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.

Oil, Gas and Energy Law

Comparing the Hydrogen Strategies of the EU, Germany, and Australia: Legal and Policy Issues

Author(s): James Prest

For hydrogen to assist in meeting ambitious decarbonisation goals, national law and policy has a central role. This article presents a critical analysis of Australian law and policy for hydrogen energy, by comparison with selected European jurisdictions. Existing energy policy literature describes divergent paradigms and pathways to hydrogen futures. Australia is a case study of policy conflict over competing methods of hydrogen production and their differing climate change implications.

Co-authors: J. Prest; J. Woodyatt; J.P.J. Pettit.

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Centre: CIPL

Research theme: Environmental Law, International Law

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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Centre: CIPL

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

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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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Centre: CIPL

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

The Future of Feed-In Tariffs

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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Centre: CIPL

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

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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Centre: CIPL

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

National Capital to Solar Capital, or Thinking Small and Imposing Premature Limits

Author(s): James Prest

The main point of my submission is that the Territory should avoid damaging its emerging renewable energy sector by prematurely imposing additional limitations on the scope and generosity of the FIT scheme created by the Act, either in the form of installed capacity limits or scheme caps.

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Centre: CLAH

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

The Australian Capital Territory and the Gungahlin Drive Freeway

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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Centre: CLAH

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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Centre:

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

The Muzzling of the Dingo Forest Mob

Author(s): James Prest

Article describes 1993 lawsuit in Supreme Court of NSW by Forestry Commission of NSW (Australia) against Helmut Aimann, Chris Sheed and other various anti-logging activists, including unnamed persons, seeking to restrain them from "trespassing" in a two publicly owned forests. Categorises this litigation as a SLAPP suit and provides a review of earlier Australian instances of litigation against public participation including against Greenpeace over Nufarm, and against the Aurora Hotel Action Group over demolition of heritage buildings in Adelaide.

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Centre:

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.

Read on SSRN

Centre:

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

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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Centre:

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

A Dangerous Obsession with Least Cost

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.

Read on SSRN

Centre: CIPL

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

Legislation to Encourage Renewable Energy Deployment: A Comparative Review

Author(s): James Prest

Increased pressure to implement timely and effective responses to mitigate global warming - arising from the 4th Assessment Report of the IPCC - has underlined the importance of reviewing laws for the deployment of renewable energy (RE). Although debate in Australia has recently advanced towards adoption of more ambitious targets for RE generation, it has focussed largely on laws that create a market in renewable energy certificates (RECS). The Commonwealth mandatory renewable energy target legislation is discussed in light of commitments to expand it to reach a target of 20% of Australia's electricity by 2020. Recent European experience suggests that a commitment to this single strategy could limit the development of the RE industry.

This paper reviews the alternative of Feed-in Tariff (FIT) laws, which require utilities to purchase at a set price the electricity generated by RE generators. In Australia the option of FIT laws has been largely overlooked, with the exception of SA, and with some steps also taken in the ACT, Victoria and Queensland. Yet FIT laws have been adopted by preference in more than 41 jurisdictions overseas. The SA law and the ACT Bill are at threat from promises to "cut red tape" and bring State based targets within a single national scheme.

Review of the European experience suggests that FIT laws have been more effective than RECs laws in three respects: capacity deployment, industry development, and in some cases, price reductions. This suggests that FIT laws should be considered as potentially a more effective means to expand RE generation capacity in Australia.

Given present Federal proposals for the national harmonisation of renewable energy laws, review of the international literature about the comparative effectiveness of various legislative models is vital. State targets are likely to be replaced with a single Commonwealth renewable energy target.

Arguments concerning the compatibility of renewable energy laws with the operation of a national emissions trading system effective from 2010 are considered. It is concluded that RE legislation will be necessary until 2025, contingent on the effectiveness of the carbon trading legislation. Arguments running counter to the proposal by the PM's Task Group on Emissions Trading (2007), that all RE legislation be repealed at Commonwealth and State level are also examined.

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Centre:

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

The Bald Hills Wind Farm Debacle

Author(s): James Prest

This Chapter describes the decision making of the former Commonwealth Environment Minister, Senator Ian Campbell, to refuse an application for approval of a large wind farm development under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The rejection of the Bald Hills wind farm was remarkable because the reason given for this decision to veto a renewable energy project promising considerable abatement of greenhouse emissions was to avoid the threat it was said to pose to the critically endangered orange-bellied parrot. The decision took participants in the wind energy industry by surprise. Other wind farms which had been subject to Commonwealth approval requirements had met little delay or obstruction.

The Chapter argues that the Bald Hills story says much about the Australian response to climate change. It provides a case study of Commonwealth decision making about a project with potential to reduce significant amounts of greenhouse gas emissions, in a situation where these benefits were juxtaposed with potential impacts on threatened biodiversity. It prompts many questions about the [former] Howard government’s legal and policy approach towards the energy supply challenges posed by climate change.

The Bald Hills story is best understood if we look beyond detailed scrutiny of the assessment process under Victorian and Commonwealth law, to review it in the broader landscape of recent decisions and policy regarding renewable energy. Crucial aspects of this context include the Federal government’s decision not to expand the Mandatory Renewable Energy Target, as well as Ministerial attempts to block the Denmark community wind farm in Western Australia, and the proposal for a National Code for Wind Farms which would have introduced additional scope for the Commonwealth to scrutinise wind energy because of local opposition. This context gives a more complete picture of recent Commonwealth decision making on renewable energy.

What does the Bald Hills incident tell us about the present state of climate law in Australia, particularly at the Commonwealth level? While the government desires to present the EPBC Act as “a world-class and innovative piece of environmental legislation”, a law that “has established Australia’s place as a world-leader in environmental legislation” the barest review of the EPBC Act indicates that it does little to directly tackle the question of climate change. The Bald Hills incident is just one illustration. In particular, it draws our attention to the fact that the EPBC Act does little to promote sustainable development by encouraging renewable energy installations. In terms of greenhouse gas abatement, the Act does nothing to require a decision maker to consider the positive benefits of a development. In fact, at present, it prohibits a decision maker from taking into account positive environmental benefits of a development. In deciding whether or not to approve a project that is subject to the Act, the Minister is specifically prohibited from considering any matters other than the controlling provision and the catch-all of “economic and social factors”. (see s.136(5)). Thus nothing in federal planning law exists to ensure that the benefits of renewable energy facilities in terms of greenhouse gas abatement are taken into account in the approval decision making process. Surely we must ask whether the EPBC Act is adequate given present scientific information and modelling about the consequences of overly cautious responses to climate change.

The Bald Hills incident also illustrates the broad discretion available to the Environment Minister in making decisions under the EPBC Act. Questions were raised about the impact of the proposed wind farm on endangered species. The problem is not that the Act enabled the Minister to examine the potential risk to the orange-bellied parrot. The argument is not that all projects with potential to reduce greenhouse emissions should be approved, regardless of their impact on threatened biodiversity. However the flaw in the Minister’s decision making was that an extremely remote possibility of significant impact on a threatened bird - the orange bellied parrot - was given weight out of all proportion to its true significance.

The difficulty is with politicisation of the planning and environmental approval decision-making process. Nevertheless, the court outcome, in which the matter was settled by consent, due to the weakness of the Minister’s position shows that inappropriate ministerial decision-making can in some cases be constrained by resort to the administrative law system. In this instance, review in the Federal Court was effective in having politicised decision-making overturned. The story underlines the need to retain access to the courts to litigate to ensure compliance with the law in administrative decision making. The EPBC amendments of December 2006 which removed pro-participation provisions, reintroducing the probability that third party litigants could be required to provide an undertaking as to damages when seeking an injunction, represent the reintroduction of a barrier that would prevent access to the courts to review suspect decision making.

The Bald Hills incident raises broader questions about the adequacy of Australian government’s legislative response to climate change. Energy law does not exist in a political vacuum. It articulates the policy intentions of the legislature and the government which dominates it. The range of Ministerial comments about wind power, when combined with Senator Campbell’s comments to the Estimates Committee reproduced at the beginning of this chapter, indicate the Howard government’s indifferent, ambivalent and at times antagonistic approach towards renewable energy. In Australia, we have only moved very slowly towards the introduction of a body of sustainable energy law.

Read on SSRN

Centre: CIPL

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

Council Officer Prosecuted for Biodiversity Offences: Garrett v. Freeman

Author(s): James Prest

Analysis of recent series of litigation involving questions of potential criminal liability for environmental offences under New South Wales law of damage to the habitat of threatened species. Prosecution sought to apply the criminal law to the actions of a public official, a local government public works officer.

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Centre: CCL

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

The Forgotten Forests: The Regulation of Forestry on Private Land in New South Wales 1997-2002

Author(s): James Prest

The question of the management of native forests on privately held land is a neglected aspect of off-reserve biodiversity conservation. Research was conducted into the administration of environmental laws applying to private native forestry (PNF) in NSW between 1997-2002 to discern the extent of regulated and unregulated activity. Research also aimed to investigate broad patterns of administrative behavior in implementing relevant legislation. The implementation of the Native Vegetation Conservation Act 1997 and the Threatened Species Conservation Act 1995 in relation to PNF were examined in particular. Failures of the legislative framework were revealed. The applicable law was found to be complex, and highly fragmented, with responsibility spread across many agencies. Some regulatory failures also stemmed from inadequate implementation of the legislation. It was found that PNF was infrequently regulated under the Native Vegetation Conservation Act 1997, primarily due to a problematic exemption for PNF. It was infrequently regulated by local government under Local Environment Plans. The safety net mechanism of licensing under the Threatened Species Conservation Act 1995 not often applied. These findings suggest a failure of the law to ensure ecologically sustainable forest management in NSW private forests. While the results suggest regulatory failure, they do not constitute grounds for wholesale replacement of regulation with self-regulation and other instruments.

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Centre:

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

Licensed to Kill : Endangered Fauna Licensing Under the National Parks & Wildlife Act 1974 (NSW) Between 1991-1995

Author(s): James Prest

The focus of this paper is on the effectiveness of administration of the Endangered Fauna (Interim Protection) Act 1991 by the National Parks and Wildlife Service of NSW, Australia, between 1991 and 1995, particularly in regulating the effects on biodiversity of logging operations in NSW publicly owned native forests. A key mechanism of the Act was its requirement that those seeking to significantly modify the habitat of endangered fauna seek a licence to take or kill, and that they prepare a Fauna Impact Statement (FIS) justifying their activity. This historical and empirical study focuses on the licensing practices of the NPWS considering temporary licensing, licence variations and the use of authorities in place of licensing. This study presents previously unpublished data on the operation of the licensing system. 95% of the licences granted to the Forestry Commission were temporary licences. Thus the Forestry Commission held those licences without ever having been required to complete FIS and without the threat of public appeal against decisions to grant general licences. The paper examines the reasons for accommodatory approaches by regulators such as the NPWS, and finds that some of these factors were present in some instances of particular aspects of the implementation of the Act. These factors included lack of agency resources, imbalance of power and insecure basis of regulatory agency authority, avoidance of perceived economic dislocation, lack of public support, and the undermining effect of plans for new legislation. Examination of the history of operation of these EFIP Act provides an excellent vantage point from which to examine other biodiversity legislation. Australian biodiversity and ecosystems are unlikely to be protected by merely enacting legislation which bears the name "endangered species protection" if attention is not paid to the issue of implementation. The drafters of any new legislation need to consider how political pressure will tend to result in the misuse of specific provisions. The paper closes with a historical account of the circumstances surrounding the enactment of the EFIP Act, arising from the Corkill litigation over logging of Chaelundi State Forest.

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Centre:

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

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team