Professor Jenni Millbank

Millbank, J. 2010, 'Reproductive Outsiders - The Perils and Disruptive Potential of Reproductive Coalitions' in Kim Brooks and Robert Leckey (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.

Berg, L.A. & Millbank, J. 2011, 'Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants' in Robson, R (eds), Sexuality and Law - Volume III: Sexual Freedom, Ashgate, Farnham, Surrey, pp. 321-349.

Kassisieh, G. & Millbank, J. 2009, 'Same-sex couples and their families' in Fallon, M (eds), 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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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 equalityÔ++- Ô++both as between gay and straight people in the country of origin and between sexuality claims and other categories of claimants in the receiving country -Ô++ in applying the protections of refugee law. I examine the harm of discretion reasoning, and critique Hathaway and PobjoyÔ++s 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 PobjoyÔ++s proposed test of limiting protection only to activities Ô++Ô++'reasonably required'Ô++ 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 Ô++intended parentsÔ++. 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.

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.

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.

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 Ô++stage modelÔ++ of sexual identity development and examine the pervasive impact this model has had upon decision-makersÔ++ Ô++pre-understandingÔ++ of sexual identity development as a uniform and linear trajectory.

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 Ô++de facto relationshipÔ++ in all federal laws (previously limited to unmarried heterosexual couples), extend the definition of Ô++parentÔ++ and Ô++childÔ++ 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. 2/3, 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 Ô++expectÔ++ refugee applicants to Ô++co-operate in their own protectionÔ++ 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 Ô++choiceÔ++. 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 applicantÔ++s 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 Ô++gaynessÔ++ 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 Ô++fast-trackÔ++ 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. 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 fathersÔ++ 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, '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. & 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 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. 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. 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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Britain s 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. 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 women s lives. The article argues that the representation of lesbian desire in all three tales is truly radical in that it acts to dissolve unequal power dyads, although it also comes to question the extent to which it is possible, even in fiction, to sustain such rupture in the face of dominant cultural imperatives to re-capture and domesticate homo-normative images.

Millbank, J. & 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. 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.

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.

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, '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. 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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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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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. 2006, 'Areas of Federal Law that Exclude Same Sex Couples and Families', Human Rights and Equal Opportunity Commission, Australia, pp. 1-131.
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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. 2003, 'Darling, Please Sign This Form: A Report on the Practice of Third Party Guarantees in New South Wales', NSW Law Reform Commission, Sydney, Australia, pp. 1-182.
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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.