Research theme: International Law

The purpose of this paper is dual, and it has to do with specificity. First, it aims to show that a “law and political economy” approach to international law has been and will be distinct from its US counterpart. To do so, it offers an overview of both the prevailing approaches to and critical engagements with the field. Having shown that neoliberal hegemony is upheld within international law by an admixture of heterogeneous modes of reasoning, the author proceed to argue that this heterogeneity also permeates critical scholarship. This heterogeneity has enabled critical approaches to flourish, but often to the detriment of a consistent, coherent, and purposeful engagement with political economy. The second aim is to show that Marxism offers a distinct and distinctly useful set of analytical tools for international law. Having offered an overview of existing strands of Marxist thought, the author also reflects on the work that remains to be done.

Research theme: International Law

How would a polycentric property system react to mass movements of people caused by escalating climate change? Drawing on multidisciplinary perspectives, the article suggests an analytical frame for polycentric property system responses to climate migration. The case study is Solomon Islands, a South Pacific state with high levels of environmental vulnerability, where people draw on various governance mechanisms to secure proprietary relationships with land. These governance mechanisms not only encompass property rights derived from the state, but also proprietary relationships secured through social norms, informal agreements, and acts of mutual coordination. The key argument is that governance mechanisms to secure property rights for climate migrants have absorptive limits that affect broader processes of adaptation to climate change. The heuristic of absorptive capacity provides a basis to consider adaptive property law for a future of climate migration.

Research theme: Law & Technology

This provocative book investigates the relationship between law and artificial intelligence (AI) governance, and the need for new and innovative approaches to regulating AI and big data in ways that go beyond market concerns alone and look to sustainability and social good.

Author: Matthew Groves

Research theme: Administrative Law

On 7 February 2022, The Australian National University awarded degrees of Doctor of Laws honoris causa to three of its Emeritus Professors: Robin Creyke, John McMillan and Dennis Pearce. Professors Creyke, McMillan and Pearce have been honoured for their immense contributions to Australian administrative law previously, having each been made Officers of the Order of Australia and Fellows of the Australian Academy of Law. Each has also been the subject of a festschrift, a “published collection of legal essays written by several authors to honour a distinguished jurist”. While Professors Creyke, McMillan and Pearce each have a distinguished record of public service (including as members of the Administrative Review Council and as long-serving executive members of the Australian Institute of Administrative Law), it was especially pleasing for them to be recognised as academics with connections to the ANU going back decades.

Research theme: International Law

The purpose of this paper is dual, and it has to do with specificity. First, it aims to show that a “law and political economy” approach to international law has been and will be distinct from its US counterpart. To do so, it offers an overview of both the prevailing approaches to and critical engagements with the field. Having shown that neoliberal hegemony is upheld within international law by an admixture of heterogeneous modes of reasoning, the author proceed to argue that this heterogeneity also permeates critical scholarship. This heterogeneity has enabled critical approaches to flourish, but often to the detriment of a consistent, coherent, and purposeful engagement with political economy. The second aim is to show that Marxism offers a distinct and distinctly useful set of analytical tools for international law. Having offered an overview of existing strands of Marxist thought, the author also reflects on the work that remains to be done.

Research theme: Environmental Law

The available data provide compelling evidence that the majority of the abatement credited under the Emissions Reduction Fund’s (ERF) landfill gas methods has not been additional. It appears that in the order of two-thirds of the abatement credited under the methods would have occurred in the absence of the incentive provided by the issuance of ACCUs. The non-additional abatement credited under these methods equates to approximately 19.5 million Australian carbon credit units (ACCUs), or almost 20% of the total number of ACCUs issued under the ERF to the end of 2021. These credits are likely to have been worth more than $300 million.

Author: Don Butler, Dean Ansell

Research theme: Environmental Law

The Human-induced Regeneration (HIR) method is a centrepiece of the Australian Government’s Emissions Reduction Fund (ERF). Broadly, the method allows landholders to earn carbon credits, known as Australian carbon credit units (ACCUs), for the regeneration of native forests through changes in land management. At present, the HIR method accounts for the most project registrations of any method under the ERF, the most Australian carbon credit units (ACCUs) issued of any method, and more than 50% of all ACCUs contracted through the ERF purchasing scheme, worth approximately $1.5-$1.6 billion. HIR project areas now stretch across more than 20 million hectares of Queensland, New South Wales, South Australia and Western Australia and, in these areas, the method is having a material influence on property markets.

Author: Don Butler, Megan C Evans, Pablo R Larraonda, Dean Ansell, Philip Gibbons

Research theme: Environmental Law

The Emissions Reduction Fund (ERF) is the centre-piece of the Australian Government’s climate policy. It was first introduced in 2014 and is comprised of three main elements: a carbon offset crediting scheme, which issues Australian carbon credit units (ACCUs) to projects that abate emissions; a purchasing scheme, whereby the Clean Energy Regulator (on behalf of the Australian Government) voluntarily purchases ACCUs from eligible offset projects; and the ‘Safeguard Mechanism’, which imposes emission obligations on designated large facilities that can be met through the relinquishment of ACCUs. 

Research theme: Law & Technology

International clean technology diffusion is essential to mitigate and adapt to climate change, while fast and optimal diffusion can be prevented by the paywall of patents. This article explores the deficiency in clean technology diffusion caused by the legal fragmentation and rule complex of international environmental law and intellectual property law. It systematically examines three pathways to foster international clean technology diffusion through: restriction of intellectual property, including imposing external restraints in environmental law; striking internal balancing in maximizing TRIPS flexibilities; and keeping the status quo. It argues that treaty pathways may not work, and an operable pathway to promote clean technology diffusion is to maximize and consolidate TRIPS flexibilities in national laws. This option challenges the popular proposal of a “Doha-like” declaration on TRIPS and climate change due to the paralyzed multilateral trade mechanism, asymmetrical negotiation power of developing countries, prolonged negotiation process, and categorization problem in treaty negotiations.

The current focus on the monitoring role of the corporate board has come under much criticism. Independent directors play a significant role within this model. However, their ability to truly function independently has been rightly questioned in the last decade. Independent directors are impeded by two main problems: first, the lack of access to relevant information, for which they are reliant on management, and second, the high likelihood of being captured (to varying degrees) by management. There have been various suggestions to fix these problems, ranging from enhancing board diversity to drastically reforming the current model of corporate boards. This Article argues that diversity holds the promise of slowly reforming the current board model, so long as well-considered measures are taken. To that end, this Article will propose a model of board governance that relies on providers of supplemental board services as intermediaries to facilitate diversity on boards. This model will, on the one hand, allow companies to attract both the best and diverse directors and on the other hand, allow board candidates (especially diverse candidates) to make well-informed decisions about taking on directorships. Eventually, companies may choose to share these reports with investors and the general public to signal their commitment to diversity and governance. Finally, the proposed model has the potential to drive boards to take on more of an advisory role along with the current focus on monitoring.

Research theme: Law & Technology

Beyond Cybercrime: New Perspectives on Crime, Harm and Digital Technologies extends criminological scholarship by examining how digital technologies are conceptualised within research on crime and (in)justice. Guest editors Faith Gordon, Alyce McGovern, Chrissy Thompson and Mark A. Wood present contributions that broaden our theoretical and conceptual understandings of the technology–harm nexus and provide criminologists with new ways of moving beyond cybercrime.

Research theme: International Law

This paper assesses the significance of the Digital Trade Chapter of the Australia—EU FTA and focuses on the disciplines necessary to boost digital trade. In the ongoing negotiations, the EU and Australia are likely to agree upon conventional digital trade disciplines (e.g., e-signatures, e-authentication, paperless trading, customs duties on electronic transmissions) as well as provisions on online consumer trust and spam, and more contemporary disciplines on source code disclosure and data localisation. These disciplines can undoubtedly contribute to boosting digital trade between Australia and the EU. However, data flows and data protection will remain a sticky issue in the ongoing negotiations, given the differences in data protection laws of the EU and Australia, and the EU’s exceptionally defensive approach in data protection. Instead of bypassing such issues, the FTA negotiators should view the negotiations as an opportunity to build mutual consensus and foster cooperation in formulating standards and mechanisms for data transfer. Further, the negotiations provide an opportunity for adopting deeper disciplines on digital trade facilitation that can nurture start-ups as well as experimenting with novel models for regulatory cooperation in nascent policy areas including AI ethics and open government data.

Research theme: International Law

Negotiations between Australia and the European Union (EU) for a free trade agreement (the AEUFTA) appear to be nearing completion. Based on the EU’s negotiating mandate and the official reports from the negotiations so far, it is clear that the AEUFTA’s investment-related provisions will focus exclusively on market access and investment liberalisation. The AEUFTA will thus not incorporate investment protection obligations and nor will it include an investor-State dispute settlement mechanism. Despite these omissions, the conclusion of the AEUFTA will be significant from the perspective of both negotiating States, including because it reveals the policy and legal constraints guiding the approach of each to the negotiation and conclusion of investment treaties and investment chapters in FTAs. This article first introduces the contours of the bilateral investment relationship between the EU and Australia and then examines why the FTA adopts an exclusively liberalisation-focussed approach, to address whether the exclusion of investment protection and investor-State arbitration from the scope of the FTA is a strategic omission on the part of one or both parties. To consider next whether such omission is a missed opportunity, the article examines the likely focus of the investment-related provisions of the treaty, and what impact the FTA is likely to have vis-à-vis investors and existing investment treaties.

Research theme: International Law

What private law avenues are open to victims of human rights violations? This chapter features in an innovative new collection, Civil Remedies and Human Rights in Flux, which explores this question across sixteen jurisdictions in the Global South and Global North.

Author: James Goudkamp, Mark Lunney

This book celebrates the scholarship of Peter Cane. The significance and scale of his contributions to the discipline of law over the last half-century cannot be overstated. In an era of increasing specialisation, Cane stands out on account of the unusually broad scope of his interests, which extend to both private and public law in equal measure. This substantive breadth is combined with remarkable doctrinal, historical, comparative and theoretical depth. This book is written by admirers of Cane's work, and the essays probe a wide range of issues, especially in administrative law and tort law. Consistently with the international prominence that Cane's research has enjoyed, the contributors are drawn from across the common law world. The volume will be of value to anyone who is interested in Cane's towering contributions to legal scholarship and administrative law and tort law more generally.

Author: James Goudkamp, Mark Lunney

This book celebrates the scholarship of Peter Cane. The significance and scale of his contributions to the discipline of law over the last half-century cannot be overstated. In an era of increasing specialisation, Cane stands out on account of the unusually broad scope of his interests, which extend to both private and public law in equal measure. This substantive breadth is combined with remarkable doctrinal, historical, comparative and theoretical depth. This book is written by admirers of Cane's work, and the essays probe a wide range of issues, especially in administrative law and tort law. Consistently with the international prominence that Cane's research has enjoyed, the contributors are drawn from across the common law world. The volume will be of value to anyone who is interested in Cane's towering contributions to legal scholarship and administrative law and tort law more generally.

Research theme: International Law

This chapter assesses the international legal and constitutional law issues associated with the capacity of the Australian states and territories to conduct themselves in foreign affairs, especially vis-à-vis China. It is published in the book, Taking the low road: China's influence in Australian states and territories, edited by Emeritus Professor John Fitzgerald and published by the Australian Strategic Policy Institute in partnership with Konrad Adenauer Stiftung (KAS).

Research theme: International Law

This chapter assesses the international legal and constitutional law issues associated with the capacity of the Australian states and territories to conduct themselves in foreign affairs, especially vis-à-vis China. It is published in the book, Taking the low road: China's influence in Australian states and territories, edited by John Fitzgerald and published by the Australian Strategic Policy Institute.