University of Western Australia Law Review
- Nbr. 48-1, November 2020
- Nbr. 47-2, April 2020
- Nbr. 47-1, January 2020
- Nbr. 46-2, November 2019
- Nbr. 46-1, September 2019
- Nbr. 45-2, July 2019
- Nbr. 45-1, June 2019
- Nbr. 44-2, August 2018
- Nbr. 44-1, August 2018
- Nbr. 43-2, March 2018
- Nbr. 43-1, January 2018
- Nbr. 42-2, October 2017
- Nbr. 42-1, May 2017
- Nbr. 41-2, January 2017
- Nbr. 41-1, November 2016
- Nbr. 40-2, September 2016
- Nbr. 40-1, December 2015
- Nbr. 39-2, September 2015
- Nbr. 39-1, June 2015
- 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
- Rights of nature as a response to the Anthropocene
- Disaster Risk Reduction, Vulnerability and the Law: A Case for Including Animals
The 2009 Black Saturday Bushfires revealed animals' profound vulnerability to natural hazards. Since then, multiple Australian states have introduced planning instruments to improve outcomes for animals in disasters. While a welcome trend, these instruments primarily focus on the acute phases of emergency preparedness and response. However, the disaster management cycle is broader than this, commencing with prevention and mitigation. Recognising that action early in the cycle is crucial, international instruments emphasise pre-emptive disaster risk reduction measures. This article contends that animals' vulnerability to disasters, as affirmed in the 2019-2020 Australian Bushfires, necessitates measures targeted at reducing their disaster risk
- Law, Interdisciplinarity and 'Wicked' Problems
This article argues that law, as a discipline, and regulation can contribute to the resolution of 'wicked' problems, such as agricultural diffuse source pollution, but that it necessitates an integration of other disciplines. While interdisciplinarity is not foreign to law, it, largely, fails to engage with theoretical frameworks and methodology to facilitate and ensure the integrity of such research
- Statues and status: The legal geography of landscape values and belonging
This article concerns a conflict over a statue, built in the Margaret River wine region, in contravention of the Planning and Development Act 2005 (WA). The statue was granted retrospective approval by the state tribunal. However, throughout and following the controversy, the legal geographies of the statue and the landscape became contested. It was framed by disagreement about the appropriateness of the statue, and the values and role of community members in defining the landscape
- 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
- The Good, the Bad and the Unhealthy: An Assessment of Australia's Compliance with the International Right to Health
The understanding of the international right to health has flourished with the content of the right being detailed in Article 12 of the ICESCR. Despite the wide spread adoption of the ICESCR, few countries look to international standards when making domestic health care decisions. This paper seeks...
- Claims for the value of the lost contractual performance
It is often said that contractual damages awards compensate the promisee for loss caused by breach. Statements like this are indeterminate because they leave unspecified whether such awards aim merely to make good some of the eventual deterioration in the promisee's balance sheet position...
- Protecting Your Culinary Creation and Eating it Too: An Exploration into How Australian Copyright Law Can and Should Expand its Menu to Embrace Culinary Works
In a modern gastronomic culture driven by multi-dimensional sensory creativity, chefs who invest significant intellectual effort into creating aesthetically stimulating works should no longer be excluded from formal intellectual property protection. Culinary professionals who produce original...
- The Maker Movement: Copyright Law, Remix Culture And 3D Printing
- Gender Neutrality and the Definition of Rape: Challenging the Law's Response to Sexual Violence and Non-Normative Bodies
In 2005 the legislature of Aotearoa New Zealand chose for the second time, the first occurring in 1986, to retain the offence of rape as one of the ways in which the crime of sexual violation may be committed. The current definition of rape means that only those with a penis can be guilty of this...
- The curious case of ISDS arbitration involving Australia and New Zealand
Criticism of investor-state dispute settlement (ISDS) has intensified as the number of cases and the range of affected states have grown. This has prompted a range of reform initiatives aimed at both ISDS and the investment treaty system more generally. Given their close ties and common interests,...
- Sharpening the Learning Curve: Lessons from the Commonwealth Parliamentary Joint Committee of Intelligence and Security Review Experience of Five Important Aspects of Terrorism Laws
The rapid passage of four tranches of far reaching Commonwealth terrorism law has highlighted the review role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its interactions with and influence over legislative process. This article focuses on five specific legislative ...
- Can Promissory Estoppel be an Independent Source of Rights?
This article addresses persistent uncertainty in relation to the question, 'Can promissory estoppel be an independent source of rights under Australian law?' A split has developed between intermediate courts of appeals in some jurisdictions on this question. This article considers the operation of...
- Reigniting the Lamp: The Case for Including People who are Blind or Deaf as Jurors
This article presents the case for including people who are blind or deaf as jurors. It does so in the context of the High Court’s recent decision in Lyons v Queensland  HCA 38. We also consider the impact of the Convention on the Rights of People with Disabilities (CRPD), to which Australia...
- 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...