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
- Introduction by Guest Editors
- 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
- 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
- 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
- Water Regulation and coal seam gas
- 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
- Rights of nature as a response to the Anthropocene
- 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
- 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
- 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
- Regulating Disruption and Development of the Disruption Calculus
Regulatory disruption is the process where new developments in technology, systems or practice disconnect regulators from either their supporting law framework or the objectives they set out to achieve. Once disconnection is achieved, regulators become more and more irrelevant to and distanced from ...
- The Meaning of Knowledge as a Criminal Fault Element: Is to Know to Believe?
A common mens rea state in New Zealand’s statutory criminal law is that conduct occur with knowledge of a circumstance or as to an outcome. In the absence of any statutory definition of ‘knowledge’, the courts have suggested that a belief – identified as a lesser state of certainty of awareness -...
- Introduction: Law and Politics of Freedom of Religion in Comparative Perspective
- Race, Colonialism and Technologies of Mobility in Kalgoorlie
This article argues that the legal texts that record the death of Indigenous boy Elijah Doughty in a reserve in Kalgoorlie-Boulder in 2016 highlights the intersections of technologies of mobility within the Australian colonial project. Elijah died when the small motorcycle he was riding was run...
- 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 ...
- 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 ...
- 2018 Winterton Lecture: Constitutional interpretation
- The Development Objective as an Imperative in Interpretation Of International Investment Agreements
International investment agreements (IIAs) are entered into on the supposition that they attract investment and that investment leads to development. This reason accounts in part for the entering into force of 3320 IIAs by the end of 2017. Yet investor-state tribunals and scholars are divided on...
- But Wait...There's More: The Ongoing Complexities of Section 44(I)
This article discusses a number of unexplored aspects of section 44(i) and highlights some potential scenarios that may arise. In particular, the paper explores the possibility that as many as 26 Parliamentarians in the 45th Australian Parliament may be disqualified because of their status as...
- 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...