University of Western Australia Law Review
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- The legal geographies of the troposphere
Legal geographies of space, time and the material world have occupied significant attention from scholars engaged in legal geography endeavours. Australia and the Asia-Pacific region's legal geography scholarship has shown a predisposition towards engagement with environmental issues and the concomitant materialities. Increasingly, there is recognition that these materialities are not always visible to the human eye, and one such materiality that has to date been overlooked is that of the troposphere. As a previously invisibilised space most recently made visible due to the impacts of a climate-changed world - namely, bushfire-induced smoke haze - it is argued that the troposphere is the next frontier for human and more-than human activity and one that warrants explicit theoretical and empirical scholarly engagement. In addition, explicit engagement at the law-geography nexus is essential for forward-looking environmentally concerned scholarship, for which the relationship between environmental issues and materiality is now of fundamental importance to law and to societies, exacerbated by our local, national and global experiences of a world affected by climate change. Exploring this the troposphere through the lens of legal geography enables a grounded understanding of the theoretical challenges and opportunities within this increasingly visibilised space of human activity and environmental impact. In light of the role of property rights in the troposphere, this paper examines tropospheric incursions in the context of volumetric urbanism to illustrate the utility of legal geography theory, and to illustrate the legal and social importance of an empirically under-explored space
- Opportunities for 'next generation' climate litigation in Western Australia
An international wave of novel or "next generation" climate litigation is emerging, which embraces innovative legal arguments to respond to climate change through the courts. This article analyses future prospects for novel climate change litigation in Western Australia, focusing on claims in tort law and corporate law. It highlights key issues and opportunities associated with these claims in Western Australia, and how they may be overcome with the assistance of climate attribution science
- Addressing carbon and climate change through environmental impact assessment: A case study of Western Australian LNG and the 'Burrup Hub' project
Where specific climate change policy and legal frameworks are lacking, environmental impact assessment (EIA) processes are being relied upon to understand and address climate impacts of major projects. This paper examines the adequacy and outcomes of State and Commonwealth EIA processes as applied to the rapidly expanding liquified natural gas (LNG) industry and the "Burrup Hub" development. It offers practical and legal perspectives on how EIA can (and must) better address carbon and climate change
- Germany's Climate Change Agenda: A Critical Overview
Germany's economy is the fourth-largest economy behind the US, China, and Japan, with a strong industrial base and many energy-intensive industries. Germany has been and continues to be a significant emitter of greenhouse gases (GHG). Germany has also taken on a leadership role in supporting emission reductions internationally, e.g., within the UNFCCC framework and the European Union (EU), which plays a significant role both internationally and domestically. Germany's political intentions and ambitious political goals rested on a somewhat fragmented and relatively thin legal foundation. This changed towards the end of 2019 with the passage of the Federal Climate Change Act (FCCA), which entered into force in December 2019. This framework act spells out the long-term goal of GHG-neutrality by 2050 and a 55% GHG reduction target by 2030. The FCAA must be read in conjunction with the Climate Action Plan 2050 and the Climate Protection Program 2030, which can be regarded as planning tools. Additional challenges arise from the fact that Germany has decided to phase out coal as a fuel for energy generation over the coming two decades and to take all existing nuclear power plants offthe gridin the veryshort term. The paper attempts to explain and critically analyze Germany's legal and political framework dealing with climate change with an emphasis on the difficulties of very long-term policy planning in the volatile political and economic environment with often competing interests
- How does the Land and Environment Court clinical program for law students facilitate access to environmental justice?
The Land and Environment Court Clinic is a collaborative clinical placement initiative for Macquarie University law students to develop their practical legal skills and understanding of their legal and ethical obligations towards the court, their clients, their peers and the community. This article discusses the program and considers its benefits not only for students, but in the broader sense of assisting the community, particularly the most vulnerable members, with access to environmental justice
- Legal Geography: perspectives and methods
- Water Regulation and coal seam gas
- Environmental, Planning and Climate Law in Queensland
- Introduction by Guest Editors
- Rights, reasons, and international norms
This article focuses on access to environmental justice. In particular, the article focuses on the right to remedy and redress articulated in Principle 10 of the Rio Declaration 1992 and the effective transposition of the principle in domestic law by interrogating three recent decisions from the senior courts in England and Wales, Ireland, and New Zealand concerning the reasons given for environmental decisions. These decisions provide substantive justification for reasoned decision-making so that interested persons are given the human dignity of knowing what was decided and why, for viewing this question from the perspective of a person who did not participate in the proceedings, for avoiding judicial deference on appeal by requiring that original decisions should be objectively reasonable and based on sound evidence, and (as a matter of natural justice) focusing remedial discretion on quashing defective decisions
Featured documents
- Will Australian Courts Move to a Caribbean Beat? The Question of a State's Standing to Sue in the Tort of Misfeasance in Public Office
It is unclear whether an Australian body politic could ever gain standing to sue in the tort of misfeasance in public office. Throughout the common law world, the question of a state’s standing to sue in the tort has only arisen for judicial determination in the State of Belize. The Caribbean Court ...
- Criminal Prosecutions in Western Australia: A View from the Nineteenth Century
Many scholars have analysed the differences between criminal trials in common and civil law systems. The adversarial trial in England, Australia and elsewhere provides a contrast with the inquisitorial process found in continental Europe and other civil law countries. Legal history adds another...
- It's time exemplary damages were part of the judicial armory in contract
This article challenges the traditional approach that exemplary damages are unavailable for breach of contract. Given the exceptional nature and infrequent use of the remedy, the principles relating to exemplary damages are often misunderstood. A survey of key arguments in support of the...
- Extradition from A to Z: Assange, Zentai and the Challenge of Interpreting International Obligation
One of Professor Peter Johnston’s main areas of expertise was the law of extradition. Notably, he appeared before the High Court of Australia in the Zentai case, concerning the request for extradition of an alleged war criminal. His interest in the law of extradition was, furthermore, wideranging...
- Good faith and Post-Repudiation Conduct
Professor J W Carter recently wrote: 'Lord Reid's legitimate interest qualification has always been a puzzle' ((2012) 128 Law Quarterly Review 490, 491). The qualification Professor Carter is referring to allows a non-repudiating party to a contract to continue performance of the contract if i) the ...
- Accessibility to the law - the contribution of super-tribunals to fairness and simplicity in the Australian legal landscape
If the SAT has the capacity for determining both merits and legality issues, it represents an attractive development in Australian, non- Commonwealth, tribunal jurisprudence. Peter Johnston (2005)...
- Investor-State Dispute Settlement: The Evolving Balance Between Investor Protection and State Sovereignty
This paper analyses the recent evolution of Investor-State Dispute Settlement ('ISDS') and asks whether it strikes an appropriate balance between investor protection and State sovereignty. The paper identifies three major points of contention on the impact of ISDS on State sovereignty – the...
- State Consent and ?Official Acts': Clearing the Muddied Waters of Immunity Ratione Materiae for International Crimes
Jurisdictional immunities – and particularly immunity ratione materiae – have stifled the ability of municipal courts to hold individual officials accountable for their actions under international human rights and international criminal law. This has resulted in significant confusion surrounding...
- The Trendtex Principle in Australian Law: Context and Recent Developments
The Trendtex principle provides that a right to litigate can be assigned when the assignee has a genuine commercial interest in the litigation. The principle finds it origins in the English decision of Trendtex Trading Corporation v Credit Suisse1 and its application in Australia has recently been...
- The Taxation of Native Title Payments for Indigenous Groups and Resource Proponents: Convergence, Divergence and Reform
For many years following the introduction of the Native Title Act 1993 (Cth), when native title agreements were a new concept with few precedents, parties generally paid limited attention to taxation issues, or tried to obviate the need to do so. Over the last decade, awareness of the significance...
