University of Western Australia Law Review

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Latest documents

• 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

Featured documents

• 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...

• Ministerial Advisers and the Australian Constitution

  Ministerial advisers are relatively new institutional actors within the Commonwealth Executive. Ministerial advisers were not envisaged at federation and pose a challenge to constitutional theory, which largely focuses on the position of public servants and Ministers. This article analyses the...

• 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...

• 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...

• 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 Problem with Amann: Would an Agreement-Centred Approach to Remoteness Benefit Australian Jurisprudence?

  The agreement-centred approach to assessing damages for breach of contract formulated by Lord Hoffmann in The Achilleas dovetails neatly with the modern approach to contractual interpretation. In this paper, I will seek to analyse and expose what I respectfully submit are shortcomings in the joint...

• 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 ...

• Preventing Justice? A Principled Approach to the Commonwealth Control Order Regime

  This article analyses the four principles of counter-terrorism preventive justice that United Kingdom academics Andrew Ashworth and Lucia Zedner recommended in their seminal 2014 book, Preventive Justice. It then applies the principles to the specific context of the Commonwealth's counter-terrorism ...