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
- 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
- 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
- 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...
- From Down Under All the Way to the European Union - A Comparative Legal Analysis of the Enforcement of Australian Exemplary Damages in the EU
When an Australian court grants exemplary damages, the defendant must pay this amount to the plaintiff. If the defendant is unwilling to pay, the judgment needs to be enforced against his assets. However, if the debtor has no or insufficient assets in Australia, enforcement might have to take place ...
- 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 ...
- 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 Real Price of Paying Ransoms: The Australian Legal Position Concerning Ransom Payments to Terrorist Organisations
- 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...
- The Admissibility and Use of Evidence of Prior Negotiations in Modern Contract Interpretation
This article examines the juridical approach in Australia to ‘the rule’ that evidence of prior negotiations is excluded as an aid to the interpretation of written commercial contracts. It analyses three fundamental problems with the rule. First, the unclear bounds of the formulation of the rule and ...
- 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 ...
- London & New Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd: Is It Authority That Directors Can Compete with the Company?
There is confusion concerning the ability of directors to compete with the company. There is uncertainty about whether a different rule or a relaxed application of the conflict rule is applied to directors competing with the company in contrast to other fiduciaries, such as trustees personally...
- 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...