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
- 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
- Environmental, Planning and Climate Law in Queensland
- 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
- 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
- Legal Geography: perspectives and methods
- Introduction by Guest Editors
- 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,...
- 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 ...
- Legal Duties for Environmental Water Provisions in Western Australia
Western Australia has not delivered on its promises to make environmental water provisions (EWPs), including to restore environmentally sustainable flows of water to waterways and wetlands. WA has prioritised water supply for consumptive use under pressure from a growing population. Urban areas...
- 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...
- Children in Schools: The Battle Ground for Religious Belief
The best interests of the child is the fundamental cornerstone of law regulating the care and upbringing of children. What is looks like in relation to religion and education is contested. This paper explores the different approaches of the courts to religious expression in schools. While some...
- 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 -...
- 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...
- Indigenous land tenure reform, self-determination, and economic development: comparing Canada and Australia
In the last two decades, both the Australian and Canadian governments have introduced reforms to Indigenous land tenure. This article compares the most significant reform from each country: the First Nations Land Management Act in Canada and township leasing in Australia. The Canadian reforms...
- The Hard Problem of Legality
Does the Australian Constitution guarantee the rule of law? That is a hard question, and in this article, I seek to explain why. Put simply, the question is hard because our answer will depend on our broader theory of how to interpret a Constitution. If one commits to the theory of originalism, for ...
- Nationhood and Section 61 of the Constitution
This article explores the relationship between the nationhood power and s 61 of the Constitution. It argues that, in the majority of decided cases, the nationhood power has not supported the Commonwealth Government engaging in coercive activities that would have been denied to it at common law. The ...