Global Artificial Photosynthesis: Transition from Corporatocene to Sustainocene
It is a profoundly socially transformative idea that in the future, every road and building on the earth’s surface, with the assistance of nanotechnology, will be undertaking photo- synthesis. Some direct implications of equitably distributing artificial photosynthetic technology across the globe include removing the need for centralised sources of food or fuel. Other indirect outcomes could include stabilisation of population growth (from increased education in developing nations), reduced opportunities for war or corruption and facilitation of progress towards cultures that encourage human flourishing and mental peace, as well as ecosystem sustainability. This can be characterised as a technology- driven transition from the Corporatocene to Sustainocene epoch. One approach to realising such a transition is a global project on artificial photosynthesis, inspired by other large scale scientific projects such as the Human Genome Project, the Large Hadron Collider, the Hubble Space Telescope. This approach has been the subject of collaborative publications and international conferences. Implicit in the task of creating a Global Project on Artificial Photosynthesis is the need to create a favourable governance framework, that is predicated on the consistent application of universally applicable principles.
Research theme: Health, Law and Bioethics
Social Security Overpayments and Debt Recovery: Key Developments
It is important to understand the history of the social security legislation, and other contexts, such as the language of 'error', 'overpayment', 'debt' and 'fraud', to fully understand the social and legislative basis of social security debt recovery today.
Research theme: The Legal Profession
The Use of Space Technology Export Controls as a Bargaining Solution for Sustainability: A Chicago Convention Model of Space Governance
With the increase in space debris and space traffic, there is growing awareness that sustainable use of space requires improvements in global space governance, yet no binding international treaty has been concluded for almost four decades. There is little national incentive for countries to enter into binding instruments that may impose limits on their freedom of action: key issues such as space debris and space traffic management may not immediately threaten national interest. However, they threaten the collective interest in the long term, and the question is how to incentivize States towards creating new space governance instruments to ensure sustainable use of space. Successful international treaties can be described as the striking of a “bargain”, whereby States accept limits on their behavior in exchange for the cooperation of other States. This paper proposes a model similar to the 1949 Chicago Convention on International Civil Aviation, widely seen as the regulatory pillar upon which global civil aviation was built. The Chicago Convention successfully continues to adapt to technologies and to provide incentives for State Parties to comply, due largely to the key mechanism of the technical Annexes. State Parties agree to comply with uniform standards and recommended practices (SARPs) for the safety and efficiency of air navigation in exchange for the cooperation of other States. Hence there is significant short term economic incentive to comply. This paper proposes a new international convention for civil space activities, which would incorporate SARPs for safety and sustainability in outer space. National space technology export control mechanisms can be used by States to incentivize compliance: States could refuse to export space technologies to non-complaint States. Thus, the bargaining mechanism would ensure compliance with long term sustainability interests based on the short-term incentive of access to space technology.
Research theme: Military & Security Law
Global Commons, Cosmic Commons: Implications of Military and Security Uses of Outer Space
Although space was envisaged to be a global commons, in recent years there have been policy shifts that reflect the desire to exert a more dominant presence in outer space, with more proactive, aggressive space security strategies. The notion of a global commons has come under threat, and there is a risk of an emerging space arms race and even of a conflict in space. There is, therefore, a renewed need for restraint in space for both national and global security and for more clarity on the ways in which military and security activities are limited by existing international law.
Research theme: Military & Security Law
Court Records As Archives: The Need for Law Reform to Ensure Access
The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.
Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal Education, Legal History and Ethnology, Migration and Movement of Peoples, The Legal Profession
Not-for-Profit Law and Freedom of Religion
Author(s): Pauline Ridge
The discussion in this chapter of particular intersections between English not-for-profit law and the right to freedom of religion highlights some problems in the existing law. The following suggestions for reform merit further attention. First, ‘religion’ should be defined as widely as possible in order to protect freedom of religion and to promote clarity in legal reasoning. Secondly, in relation to Article 14’s application to religious groups a conceptual framework is needed to determine when it is legitimate for the State to discriminate between religious groups by way of fiscal policy and to more clearly delineate the margin of appreciation afforded to the State when doing so.
Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty
Author(s): Jolyon Ford
In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.
Voting Rights and Australian Local Democracy
Author(s): Ryan Goss
ABSTRACT: In five of Australia’s six States, legislation governing the franchise at local government elections allows for voting rights based partly on property ownership or occupation, for votes for corporations, and for various forms of plural voting. There is no existing comprehensive nationwide catalogue and analysis of the legislation that underpins this phenomenon. This article fills the gap in the literature by providing that analysis. Part I provides a concise overview of the historical context in Britain and in Australia. Part II is the central contribution of the article, describing and analyzing the legislation across the six Australian States. Part II demonstrates the idiosyncratic complexity of local government franchises within and across the States. While this article’s primary goal is to critique the legislation as it stands, Part III concisely makes the case for reform of voting rights at local government elections, suggesting that the status quo raises concerns about democratic inequality.
Achieving the Sustainable Development Goals: Promoting Cooperation and Sustainability
Author(s): Molly Townes O'Brien
To combat the complex problem of world poverty, the United Nations General Assembly set out eight Millennium Development Goals (MDGs), but as poverty decreases, energy consumption and pollution increase. Largely due to this complication, the MDGs were replaced in September 2015 with the Sustainable Development Goals (SDGs). The SDGs include new priorities such as climate change, economic inequality, innovation, sustainable consumption, and peace and justice. Successful development involves more than avoiding poverty. To achieve the sustainable development goals, we have to know what they are and why they were introduced. We need to teach them to our students, who will carry the goals into their future work places.
ADJR at 40: In its Prime or a Disappointment to its Parents?
Author(s): Greg Weeks
The commencement of the ADJR Act represented a significant moment in Australian administrative law. This paper will discuss the impact of the ADJR Act and its continuing relevance.
Research theme: Administrative Law
The Proper Role of Policy in Private Law Adjudication
Author(s): Darryn Jensen
The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law.
How the Higher Education 'Industry' Shapes the Discipline of Law
Author(s): Margaret Thornton
This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.
A People's Federation? Populism, Deliberation and Federal Reform
Author(s): Ron Levy
In some ways populism provides a starkly poor fit to federal decision making – including decision making about a federation itself. As I describe in this chapter, contemporary populism is at once impatient for, and prone to derailing, federal reform. However, after diagnosing problems, I turn to consider institutional routes around them. The best solutions – those perhaps most able to restart stalled progress toward reform – may be those aiming to harness and redirect, rather than deny, populism’s rising tide. In this regard, deliberative democratic approaches to reform appear to hold particular promise.
Planning and Soft Law
Author(s): Greg Weeks
Complex regulatory systems are particularly in need of regulation capable of maintaining both high standards and consistency in decision-making. Soft law is frequently the mechanism of choice to achieve these ends, since it can be made and altered with relative ease but is nonetheless treated as though it were hard and enforceable ‘law’. The law around environmental planning decisions, although subject to detailed legislative control, makes extensive and predominantly effective use of soft law. However, the use of soft law always carries some risk and this is generally imposed asymmetrically upon individuals rather than public bodies. This article will consider these issues, taking account of several relevant cases.
Research theme: Administrative Law
Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value
Author(s): Ron Levy
This article examines whether Australia’s constitutional founders intended that a deliberative form of democratic government should govern federally in Australia. Deliberative democratic ideals have long occupied a prominent place in democratic theory. However, they have seldom been brought to bear in a sustained way on historical questions about Australia’s constitutional design. For constitutional scholars, democratic deliberation is now generally a forgotten element of the Australian constitutional system. We show here how the framers concerned themselves with democratic deliberation, including how precisely they envisaged deliberative democratic practices during the federation Conventions and within the new federation. Our focus is on the framers’ understandings of deliberation within the institution of Parliament, and the subsidiary issues bearing on that question such as the relationship between Parliament and the executive and the role of political parties. Our research suggests that deliberative democracy should assume a prominent place alongside more widely acknowledged original constitutional values.
Government Accountability As a ‘Constitutional Value’
Author(s): Greg Weeks
Accountability is frequently described as one of the key ‘values’ or ‘ideals’ that administrative law is designed to uphold. Accountability’s greatest claim to hold the status of a value might be its ubiquity: it has been described as the ‘buzzword of modern governance’, the ‘über-concept of the 21st century’, and a ‘theme … central to all discussion of government’. Yet the modern meaning of accountability has developed very recently. The word ‘accountability’ can be found in Australian cases over the last century but most refer to the accountability of fiduciaries (such as liquidators and executors) in equity, of taxpayers, of tortfeasors, in electoral matters and of public companies, rather than of government bodies. The concept of the ‘accountability’ of government to those governed has become prominent only fairly recently.
Research theme: Administrative Law
Judicial Review of Administrative Action and Government Liability 6th Edition
Author(s): Greg Weeks, Matthew Groves, Mark Aronson
Judicial Review of Administrative Action and Government Liability Sixth Edition is one of Australia’s most respected legal texts. It became the first title in our prestigious Lawbook Library Series, because it represents definitive legal scholarship and publishing excellence in Australian law. For two decades, this work has both mapped and supported development of the law and practice of judicial review of administrative action throughout Australia. Repeatedly cited in the High Court of Australia, this landmark work remains the definitive scholarly work for judicial officers, practitioners and students alike.
The sixth edition includes an entirely new chapter on what is now a substantial body of special statutory and common law rules that apply to government liability in contract, tort, and restitution. Numerous decisions of the High Court and the Federal Court, in particular, are producing a discernible relaxation of the traditional grounds of review, and a more expansive approach to the interpretation of regulatory statutes. In addition, the Full Court of the Federal Court has announced a simplification of the criteria for appeals limited to questions of law, overturning literally dozens of earlier precedents.
In the Sixth Edition, Mark Aronson and Matthew Groves are joined by Greg Weeks formerly from the University of New South Wales, and now at the Australian National University. Their combined expertise ensures that this pre-eminent title continues to provide a fresh and authoritative treatment of judicial review of administrative actions in Australia, and an invaluable guide to the special problems relating to government liability in tort, contract and equity.
The Tasmanian Dam Case 30 Years On: An enduring legacy
In one of the great contests between State and federal power, the Tasmanian Dam Case pitted the immovable object of Tasmania’s commitment to a massive hydro-electric project against the irresistible force of the Commonwealth’s determination to protect the environment.
Who would prevail? Was it more important to create jobs and provide cheap power, or to preserve the natural beauty of the Tasmanian wilderness? On whom did the Australian Constitution confer the power to decide this question?
By the narrowest of majorities, the High Court decided in 1983 that the Commonwealth had the final say, and upheld legislation that prohibited the construction of a dam on the Gordon River below the Franklin.
Because of the passions aroused by the case, the Court took the unprecedented step of issuing a statement explaining that its job was not to decide whether the proposed dam was a good idea or not, but to determine whether this was a matter of State or federal power. Yet this issue was just as hotly contested. Could any subject be brought within federal power merely by the presence of an international treaty on that subject? Would affirming this proposition destroy the intended balance between State and federal power? Would denying the proposition disable Australia from full participation in international affairs?
Three decades after the High Court’s decision, these and other questions of law and policy remain of vital importance. This book brings together a fascinating collection of commentaries on the impact of the decision, and how the hopes and fears following the decision have played out.
This stimulating and timely book contains reflections from then Commonwealth Attorney-General Gareth Evans, then High Court Justice Sir Anthony Mason and leading Indigenous lawyer Professor Mick Dodson. The book also examines some novel questions, such as whether the outcome of the case was inevitable, how similar issues have played out in Canada, and whether better conservation outcomes are more likely to come from the Commonwealth or the States. These and other chapters offer fresh perspectives on one of the most important cases in High Court history.
Research theme: Constitutional Law and Theory
Crown and Sword: Executive power and the use of force by the Australian Defence Force
The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.
New Directions for Law in Australia
For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird’s eye view of the current state and the future of law reform in Australia.
Research theme: Law and Social Justice