Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Australian Renewable Energy Law: Carbon Lock-In or Clean Energy Transition? The Pursuit of Policy Stability and Energy Security at Higher Levels of Renewable Generation

Author(s): James Prest

This article critically analyses recent developments in Australia’s renewable energy law and policy. It identifies seven retrograde steps taken in energy and climate law in Australia in the last five years. Barriers to clean energy law - in the form of recurring narratives employed against the rise of renewable energy across Australia - are examined. Increased levels of renewable energy are portrayed by opponents as a threat to the security and reliability of electricity supply. Yet, the nation is currently experiencing a major renewable energy investment boom, supported by regional policy initiatives that are driving innovation, most recently in energy storage.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

The Future of Australia's Federal Renewable Energy Law

Author(s): James Prest

This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Beyond Transnational Advocacy: Lessons from Engagement of Myanmar Indigenous Peoples with the UN Human Rights Council Universal Periodic Review

Author(s): Jonathan Liljeblad

On July 21, 2015, the Coalition of Indigenous Peoples in Myanmar/Burma (CIPM), a group representing 24 indigenous rights organizations in Myanmar, announced they were submitting a report to the Universal Periodic Review (UPR) session on Myanmar. The use of the UPR represents an attempt by Myanmar’s indigenous groups to address a variety of issues not traditionally associated with human rights, among them: environmental grievances associated with alleged government seizure of land, deforestation, pollution, and suppression of land-use rights.

The use of the UPR also illustrates an indigenous strategy of reaching up to an international level in order to address problems at a local one: the CIPM resorted to the UPR in hopes of mobilizing pressure to change the behavior of the Myanmar government. This article explores the experiences of the CIPM with the UPR to draw lessons for other groups that seek to use the UPR to advance their interests.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

National Human Rights Institutions (NHRIs) and the Hazards of Being the Nexus between Global and Local: A Case Study of the Myanmar National Human Rights Commission (MNHRC) in the Maelstrom of Public Controversy

Author(s): Jonathan Liljeblad

National Human Rights Institutions (NHRIs), as set forth in the 1993 Paris Principles, are expected to be independent bodies that promote and monitor state implementation of international human rights standards. In such a role, an individual NHRI bridges the gap between “international human rights obligations and actual enjoyment of human rights on the ground” and thereby operates as a nexus between a global human rights system and local conditions. A location at the nexus has the potential to offer opportunities to exercise powers as an intermediary on behalf of human rights in terms of enabling engagement between global and local levels. The analysis, however, draws upon the experiences of the Myanmar National Human Rights Commission (MNHRC) to assert that there are limits for institutions at the nexus between global and local. Using a public controversy from 2016 that questioned the legitimacy of the MNHRC and threatened its existence as an NHRI, the analysis seeks to improve understanding of the risks facing NHRIs and add insight into the ways contextual politics challenge expectations for NHRIs to operate as human rights intermediaries.

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Centre: CIPL

Research theme: Environmental Law, Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development

Tolley's International Taxation of Upstream Oil and Gas

Tolley's International Taxation of Upstream Oil and Gas

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The scope of this title is to introduce and review significant international tax issues for upstream oil and gas operations. The book introduces and explains practical upstream tax issues, with an emphasis on tax risk management and related tax planning. Readers will develop skills in identifying tax exposures and opportunities, managing tax negotiations, and applying tax planning solutions and is intended to benefit accountants, lawyers, economists, financial managers and government officials. The book aims to be the first choice for the new starter in upstream oil and gas taxation. It also aims to be the best introduction of international tax issues relating to upstream oil and gas, enabling the reader to analyse and understand new situations and circumstances, rather than an encyclopaedic reference of tax issues.

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Research theme: Administrative Law, Environmental Law, International Law

International Law: Cases and Materials with Australian Perspectives

International Law: Cases and Materials with Australian Perspectives - Second Edition

Author(s): Donald Rothwell, Stuart B Kaye, Afshin Akhtarkhavari, Ruth Davis

International Law: Cases and Materials with Australian Perspectives is the authoritative textbook for Australian international law students. Written by a team of experts, it examines how international law is developed, implemented and interpreted, and features comprehensive commentary throughout. All core areas of the law are covered, with chapters on human rights, law of the sea, international environmental law and enforcement of international law. Cases and treaties are dissected to highlight the key principles, rules and distinctive learning points. This new edition has been thoroughly updated in line with recent developments in the field and includes a new chapter on the use of force, as well as expanded content on the enforcement of international law, including sanctions, law enforcement against pirates and the 2011 Libyan conflict. International Law provides clear and rigorous analysis and is an indispensable resource for law students.

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Centre: CIPL

Research theme: Environmental Law, International Law

Rothwell, The Law of the Sea

The law of the sea and the polar regions: Interactions between global and regional regimes

Editor(s): Donald Rothwell, Erik J. Molenaar, Alex G Oude Elferink

The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes analyzes the contemporary Law of the Sea and related areas of international law in Antarctica and the Arctic, with a particular focus upon the interaction of global and regional regimes. The global component of the international law of the sea - principally the United Nations Convention on the Law of the Sea - applies to the entire marine domain in both polar regions but explicitly requires regional implementation or acknowledges its usefulness. This volume  examines regional regimes for the Arctic and Antarctic on science, maritime security, fisheries and shipping by means of common research questions; thus enabling an overall synthesis and identification of trends, differences and similarities.

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Centre: CIPL

Research theme: Environmental Law, International Law

Mitigating Wildfire Devastation in Policy and in Practice: Lessons from the Australian Experience

Author(s): Michael Eburn

Disaster law is a nascent field of study in Australia. Research on legal issues that impact upon hazard resilience has been pursued by scholars in individual areas of study; planning law, environmental law, tort law, constitutional law etc. The risk of climate change and developing scholarship in the area of climate change adaptation has seen an increasing realisation that if we are to build resilient communities these areas of law must be considered as a whole.

In Australia, the Bushfire Cooperative Research Centre (CRC) has taken the initiative in this regard. The CRC is funding a joint research project on Mainstreaming Fire and Emergency Management across Legal and Policy Sectors: Joint Research and Policy Learning. This research is a collaborative project between the Australian National University (law and policy); the University of Canberra (urban and regional planning) and the RMIT (Royal Melbourne Institute of Technology) University (sharing responsibility).

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Centre: CMSL

Research theme: Criminal Law, Environmental Law, Health, Law and Bioethics, Law, Governance and Development, Military & Security Law

The Future of Feed-In Tariffs: Capacity Caps, Scheme Closures and Looming Grid Parity

Author(s): James Prest

This article examines recent developments in feed-in tariff (FIT) law for solar photovoltaic (PV) electricity generation in selected jurisdictions. In particular, legal and policy issues surrounding capacity capping and closure of FIT schemes to new entrants are examined at a conceptual level. The need for downward adjustment of FIT rates is discussed. The application of capacity caps in Australia, Spain, France, Czech Republic and the UK is examined. Characteristics and examples of best-practice and worst-practice amendment of FIT laws for solar PV are identified. It is found that caps are a blunt instrument for constraining the impact of FIT on electricity prices. The alternative of tariff degression is discussed.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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Environmental Law

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This text highlights the facts, issue and decision in each case so that the principles can be readily understood and memorised and trends in the development of case law on environmental law can be readily identified. The cases have been selected to align with current teaching in this area and their national focus makes the book suitable for all Australian jurisdictions. An excellent study and revision resource for students, this book is a great quick reference for anyone wanting to understand the case law in this area.

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Research theme: Environmental Law

Chisholm, Understanding Law

Understanding law: an introduction to Australia's legal system (8th ed)

Author(s): Richard Chisholm, Garth Nettheim

Written by highly qualified authors, the direct, clear and often humorous style of this book will help readers understand how the law relates to real issues and controversies. The institutions and sources of law in our legal system are clearly explained, including the roles of lawyers, the courts and the legislature. Illustrative examples and a discussion of actual cases enable students and other citizens to engage with topics such as historical basis of Australian law, Australian law and international law, human rights, procedural fairness and the notions of law and morality. New stimulus questions and activities included in this 8th edition invite the reader to consider the interrelationship of law, tradition and social values. Understanding Law is a perfect introduction to the law for students engaging with legal studies and for other academic disciplines at tertiary and senior secondary levels. It is an ideal starting point for any Australian interested in learning more about their legal system.

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Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Environmental Law, Human Rights Law and Policy, International Law, Law and Gender, Law and Social Justice

Forests Law

Author(s): James Prest

This Chapter provides an overview of the law applicable to forests and forestry in the Australian State of New South Wales (NSW). It provides a detailed explanation in plain english of the applicable Federal (Commonwealth) law and of the applicable NSW law. Federal topics covered include: Regional Forest Agreements under federal law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), international law applicable to forest management. NSW topics addressed include regulation on public land under Forestry Act 1916 and Forestry and National Parks Estate Act 1998, functions of the Forestry Commission, State Forests, other Crown timber lands, Timber reserves, revocation of State Forests, Forest management plans and zoning, NSW state forest agreements and integrated forestry operations approvals, modification of third party standing rules in regions subject to an IFOA, harvesting rules and offences, the Forest Practices Code, as well as other forms of Permits and Forest leases, including those relating to hunting in State Forests. The topic of plantation forestry and its regulation under the Plantations and Reafforestation Act 1999 and Code are addressed in detail. Law relating to water pollution and forestry, the use of chemicals in forests, and criminal and civil enforcement is also addressed. Questions of law applicable to carbon sequestration in forests and plantation are explained. The Chapter the explains the laws applicable to forestry on privately held lands - including application of the Native Vegetation Act 2003, the PNF Code of Practice, applicable local government law, water pollution law and profits a prendre. The chapter closes with discussion of Forestry certification schemes and questions of eligibility of forest biomass as feedstock for electricity generation under NSW and Commonwealth laws.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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Australian Coastal and Marine Law

Editor(s): Donald Rothwell, Rachel Baird

This book is a comprehensive guide to Australian coastal and marine law. Since the landmark enactment of the Seas and Submerged Lands Act 1973 (Cth), and the subsequent High Court decision in NSW v Commonwealth, there have been rapid developments in Australian coastal and marine law and policy. The Offshore Constitutional Settlement paved the way for offshore management between the Commonwealth, States and the Northern Territory, and from this foundation a raft of new environmental laws were adopted in the 1980s and 1990s, often promoted by international developments such as the 1982 United Nations Convention on the Law of the Sea, or through new marine pollution conventions adopted by the International Maritime Organisation. The book reflects upon how Australian law regulates and manages a range of environmental issues which arise in the coastal zone and the marine environment. 

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Research theme: Environmental Law, Regulatory Law and Policy

The Australian Capital Territory and the Gungahlin Drive Freeway

Author(s): James Prest

Provides an account of the application of ACT and Commonwealth (i.e. federal) environmental impact assessment law, land use planning law, and nature reserves law in the case of the approval of the Gungahlin Drive Extension freeway in the ACT. This freeway was built through several prized urban bushland reserves in the ACT after a campaign to Save the Ridge and its points about the application of ACT environmental and planning laws were overriden with 'special' legislation in the form of the GDE Authorisation Act 2004. Chapter describes litigation over the freeway project in ACT and Federal Courts which was heard largely in 2004 and 2005. Questions of the subsequent reform (or regression?) of ACT law including the Planning and Development Act 2007 are considered. This case study is used as the starting point of a broader examination of defects in planning and development law in the ACT and the broader role of special legislation to facilitate major projects in Australian environmental law.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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Adaptation to Climate Change: Law and policy

Editor(s): Andrew Macintosh, Tim Bonyhady, Jan McDonald,

While climate policy has focused overwhelmingly on the science and on reducing emissions, policy makers are increasingly focused on how to adapt to changes are already “locked in”, changes that will bring significant social economic and environmental impacts. Adaptation will require technological innovation as well as behavioural and attitudinal change. This book covers the legal dimensions of adaptation and addresses challenges across sector interests. It considers whether existing regulatory and governance frameworks are supportive, adaptable or barriers to necessary change. The authors cover the key issues: sea level rise, planning; water security; climate justice; conservation regimes; the role of the courts; insurance; compensation; and the law of disasters.

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Research theme: Environmental Law

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Mills, Mines and Other Controversies: The Environmental Assessment of Major Projects

Editor(s): Andrew Macintosh, Tim Bonyhady

Major developments have the potential to generate significant economic benefit and substantial environmental damage – and major political controversies as local, State and federal governments become involved. Process can fracture all too easily as governments come under fierce and competing pressures. This book is concerned with whether environmental impact assessment is an effective vehicle for protecting the Australian environment when major projects are in play. It scrutinises a major development in each State and territory and shows what happened and why things happened, which processes worked and which didn’t, and the roles of the different layers of government. The case studies include the headline projects such as the Gunns Mill in the Tamar Valley, Queensland’s Traveston Dam, the dredging of Port Phillip Bay, the expansion of the McArthur River mine and the Gorgon Gas development of Barrow Island.

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Research theme: Environmental Law

Australia

Author(s): James Prest

This Chapter surveys the three different models of wilderness legislation in Australia: comprehensive legislation, minimalist legislation, and non-existent, and provides a detailed summary of the statutory provisions and their intent. The Chapter places the discussion within the context of Australian protected areas legislation and policy and within a context of discussion of biodiversity conservation objectives. It reviews statutory definitions of wilderness as well as provisions for declaration and revocation of areas. It progresses to a discussion of statutory wilderness management principles; prohibited uses; and the access of extractive industries to wilderness areas. It argues that the future of wilderness conservation in Australia must be seen in the context of three key issues concerning the protected areas system: first, the role of wilderness within protected areas policy, second, difficulties with the implementation of wilderness and protected areas legislation, and third, the involvement of indigenous Australians in the management of wilderness and other protected areas. The observation is made that the Australian experience with wilderness legislation has involved questions of implementation – such as a lack of resources for on-the-ground management, and delays in declaration of wilderness areas – to an extent that such questions are of equal if not greater importance than questions of the adequacy of legislation. It is further argued that there is a strong scientific foundation for the view that the protection of wilderness can make substantial contributions to biodiversity conservation. The challenge will be to ensure the protection of areas that have not yet been subjected to significant disturbance by industrialized society, through the process of devising and revising management plans for protected areas, and by involving traditional owners and indigenous communities in the management process.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

A Dangerous Obsession with Least Cost? Climate Change, Renewable Energy Law and Emissions Trading

Author(s): James Prest

A common thread runs through current Australian debates over laws for emissions trading and renewable energy. It is a preoccupation with “least cost” abatement, the notion that only policies with the lowest short-run economy wide cost should be implemented, regardless of other considerations. The orthodoxy in Australian climate law and policy places great emphasis on asserting the superiority of market mechanisms. Both extended price support for renewable energy sources and direct regulation of emissions are viewed with suspicion.

Such discussion prompts us to ask whether there may be a strengthening rationale for more direct and “regulatory” approaches to carbon pollution, justified by reference to an alternative evaluation criterion – that of dependability. Perhaps our attention has strayed too far from the environmental effectiveness and timeliness of laws and policies, by emphasizing their cost. On the basis of this and other considerations, this Chapter asks whether the Australian faith in market mechanisms, and the promise to deliver solutions “at least cost”, conceals dangers inherent in oversimplifying the complexities of converting an entire economy away from reliance upon fossil fuels.

This Chapter reviews the arguments concerning the retention of renewable energy support laws alongside an ETS. It then proceeds to ask which type of renewable energy law is likely to prove superior, and why. In Australian debates over renewable energy law and policy, the same emphasis on “least cost” has led to a federal law based on tradeable green energy certificates (Renewable Energy (Electricity) Act 2000 (Cth)). Elements that such quantity-based renewables law has in common with carbon emissions trading are noted. This Chapter then considers the alternative of a price-based renewable energy support mechanism, very widely adopted in Europe, known as “feed-in laws”. Along the way it explores evidence and arguments that might lead us to question assumptions and beliefs about the superiority of tradeable permits and tradeable renewable energy certificates.

Although the Chapter touches upon the interactions between ETS’ and renewable energy laws, its core intention is to explore and investigate the implications of placing primacy on the objective of least cost abatement. Arising from that discussion some suggestions are made about the reasons for opposition to the alternative model of feed-in laws.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Sustainability and the Law: Climate Change, Energy and Urban Issues

Author(s): James Prest

This chapter describes ACT laws which require action towards improved environmental sustainability. It examines provisions to reduce carbon emissions and energy use, improve energy, transport and water efficiency, and requirements to consider the environment in decision making.

The Chapter covers Planning and Development Act 2007 (ACT), Environment Protection Act 1997, Electricity (National Scheme) Act 1997, Utilities Act 2000, Weathering the Change: the ACT Climate Change Strategy 2007-2025, ACT Electricity (Greenhouse Gas Emissions) Act 2004, Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), Electricity Feed-in (Renewable Energy Premium) Act 2008, Solar access law, sustainability provisions in ACT Planning Law, Energy efficiency law including the Building Act 2004, Energy Star Ratings including Nationwide House Energy Rating Scheme, Building Sustainability Index (BASIX), energy efficiency performance ratings (EER) including EER and rental properties, Efficiency of Appliances. The Chapter also covers Planning law as it relates to urban water issues including Catchment protection, Water tanks, Water Efficiency and Labelling Standards (WELS).

The Chapter concludes by arguing that the ACT has a number of provisions scattered throughout the statute book which address the question of environmental sustainability, primarily through energy ratings, water efficiency measures and planning controls. However the extent to which these provisions might be said to provide a ‘best practice’ systematic and integrated framework for the attainment of improved levels of sustainability is certainly debateable. There is no overarching climate change response legislation, nor is there an overarching Sustainability Act which might require government decisions across portfolios to be made having regard to the principles of ESD.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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