.
Millbank, J. 2008, 'Unlikely Fissures And Uneasy Resonances: Lesbian Co-Mothers, Surrogate Parenthood And Fathers' Rights', Feminist Legal Studies, vol. 16, no. 2, pp. 141-167.
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This article explores commonalities between parental claims for lesbian co-mothers and other contexts in which intention is a key aspect to family formation for (mostly) heterosexual families: in particular, surrogacy and pre-birth disputes over embryos. Through a series of case studies drawn from recent reproductive controversies, the paper uses the lens of empathy to argue for social or non-genetic modes of parenthood connecting lesbian mothers and other 'reproductive outsiders'.
Millbank, J. 2008, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family', International Journal of Law, Policy and the Family, vol. 22, no. 2, pp. 149-177.
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This article contends that a 'functional family' model falters in the context of lesbian and gay intra-family disputes. Functional family arguments have frequently been misused by birth-mothers in child-related disputes between separated lesbian parents. Moreover, functional family claims have been completely excluded from consideration in disputes between lesbian mothers and known sperm donors/biological fathers. I argue that the rise of fathersâ rights movements and increasing emphasis on biological family gives both discursive and legal authority to essentialised, gendered and symbolic status claims made by biological parents, valorising distant biological fathers over mother-led family units, and separated biological mothers over non-biological mothers. Finding that the functional family approach cannot usefully resist the current ideological climate, this article concludes with exploration of an alternative: framing a form of parental status for lesbian co-parents based on intentionality.
Millbank, J. 2008, 'The Role of 'Functional Family' in Same-Sex Family Recognition Trends', Child and Family Law Quarterly, vol. 20, no. 2, pp. 155-182.
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A relatively overlooked aspect of trends according relationship rights to same-sex couples and families in Western nations in recent times is the extent to which they have drawn upon the sociological concept of functional family. The kernel of functional family claims in law is that rights should flow from the way a relationship functions rather than being limited by its legal form. This article explores the influence and development of functional family approaches in same-sex family recognition measures in recent decades in Canada, Australia, Britain and the United States.
Millbank, J. 2008, 'The Role of 'Functional Family' in Same-Sex Family Recognition Trends', Child and Family Law Quarterly, vol. 20, no. 2.
Millbank, J. 2008, ''The Ring of Truth': A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations', International Journal of Refugee Law, vol. 21, no. 1.
Millbank, J. 2008, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family', SSRN Electronic Journal.
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Millbank, J. & Graycar, R. 2007, 'From Functional Family To Spinster Sisters: Australia's Distinctive Path To Relationship Recognition', Washington University Journal of Law and Policy, vol. 24, no. 1, pp. 121-164.
Millbank, J. 2006, 'The Recognition of Lesbian and Gay Families in Australian Law: Part 1 Couples', Federal Law Review, vol. 34, no. 1, pp. 1-44.
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Millbank, J. 2006, 'The Recognition of Lesbian and Gay Families in Australian Law: Part 2 Children', Federal Law Review, vol. 34, no. 2, pp. 205-260.
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Millbank, J. 2006, 'The Changing Meaning of De Facto Relationships', Current Family Law, vol. 12, no. 2, pp. 82-93.
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The meaning of "de facto relationship" has changed dramatically in Australian law in recent years. The most obvious changes are the raft of legislative reforms including same-sex couples as de facto couples in a wide array of state laws through 1999-2004. Additionally, an examination of recent case law reveals notable changes to the definition of "de facto relationship" through judicial interpretation, with a distinct trend towards a broader, more flexible interpretation of the de facto category, a less formalistic approach to the indicia of cohabitation, and a lesser focus on the traditional hallmarks that are thought to be "marriage-like" (such as public reputation, mingled finances and putative monogamy). These cases are important signposts as the Family Court will soon be grappling with questions around de facto relationships, including how to determine the existence and duration of a relationship.
Millbank, J. 2005, 'A Preoccupation with Perversion: the British Response to Refugee Claims on the Basis of Sexual Orientation 1989-2003', Social and Legal Studies, vol. 14, no. 1, pp. 115-138.
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Britains approach to refugee claims by lesbians and gay men has been notably hostile in comparison to other Western refugee-receiving nations. For many years decisionmakers in the UK have refused to accept that those fleeing persecution on the basis of sexual orientation were even capable of being refugees under the terms of the Refugees Convention. Since accepting eligibility in 1999, UK decision-makers have repeatedly held that asylum seekers are under a duty to protect themselves by hiding their sexuality. They have also been extremely reluctant to hold that criminal sanctions for gay sex are themselves persecutory and have frequently failed to appreciate the relationship between violence against lesbians and gay men and the existence of criminal provisions. This article suggests that there is a discernible national response in the courts and tribunals of Britain to sexual orientation-based refugee claims. That response carries echoes of the 1956 Wolfenden Report, most notably its solution to the problem of homosexuality: privacy.
Millbank, J. 2005, 'And then. . . the Brides Changed Nappies: Lesbian Mothers, Gay Fathers and the Legal Recognition of Our Relationships with the Children We Raise', SSRN Electronic Journal.
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Millbank, J. 2004, 'It's About This: Lesbians, Prison, Desire', Social and 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 stories 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 womens 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 on the Basis of Sexual Orientation', 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.
Millbank, J. 2003, 'Gender, Sex and Visibility in Refugee Decisions on Sexual Orientation', Georgetown Immigration Law Journal, vol. 18, no. 1, pp. 71-110.
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Dauvergne, C. & Millbank, J. 2003, 'Burdened by Proof: How the Australian Refugee Review Tribunal has failed lesbian and gay asylum seekers', Federal Law Review, vol. 31, no. 2, pp. 299-342.
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Millbank, J. 2003, 'Gender, Visibility and Public Space in Refugee Decisions', Seattle Journal for Social Justice, vol. 1, no. 3, pp. 725-742.
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Dauvergne, C. & Millbank, J. 2003, 'Before the High Court: Applicants S396/2002 and S395/2002, a gay refugee couple from Bangladesh', Sydney Law Review, vol. 25, no. 1, pp. 97-124.
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Leave to appeal from a decision of the Full Federal Court in Kabir v Minister for Immigration and Multicultural Affairs - the case concerns a gay couple from Bangladesh seeking asylum and marks the first time that a final appellate court anywhere in the world will consider a refugee claim based on grounds of sexual orientation - High Court has played an important role in developing international refugee jurisprudence.
Millbank, J. 2003, 'From Here to Maternity: A Review of the Research on Lesbian and Gay Families', Australian Journal of Social Issues, vol. 38, no. 4, pp. 541-600.
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This article presents a review of current British and American literature on the children of lesbians and gay men, and connects this literature with the small amount of information available on lesbian and gay families in Australia. The article outlines available demographic information about lesbian and gay family forms; provides an overview of the results of sociological and psychological research into the development and well being of children raised in lesbian and gay families; and reviews the implications of the research reviewed for both current and future legal and policy regulation of lesbian and gay families.
Millbank, J. 2002, 'Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia', Melbourne University Law Review, vol. 26, no. 1, pp. 144-177.
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Refugee tribunal cases in Australia and Canada - sexuality, otherness and the public private divide in the context of refugee case law - sexuality as the basis of gay and lesbian applicants claims for protection - empathy and imagination - inability of decision makers to be empathetic with gay and lesbian refugee applicants and therefore put at risk the applicants persecution claims.
Millbank, J. & Sant, K. 2000, 'A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW', Sydney Law Review, vol. 22, no. 181.
Graycar, R. & Millbank, J. 2000, 'The Bride Wore Pink. . . to the Property (Relationships) Legislation Amendment Act 1999', Canadian Journal of Family Law, vol. 17, pp. 227-282.

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.
Millbank, J. Human Rights and Equal Opportunity Commission 2006, Areas of Federal Law that Exclude Same Sex Couples and Families, pp. 1-131, Australia.
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Independent book length research report auditing all federal law that impacts on couple and parenting relationships, undertaken for HREOC.
Lovric, J. & Millbank, J. NSW Law Reform Commission 2003, Darling, Please Sign This Form: A Report on the Practice of Third Party Guarantees in New South Wales, pp. 1-182, Sydney, Australia.
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Research Background This research examined 'third party guarantees', where another person - often a wife or family member - is asked to provide security for the debt of the borrower. Borrowers are frequently involved in running small businesses. The guarantor often receives no direct benefit from the loan and agrees to undertake it due to a relationship of emotional independence; moreover they may be given only incomplete information about the debt and the risks involved. 'Relationship debt' through this kind of contract involves a high risk of unfair dealing, and has generated considerable litigation. Research Contribution This research explored 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? Prior to this research the main source of information was judgments of cases that are litigated when things "go wrong". Yet litigated cases represent a very small percentage of disputed matters, the vast majority of which settle prior litigation. Reported cases also do not give any sense of transactions that are not disputed. Therefore, drawing information only from litigated cases was misleading policy-makers. This study explored the experiences and views of lenders, borrowers, guarantors, litigants and judges to provide a solid basis for legal reform. Research Significance This project was the first comprehensive Australian empirical research into the law and practices governing third party guarantees. It was funded through an ARC SPIRT (now linkage) grant and undertaken in partnership with the NSW Law Reform Commission. The findings were published as a research report and informed the Commission's final report and recommendations.