2024-03-29T09:12:08Z
http://ro.uow.edu.au/do/oai/
oai:ro.uow.edu.au:lawpapers-1000
2014-01-24T05:36:48Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
The United Nations as a source of international legal authority
Rose, G. L.
Conference Paper
2005-01-01T08:00:00Z
international law
United Nations
democratic deficit
international law - transformation
<p>This article was originally published as Rose, G, The United Nations as a source of legal authority, Upholding the Australian Constitution, Proceedings of the 17th conference of the Samuel Griffiths Society, Coolangatta, 8-10 April 2005, 163-174. Copyright Samuel Griffiths Society. Proceedings available <a href="http://www.samuelgriffith.org.au/papers/html/volume17/v17chap11.html">here</a>.</p>
<p>What are the connections between the United Nations and The Samuel Griffith Society? One is that Australian constitutional lawyers are now examining the relationship between international law and constitutional law. Justice Kirby of the High Court of Australia first argued for the relevance of international law in construing the federal constitutional requirement of "just terms" in compensation for compulsorily acquired property (s. 51(xxxi)). In Newcrest Mining v. Commonwealth in 1997, he stated that in cases of ambiguity in the federal Constitution, "international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights". The argument for the relevance of international law to constitutional interpretation was pressed in judgments by his Honour again in Kartinyeri v. Commonwealth in 1998, concerning interpretation of the power to legislate in relation to race (s. 51(xv)), and again almost each year subsequently. The argument has generated controversy and has been viewed critically by other High Court Justices. Justices Gummow and Hayne in Kartinyeri, Justices Gleeson, McHugh and Gummow in AMS v. AIF in 1999, and Justice Callinan in Western Australia v. Ward in 2002, each stated that it is inappropriate to apply the principles of international law to constitutional interpretation. In Al-Kateb v. Godwin in 2004, Justice McHugh described the argument as "heretical". Controversy concerning the relevance of international law to constitutional law is erupting also in other constitutionally and democratically governed States. In the USA, Justice Ruth Bader Ginsburg of the federal Supreme Court aroused public criticism for her 2003 address to the American Constitutional Law Society, which advocated a similar deference to international law in constitutional interpretation. However, her argument has since been supported by at least two other Supreme Court justices in the USA. Back in Australia, in legal fields beyond constitutional law, such as human rights law, environmental law and commercial law, questions concerning the role of international law are evident. They range from questions concerning the predominance of the Executive in treaty-making, to the wide legislative powers that treaties vest in Parliament, to the latitude available to judges when employing international law in the application of legislation and common law.</p>
Law
https://ro.uow.edu.au/lawpapers/1
oai:ro.uow.edu.au:lawpapers-1002
2013-06-12T05:18:45Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
Towards an ASEAN counter-terrorism treaty
Rose, G. L.
Nestorovska, D.
Book Chapter
2005-01-01T08:00:00Z
ASEAN
international law
mutual legal assistance
terrorism
counter-terrorism
<p>This article was originally published as Rose, G and Nestorovska, D, Towards an ASEAN counter-terrorism treaty, Singapore Yearbook of International Law, 9, 2005, 157-189. Also available at the International Centre for Political Violence and Terrorism Research: <a href="http://www.pvtr.org/comm_regionalSEA.htm">here</a>.</p>
<p>The benefits for Association of Southeast Asian Nations (ASEAN) members of a regional treaty to combat terrorism include improved coordination in mutual legal assistance and harmonisation of best practice legal approaches. The conceptual framework for a common definition of terrorism is set out in this paper. Precedent regional and multilateral treaties are analysed into legal formulae and their components, such as obligations to indict or to extradite, to provide mutual legal assistance, and to build regional implementation capacity, are assessed as potential models for inclusion in an ASEAN regional treaty. The paper concludes by considering ASEAN progress in adopting cooperative mechanisms to combat terrorism thus far.</p>
Law
https://ro.uow.edu.au/lawpapers/3
oai:ro.uow.edu.au:lawpapers-1001
2013-06-12T05:19:17Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Terrorism and national security intelligence laws: assessing Australian reforms
Rose, G. L.
Nestorovska, D.
Journal Article
2005-01-01T08:00:00Z
terrorism
security law
ASIO
<p>This article was originally published as Rose, G and Nestorovska, D, Terrorism and national security intelligence laws: assessing Australian reforms, LawAsia - Journal of the Law Association for Asia and the Pacific, 2005, 127-155.</p>
<p>The Australian legal definition of terrorism and a brief history of terrorism in Australia set the context for national security intelligence laws. Recent national reforms are surveyed and critically examined here. It is concluded that they do not duplicate other powers and are subject to respectable, although not impeccable, safeguards. Some provisions need to be clarified to delimit their scope and others could be hampered in operation by the uncertainty of constitutionally implied limits.</p>
Law
https://ro.uow.edu.au/lawpapers/2
oai:ro.uow.edu.au:lawpapers-1003
2006-09-27T05:37:13Z
publication:bal
publication:reports
publication:adfrazer
publication:lawpapers
publication:document_types
Labour Law and Productive Decentralisation: Australian Report
Frazer, Andrew D.
Report
2006-09-05T07:00:00Z
productive decentralisation
contracting out
franchising
agency labour
labour hire
corporate restructuring
transmission of business
transfer of undertaking
This report was originally published as Frazer, AD, Labour Law and Productive Decentralisation: Australian Report, in National Reports, XVIII World Congress of Labour and Social Security Law, Paris, 5-8 September 2006. Original conference proceedings <a href="http://www.labourlawparis.com/pages_gb/gb.presentation.html">here</a>.
The decentralisation of production by various means has been a major feature of Australian labour law and relations since the 1980s. Since the recession of the early 1980s, many businesses have pursued financial savings through outsourcing of labour. Many companies did so firstly as a means of focusing on their core business activities and shifting to program-based accounting systems. More recently it has been part of the process of continuous cost-cutting and downsizing, associated with the preoccupation with shareholder value. Decentralisation is usually accompanied by reduction of the internal workforce and intensification of work remaining within the business. These trends are not surprising given the high degree of foreign ownership and control of large business in Australia, and the exposure of the Australian economy to diversification, deregulation and global competition in the last two decades. Decentralisation was in fact championed by conservative governments which began outsourcing (“contracting out”) or privatising government businesses and services from the late 1980s. This paper examines recent Australian Law concerning productive decentralisation. The paper was prepared as a national report for the XVIII World Congress of Labour and Social Security Law, Paris, 5-8 September 2006, on behalf of the Australian Labour Law Association, with contributions by Mr Toby Borgeest.
Law
https://ro.uow.edu.au/lawpapers/4
oai:ro.uow.edu.au:lawpapers-1005
2006-09-27T05:54:09Z
publication:book_chapters
publication:bal
publication:adfrazer
publication:lawpapers
publication:document_types
Parliament and the Industrial Power
Frazer, Andrew D.
Book Chapter
2001-01-01T08:00:00Z
industrial relations
conciliation and arbitration
Australian Constitution
Boilermakers Case
labour laws and legislation
This book chapter was originally published as Frazer, AD, Parliament and Industrial Power, in Lindell G and Bennett, B (eds), Parliament: The Vision in Hindsight, Sydney Federation Press, 2001, 93-148.
The industrial power contained in section 51(xxxv) of the Australian Constitution gives the Federal Parliament power to make laws with respect to ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.’ Throughout the history of the Commonwealth, this power has remained one of the most contentious and litigated clauses in the Constitution. Because of the constitutional limits on the manner in which national legislative power can be exercised in this area, the institutions and processes of the Federal system of conciliation and arbitration have remained a consistent focus of public debate. The industrial power is unusual in not giving Parliament direct power to legislate outcomes; rather it requires use of a particular method (conciliation and arbitration) and then only in certain circumstances (interstate industrial disputes). Since 1904 national industrial relations policy has relied on implementation of the industrial power through a permanent and independent arbitration tribunal (from 1904 to 1956 the Commonwealth Court of Conciliation and Arbitration; between 1956 and 1988 the Commonwealth Conciliation and Arbitration Commission; and since 1988 the Australian Industrial Relations Commission). Yet over the last decade an institution considered one of the more enduring features of Australia’s federated history has been challenged by demands for reduction of industrial regulation in the interest of efficiency and competitiveness.
Law
https://ro.uow.edu.au/lawpapers/6
oai:ro.uow.edu.au:lawpapers-1006
2006-09-27T23:17:04Z
publication:book_chapters
publication:bal
publication:adfrazer
publication:lawpapers
publication:document_types
Individualism and Collectivism in Agreement-Making under Australian Labour Law
Frazer, Andrew D.
Book Chapter
2003-01-01T08:00:00Z
collective bargaining
enterprise bargaining
labour law
trade unions
Workplace Relations Act
This book chapter was originally published as Frazer, AD, Individualism and Collectivism in Agreement-Making under Australian Labour Law, in Severynski, M (ed), Collective Agreements and Individual Contracts of Employment, The Hague, Kluwer Law International, 2003, 49-82.
Australia, in common with many other industrialised countries in the 1990s, has experienced a shift towards individualism in labour law and labour market regulation. This has been part of a wider change as governments have opened up domestic markets to international competition, while rethinking the protections provided by the welfare state. Business has demanded deregulation of all kinds but particularly in the labour market, with the aim of achieving greater flexibility and efficiency in the utilisation of labour. The debate over the reform of industrial relations institutions and processes in Australia has been conducted in terms of ‘enterprise bargaining’, a diffuse term which means (depending on the position of the speaker) either collective bargaining involving national unions but with outcomes tailored to specific workplaces, or firm-specific bargaining by internal enterprise-based parties with minimal involvement from ‘external’ bodies such as unions. During the last decade the debate has moved from an assumption of collective bargaining with union involvement, to the view that agreements should be primarily individual in nature. Legislation has mirrored this debate, with increasing emphasis being given to individual agreements. Hence the legal relationship between collective and individual agreements is of major importance in contemporary Australian labour law.
Law
https://ro.uow.edu.au/lawpapers/7
oai:ro.uow.edu.au:lawpapers-1004
2006-09-27T05:41:33Z
publication:book_chapters
publication:bal
publication:adfrazer
publication:lawpapers
publication:document_types
Industrial Tribunals and the Regulation of Bargaining
Frazer, Andrew D.
Book Chapter
2006-01-01T08:00:00Z
industrial tribunals
labour law
Workchoices
enterprise bargaining
collective bargaining
This book chapter was originally published as Frazer, AD, Industrial Tribunals and the Regulation of Bargaining, in Arup, C et al (eds), Labour Law and Labour Market Regulation, Sydney, Federation Press, 2006, 223-241.
This chapter seeks to apply ‘new’ regulation theory to industrial tribunals, in par-ticular the functions and powers of the Australian Industrial Relations Commission (AIRC) in relation to enterprise bargaining and the making of collec-tive workplace agreements. In a conventional economic sense, industrial tribunals have always been regulatory agencies, with their awards operating as labour standards setting minimum pay and conditions. Since the 1990s, though, the major work and impact of industrial tribunals has changed from making awards to the facilitation and approval of agreements as part of the process of labour market “deregulation.” As (at the time of final revision of this paper) it now appears that any powers of the AIRC to supervise agreement-making will shortly and finally be abolished, we are in a position to review the particular ap-proach adopted for the regulation of workplace bargaining over the last decade. If industrial tribunals will no longer have a regulatory role to play in the setting of conditions by agreements, the opportunity also arises for us to consider what new type of institution might now be appropriate for the inevitable regulation which occurs within the labour market.
Law
https://ro.uow.edu.au/lawpapers/5
oai:ro.uow.edu.au:lawpapers-1008
2012-10-24T00:12:42Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
'Equality before the Law' in polyethnic societies: the construction of normative criminal law standards
McNamara, Luke
Journal Article
2006-06-01T07:00:00Z
<p>This article was originally published as McNamara, L, 'Equality Before the Law' in Polyethnic Societies: The Construction of Normative Criminal Law Standards, E LAW: Murdoch University Electronic Journal of Law, 11(2), 2004. Original journal available <a href="http://www.murdoch.edu.au/elaw/">here</a>.</p>
<p>Criminal justice decision-makers are routinely called upon to formulate and apply normative standards — including adjudication on criminal responsibility, assessments as to the availability of defences, and sentencing determinations. In polyethnic societies such as Australia, the terms in which the relevant standard should be conceived is sometimes challenged by defendants on the basis of their ethnic or religious identity. Such claims are commonly regarded as giving rise to a ‘clash’ — between the objective of valuing and respecting multiculturalism and pluralism, while adhering to ‘fundamental’ liberal principles regarding equality before the law (universality, uniformity and neutrality). This article examines a range of ‘diversity friendly’ theoretical perspectives with the aim of revealing whether it is possible to overcome the ‘equality’ hurdle and the associated demands for single and generally applicable normative standards. Drawing from the political philosophy of liberal multiculturalism, legal pluralism, critical race theory and whiteness studies, the theoretical limits of cultural diversity accommodation will be explored.</p>
Law
https://ro.uow.edu.au/lawpapers/9
oai:ro.uow.edu.au:lawpapers-1007
2012-10-24T00:16:21Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Negotiating the contours of unlawful hate speech: regulation under provincial Human Rights Laws in Canada
McNamara, Luke
Journal Article
2005-01-01T08:00:00Z
<p>This article was originally published as McNamara, L, Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada, University of British Columbia Law Review, 38(1), 2005, 1-82. Original journal available <a href="http://www.ubclawreview.org/">here</a>.</p>
<p>This article has examined more than half a century of operation of provincial and territorial hate speech laws in Canada. This examination has confirmed that free speech sensitivity has long been an integral and enduring feature of the administration and interpretation of legislative regimes for the regulation of hate speech—a finding that should come as a shock to no-one. What is surprising is the way in which free speech sensitivity has impacted on the operation of hate speech laws, and the effects of that influence on the quality of the protection provided to victims by existing provincial and territorial laws.... One of the chief objectives of hate speech prohibitions in provincial and territorial human rights statutes is to draw a line between free speech which must be protected (or at least tolerated), and hate speech which must be outlawed and sanctioned because of its harmful effects. Such line-drawing exercises are never simple and almost always controversial. However, the extent of the uncertainty and controversy has been exacerbated in Canada by the multi-layered influences of free speech sensitivity described above, as well as ongoing differences amongst decisionmakers regarding the legitimate scope of hate speech prohibitions. The net result is that the contours of unlawful hate speech in Canada are anything but sharp. On the contrary, the boundary between free speech and hate speech remains contested and fluid.</p>
Law
https://ro.uow.edu.au/lawpapers/10
oai:ro.uow.edu.au:lawpapers-1009
2012-10-23T22:26:34Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
The locus of decision-making authority in Circle Sentencing: the significance of criteria and guidelines
McNamara, Luke
Journal Article
2000-01-01T08:00:00Z
<p>This article was originally published as McNamara, L, The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guidelines, Windsor Yearbook of Access to Justice, 18, 2000, 60-114. Original journal available <a href="http://www.uwindsor.ca/wyaj">here</a>.</p>
<p>This article analyses the criteria and guidelines that have been developed for the operation of circle sentencing as a method of First Nation community participation in the Canadian criminal justice system. The objective of this analysis is to determine whether circle sentencing has the potential to transfer decision-making authority over sentencing from judges within the non-Aboriginal justice system to sentencing circle participants and First Nation communities. This article concludes that although it operates under certain judicially imposed constraints, and without a solid legislative foundation, circle sentencing does have the potential to shift the locus of decision-making authority in a manner which is consistent with the aspiration of many First Nation communities for greater autonomy in the administration of justice.</p>
Law
https://ro.uow.edu.au/lawpapers/8
oai:ro.uow.edu.au:lawpapers-1010
2018-08-24T01:55:40Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Making Money Out of Thin Air: The Politics, Law and Economy of Radio Spectrum
Mohr, Richard
Journal Article
2002-02-08T08:00:00Z
radio spectrum
private property
broadcast rights
language policy
<p>This article was originally published as Mohr, R, Making Money Out of Thin Air: The Politics, Law and Economy of Radio Spectrum, Australian Financial Review, 8 February 2002.</p>
<p>[Extract] Reporting on the Australian government's windfall of $1.3 billion from the auction of radio spectrum in 2000, the Australian Financial Review on 5 May quoted Ian Hayne, the man responsible for the marketing exercise, as saying, "This is better than selling sand to the Arabs or ice to Eskimos... We are really selling nothing here." More circumspectly, he added, "Maybe I shouldn't say that; this is about the right to use a natural resource.''1 Some of his New Zealand counterparts may have thought he should not have said that, either, since they were disputing Maori claims to radio spectrum as a natural resource under the treaty of Waitangi.</p>
Law
https://ro.uow.edu.au/lawpapers/11
oai:ro.uow.edu.au:lawpapers-1011
2009-02-24T22:21:35Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Living Legal Fictions: Constituting the State or Submerging the Signifier
Mohr, Richard
Journal Article
10.1007/s11196-006-9021-1
2006-09-01T07:00:00Z
This article was originally published as Mohr, R, Living Legal Fictions: Constituting the State or Submerging the Signifier, International Journal for the Semiotics of Law, 19, 2006, 237-258. Copyright Springer. Original article available <a href="http://dx.doi.org/10.1007/s11196-006-9021-1" >here</a>.
This is an inquiry into the ways the state is constituted as an effective legal fiction. It is based on the premise that the state was not constituted, once and for all, some three centuries ago (as Bourdieu suggests) but that the existence of the state relies on continuing legal and social processes. The focus is on the translation from the legal to the social, specifically the semiotic interaction between law, space and daily life in the dynamics of this on-going mise en scène. This requires re-thinking a number of semiotic issues: first, Lefebvre's challenge to a semiotics which neglects the place of the material (body, space) and, second, a challenge to Lefebvre's assertions that the state operates in a realm of freedom in switching 'at will' between codes. Third, it is possible to question the
conditions by which the state operates as a 'floating signifier' which maintains its domination by overwhelming us with its excess meanings. The inquiry proceeds by analysing the legal semiotics of space in different settings: the axis as an expression of legal and state power, from the courtroom to the capital city (Rome, Washington, Canberra), and street names with legal
referents (Montréal and Mexico City, in addition to the above). After considering these self conscious attempts at meaning-making, the article concludes that the legal constitution of the state in urban space is not determined by a single wilful
semiotic regime, but (taking insights from de Certeau) is contingent upon the interpretations and enactments of people who use the spaces. Except in the controlled environments of the courtroom and the planned capital city, everyday life is continually reconstituting the meanings of law and the state.
Law
https://ro.uow.edu.au/lawpapers/12
oai:ro.uow.edu.au:lawpapers-1012
2009-02-24T22:24:06Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Some conditions for culturally diverse deliberation
Mohr, Richard
Journal Article
10.1353/jls.2006.0014
2005-01-01T08:00:00Z
This article was originally published as Mohr, R, Some conditions for culturally diverse deliberation, Canadian Journal of Law and Society, 20(1), 2005, 87-102. Original journal available <a href="http://www.rcds-cjls.uqam.ca/index_en.htm" >here</a>.
This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our "moral education" in dialogue with diverse groups and ways of thinking.
Law
https://ro.uow.edu.au/lawpapers/13
oai:ro.uow.edu.au:lawpapers-1017
2012-10-23T23:19:16Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Defining native title - Indigenous cultural knowledge and the Native Title Act
Arcioni, E.
Journal Article
2003-01-01T08:00:00Z
native title
cultural knowledge
<p>This article was originally published as Arcioni, E, Defining native title - Indigenous cultural knowledge and the Native Title Act, Southern Cross University Law Review, 7, 2003, 50-88. Journal information available <a href="http://www.scu.edu.au/schools/lawj/law_review/index.html">here</a>.</p>
<p>This article argues that the definition of native title in the Native Title Act 1993 (Cth) has been interpreted by the High Court to contain at least two restrictions. This argument is advanced through an examination of the protection of Indigenous cultural knowledge by the native title regime. Part 1 outlines a definition of cultural knowledge, establishes a proposed categorisation of rights in relation to that knowledge and identifies arguments for their protection. Part 2 introduces the Native Title Act 1993 (Cth) in the context of the development of native title jurisprudence in Australia, sets out the statutory definition of native title and the relevant part of the majority’s reasons in Western Australia v Ward (2002) 191 ALR 1. Part 3 is a discussion of that definition and its treatment by the High Court in Ward. Two concepts are identified and discussed – the requirement of specificity in defining a claim and an implied restriction favouring a physical connection to land or water.</p>
Law
https://ro.uow.edu.au/lawpapers/17
oai:ro.uow.edu.au:lawpapers-1014
2006-11-14T23:03:10Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Out Damned Weeds! Weed Management in Australia – Keeping Them at Bay
Arcioni, E.
Journal Article
2003-01-01T08:00:00Z
invasive species - weeds - NSW legislation
This article was originally published as Arcioni, E, Out Damned Weeds! Weed Management in Australia – Keeping Them at Bay, Australasian Journal of Natural Resources Law and Policy, 8(1), 2003, 75-122. Journal information available <a href="http://www.uow.edu.au/law/nrl/journal.htm">here</a>.
Weeds have long been identified as a threat to agriculture and human health and, more recently, as a threat to the environment. In order to address these threats, a two-pronged approach is required, encompassing the prevention of weed introductions and the control of existing weed infestations. Regulation is necessary to achieve this control. The regulatory and policy regimes for both prevention and management of weeds are analysed, with a particular focus on the scope and implementation of week management under the Noxious Weeds Act 1993 (NSW). The legislation relating to the prevention and management of weeds is found to be broad in its scope. However, the potential scope of the legislation is not being fully realized, due to current policy, the interplay with other regimes, international politics and practical issues such as insufficient funding.
Law
https://ro.uow.edu.au/lawpapers/14
oai:ro.uow.edu.au:lawpapers-1016
2012-10-25T04:37:50Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Developments in Free Speech Law in Australia: Coleman and Mulholland
Arcioni, E.
Journal Article
2005-01-01T08:00:00Z
freedom of speech
implied freedom of political communication
Coleman v Power
Mulholland v Australian Electoral Commission
<p>This article was originally published as Arcioni, E, Developments in Free Speech Law in Australia: Coleman and Mulholland, Federal Law Review, 33, 2005, 1-22. Journal information available <a href="http://www.federallawreview.com.au/">here</a>.</p>
<p>This article provides an overview of the developments in 2004 regarding the constitutional freedom of political communication. This will be done through a discussion of the cases of Coleman v Power and Mulholland v Australian Electoral Commission. These two cases have confirmed the validity of the general propositions in Lange v Australian Broadcasting Corporation, regarding the existence of a freedom of political communication implied from the Australian Constitution, and provide the basis for some observations with respect to that implication. In this article an overview is given of the basic principles in Lange, followed by a detailed discussion of relevant parts of the judgments in Coleman and Mulholland. This article ends with analysis of some of the issues raised by the cases.</p>
Law
https://ro.uow.edu.au/lawpapers/16
oai:ro.uow.edu.au:lawpapers-1015
2006-11-14T23:11:42Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Can Catchment Management Deliver Coordination of Resources Management in New South Wales?
Arcioni, E.
Journal Article
2001-01-01T08:00:00Z
catchment management
Lake Illawarra
This article was originally published as Arcioni, E, Can Catchment Management Deliver Coordination of Resources Management in New South Wales?, Australasian Journal of Natural Resources Law and Policy 7(2), 2001, 169-195. Journal information available <a href="http://www.uow.edu.au/law/nrl/journal.htm">here</a>.
In this article, the author examines the problem of the lack of integration of natural resources legislation in NSW and the application of a proposed solution – the catchment management regime. The analysis is conducted by using a case study of Lake Illawarra and its catchment. The operation of the planning system, pollution regulation and the Lake Illawarra Authority are discussed, as well as a number of other regulatory regimes being noted briefly. A history is given of the catchment management system as it has been applied in the Illawarra region. The article concludes by identifying the problems in implementing the catchment management system through the recently enacted Catchment Management Boards.
Law
https://ro.uow.edu.au/lawpapers/15
oai:ro.uow.edu.au:lawpapers-1019
2006-11-15T01:13:36Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
What’s in a Name? The Changing Definition of Weeds in Australia
Arcioni, E.
Journal Article
2004-01-01T08:00:00Z
weeds
This article was originally published as Arcioni, E, What's in a Name? The Changing Definition of Weeds in Australia, Environmental and Planning Law Journal, 2004, 450-465. Copyright Lawbook Company. Original journal available <a href="http://www.thomson.com.au/catalogue/shopexd.asp?id=886">here</a>.
Changes in cultural values since 1788 have influenced our perceptions of, and approaches to, foreign plant species and the way in which we have defined what is a “weed”. This article is an historical overview of the concept of “weeds” in Australia from 1788 to the present. This article follows changes in the definition and concludes with an analysis of the way in which elements of historical definitions can be seen in today’s legislative and policy regimes.
Law
https://ro.uow.edu.au/lawpapers/19
oai:ro.uow.edu.au:lawpapers-1018
2006-11-15T01:08:14Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
The Noxious Weeds Act 1993 (NSW) – balancing people, planet and profit?
Arcioni, E.
Conference Paper
2004-01-01T08:00:00Z
Noxious Weeds Act 1993 (NSW)
balancing interests
Noxious Weeds Advisory Committee
policy
This conference paper was originally published as Arcioni, E, The Noxious Weeds Act 1993 (NSW) – balancing people, planet and profit?, in Sindel, B & Johnson, S (eds), Proceedings of the 14th Australian Weeds Conference - Weed Management: balancing people, planet, profit, RG & FJ Richardson, Melbourne, 2004, 669-672.
Does the legislative system of weeds management in NSW balance the interests of people, planet and profit? Weeds pose a threat to agriculture, human health and the natural environment and therefore require management to address those threats. Such management is challenged by the need to balance the negative effects of weeds on a variety of interests with the financial costs and detrimental side-effects of the weed management itself. The central legal element of the weed management system in New South Wales is the Noxious Weeds Act 1993 (NSW). The Act cannot be considered in isolation. It must be considered in the context of the policies surrounding the Act, established by the Noxious Weeds Advisory Committee. Although the NSW weed regime acknowledges a number of interests, there is no guidance for how they are to be balanced against each other.
Law
https://ro.uow.edu.au/lawpapers/18
oai:ro.uow.edu.au:lawpapers-1020
2018-09-06T00:15:48Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Environmental Justice in Australia: When the RATS became IRATE
Arcioni, E.
Mitchell, Glenn
Journal Article
10.1080/09644010500087590
2005-06-01T07:00:00Z
<p>This article was originally published as Arcioni, E and Mitchell, G, Environmental Justice in Australia: When the RATS became IRATE, Environmental Politics, 14(3), June 2005, 363-379. Copyright Taylor & Francis. Original journal available <a href="http://www.tandf.co.uk/journals/titles/09644016.asp">here</a>.</p>
<p>Environmental justice is a concept used in the United States to describe and analyse environmental politics. That concept also has application outside the country of its origin. In Australia the case study of a dispute between residents, industry and government in the town of Port Kembla provides an example of how environmental justice can be given specific meaning in a local context. Observations of the ‘politics’ of an environmental dispute are made.</p>
Law
https://ro.uow.edu.au/lawpapers/20
oai:ro.uow.edu.au:lawpapers-1021
2006-11-16T22:18:41Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Before the High Court: Politics, Police and Proportionality - An Opportunity to Explore the Large Test: Coleman v Power
Arcioni, E.
Journal Article
2003-01-01T08:00:00Z
This article was originally published as Arcioni, E, Before the High Court: Politics, Police and Proportionality - An Opportunity to Explore the Large Test: Coleman v Power, Sydney Law Review, 25(3), 2003, 379-390. Original journal available <a href="http://www.law.usyd.edu.au/slr/" >here</a>.
On 26 March 2000, Patrick Coleman stood in the Townsville Mall and handed out leaflets with the following printed on them: ‘Get to know your local corrupt type coppers’, identifying Constable Brendan Power as one of the ‘slimy lying bastards’ the subject of Coleman’s attention. A number of police officers, including Constable Power, attended the scene and, following a struggle, Coleman was placed in a police vehicle. He was charged with distributing material with insulting words contrary to s7(1)(d)1 of the Vagrants Gaming and Other Offences Act 1931 (Qld) (hereinafter Vagrants Act), using insulting words contrary to
s7A(1)(c)2 of the same Act, obstructing police, serious assault against police and wilful damage. At trial, Coleman was found guilty of all the charges except that of wilful damage. On 15 November 2002, Coleman was granted special leave to appeal to the
High Court. Coleman argues that the legislation forming the basis of the ‘insulting words’ charges is invalid and that therefore all the charges against him fall away. Coleman asserts invalidity by claiming that the two relevant sections of the Vagrants Act infringe the implied constitutional freedom of political
communication by going ‘far beyond any legitimate aim [of the Act] … far beyond protecting the public integrity of the police force’. Further, that his purported arrest was unlawful, based on charges which were invalid, that they therefore constituted unlawful assault upon him, giving rise to a right of self-defence against the police officers which he exercised and which formed the factual basis of the charges of obstructing and assaulting police. The Coleman v Power appeal presents the High Court with an opportunity to further consider the scope of the implied constitutional freedom of political communication, the test to determine legislative invalidity of regulation that inhibits that freedom and possibly examine issues such as police powers of arrest. This is Coleman’s second attempt at raising the issue of the constitutional freedom in the High Court. His individual position aside, the rest of the Australian community should watch with interest to see how the Court interprets and applies
the freedom. Will the Court give the freedom a strong role in restricting the legislative power of the state, placing great weight on citizens’ need and desire to protest? Or will it confine the freedom’s operation to a limited sphere?
Law
https://ro.uow.edu.au/lawpapers/21
oai:ro.uow.edu.au:lawpapers-1024
2007-01-18T03:29:03Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Globalisation, Federalism and Legal Pluralism: The Challenges of Diverse Legal Cultures in Federal Systems
Marychurch, J. M.
Journal Article
2003-01-01T08:00:00Z
globalisation
federalism
legal culture
This article was originally published as Marychurch, JM, Globalisation, Federalism and Legal Pluralism: The Challenges of Diverse Legal Cultures in Federal Systems, International Journal of Diversity in Organisations, Communities and Nations, 3, 2003, 253-259. Original journal available <a href="http://ijd.cgpublisher.com/" >here</a>.
Australia has recently had to address the structure of corporate law and regulation as a result of decisions in two High Court cases, namely Re Wakim; Ex Parte McNally (1999) 198 CLR 511 and R v Hughes (2000) 171 ALR 155. The constitutional problems posed by these two cases have currently been resolved using a referral of powers by the states to the Commonwealth. However, this agreement was not reached without difficulty, and uncertainty persists due to a five year sunset clause. The intense debate surrounding these events shed light on the continuing diversity in political and legal culture in the Australian states, and on the perception of business, government and academia concerning globalisation and its’ impact of the structure of law. On the other side of the world, the European Union is facing similar challenges, albeit on a different scale. The recent adoption of the Regulation on the European Company follows a history of thirty years of little progress. The impetus for the sudden adoption of this Regulation appears to have been due to the impact of economic globalisation, and the desire to increase competitiveness of the EU in a global economy. However, in order to achieve agreement of the Member States to the Regulation, the key issue of worker participation had to be addressed, an issue going to the heart of the issues of cultural diversity in the corporate law of Member States. This paper will consider the structure of law and its relationship to diversity of legal culture in federal or quasi-federal systems of government. The issues posed by the structure of corporate law are relevant to other areas of law, and the challenges faced by Australia and the European Union now will arise again in the future in the context of other ‘unions’, perhaps in the Australasian region.
Law
https://ro.uow.edu.au/lawpapers/24
oai:ro.uow.edu.au:lawpapers-1022
2007-01-18T02:45:24Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Dimensions Of Legal Diversity In Corporate Structure: Linking The Global And The Local
Marychurch, J. M.
Journal Article
2004-01-01T08:00:00Z
diversity
culture
globalisation
corporate structure
This article was originally published as Marychurch, JM, Dimensions Of Legal Diversity In Corporate Structure: Linking The Global And The Local, Journal of Diversity in Organisations, Communities and Nations, 2004, 113-122. Original journal available <a href="http://ijd.cgpublisher.com/" >here</a>.
This paper will address diversity in legal culture at the local and member state level and its impact on corporations striving to attain global competitiveness in the 21st century economy. The example of the European Union – which has been struggling to meet the demands of a global economy in relation to corporate structure and organisational management, while simultaneously maintaining diversity in legal and regulatory culture at a local level – will be considered. Significant lessons can be learned from Australian experience in managing corporate structure and regulation to meet the needs of industry and of government regulators at a local national and international level.
Law
https://ro.uow.edu.au/lawpapers/22
oai:ro.uow.edu.au:lawpapers-1025
2007-01-18T03:34:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Societas Europaea: Harmonization or Proliferation of Corporations Law in the European Union?
Marychurch, J. M.
Journal Article
2002-12-01T08:00:00Z
Societas Europaea
European Union
company law
harmonisation
This article was originally published as Marychurch, JM, Societas Europaea: Harmonization or Proliferation of Corporations Law in the European Union?, Australian International Law Journal, 2002, 80-105. Journal information available <a href="http://www.ila.org.au/publications_journal.htm" >here</a>.
A significant development was made recently to the range of corporate forms available to businesses operating in the European Union (EU). A company's incorporation, regulation and dissolution had hitherto been the sole domain of the EU's member states. On 8 October 2001, this changed when Council Regulation (EC) No 2157/ 2001 on the Statute for a European Company (the Regulation) was adopted, making the form of a European company or Societas Europaea (SE) open to some businesses in the EU after the Regulation enters into effect. This article will examine the form and analyse the likely impact the national law and legal culture of EU member states will have on the structure and form. It will demonstrate that the Regulation will contribute more significantly to the proliferation of corporate law in the EU than to its harmonisation.
Law
https://ro.uow.edu.au/lawpapers/25
oai:ro.uow.edu.au:lawpapers-1023
2007-01-18T03:05:44Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Co-operation or Sovereignty? Achieving federalisation of Corporate Regulation
Marychurch, J. M.
Journal Article
2004-01-01T08:00:00Z
sovereignty
corporate regulation
harmonisation
globalisation
This article was originally published as Marychurch, JM, Co-operation or Sovereignty? Achieving federalisation of Corporate Regulation, Macquarie Journal of Business Law, 1, 2004, 59-71. Original journal available <a href="http://www.law.mq.edu.au/html/MqJBL/about.htm">here</a>.
This paper will analyse the tensions between the harmonisation of law and the maintenance of sovereignty of member states in federal systems. The paper will focus on Australia and the European Union and the pressures faced, in light of the impact of globalisation, to resolve the issues that have plagued both jurisdictions for decades in achieving a satisfactory and sustainable model for corporate regulation on a federal level.
Law
https://ro.uow.edu.au/lawpapers/23
oai:ro.uow.edu.au:lawpapers-1026
2007-01-30T02:28:15Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Blending educational tools and strategies: Integrating online learning in practical legal training programs.
Pastellas, J.
Maxwell, K. F.
Conference Paper
2005-09-27T07:00:00Z
online learning
practical legal training
face-to face teaching
socialisation
This paper was originally published as: Pastellas, J & Maxwell, K, Blending educational tools and strategies: Integrating online learning in practical legal training programs, Online Learning & Teaching Conference (OLT 2005), Queensland University of Technology, Brisbane, 27 September 2005, 201-208. Conference information is available <a href="https://olt.qut.edu.au/udf/olt2005/" >here</a>.
Over the past decade, there has been an increasing use of on-line learning tools and strategies in pre-admission practical legal training (PLT) programs. Where once on-line learning may have been regarded as experimental novelty in these programs, it has now become an indispensable adjunct to traditional methods of practical instruction.
Although the rapid development and implementation of on-line learning may present difficulties when adopted indiscriminately, it also presents opportunities to develop thoughtful learning environments which use a range of learning techniques that appeal to a range of students and meet a variety
of learning needs.
This paper will explore the intersection of online learning tools and practices and traditional face-to face teaching and learning models in two PLT programs. In doing so, the paper will consider how online learning has changed each PLT program and how these programs have sought to balance the different approaches to teaching and learning.
Law
https://ro.uow.edu.au/lawpapers/26
oai:ro.uow.edu.au:lawpapers-1027
2007-01-30T02:37:22Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Valuing practice: The place of practical legal research in academic life.
Maxwell, K. F.
Pastellas, J.
Conference Paper
2004-11-28T08:00:00Z
This paper was originally published as: Maxwell, K & Pastellas, J, Valuing practice: The place of practical legal research in academic life, AARE International Educational Research Conference, Melbourne, 28 November-2 December 2004, 1-13.
Practical legal training has traditionally been the poor relation of the legal education family. Along with the similarly placed clinical legal education, it is a latecomer to formal legal education and its academic value is regarded with some reservation by those involved in more mainstream areas of academia. These reservations are not entirely unfounded. While few could deny the value of practical legal training in terms of teaching and contribution to the legal community, it is in the contribution to research and scholarship that practical legal training may be seen to be less successful. Few academics who teach in practical legal training go on to conduct research into it, external funding opportunities in this area are quite limited and such research as is conducted is not perceived to have a high academic value.
This paper draws on a research project conducted by the writers to explore the climate influencing research in practical legal training and the standards by which its research successes are measured. The paper relies on interview data obtained from PLT academics to ascertain obstacles to research in PLT and to postulate how positive outcomes for valuing practical legal training research might be achieved.
Law
https://ro.uow.edu.au/lawpapers/27
oai:ro.uow.edu.au:lawpapers-1028
2007-03-13T21:30:52Z
publication:bal
publication:reports
publication:lawpapers
publication:document_types
Representation for the Italian Diaspora
Arcioni, E.
Report
2006-12-18T08:00:00Z
Italian diaspora
electoral policy
Italian elections
This paper was originally published as: Arcioni, E, Representation for the Italian Diaspora, Discussion Paper 37/06 (December 2006), Democratic Audit of Australia, Australian National University. Original paper available <a href="http://democratic.audit.anu.edu.au/papers/20061113_arcioni_ital_diasp.pdf">here</a>.
In this Audit paper Elisa Arcioni, University of Wollongong, considers the decision to include seats for the Italian diaspora in the Italian parliament.The decision was of even greater significance since it was the results in the Australasian seat that gave the Prodi government its majority in the Senate.
Law
https://ro.uow.edu.au/lawpapers/28
oai:ro.uow.edu.au:lawpapers-1034
2013-06-12T05:15:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Report on Pacific Islands Judges Symposium on Sustainable Development
Rose, G. L.
Journal Article
2003-01-01T08:00:00Z
Pacific islands
environmental law
judiciary
<p>This article was originally published as Rose, GL, Report on the Pacific Islands Judges Symposium on Environmental Law and Sudstainable Development, held in Brisbane, Australia, 5-7 February 2002, Journal of South Pacific Law, 7(1), December 2003.</p>
<p>Report on the Pacific Islands Judges Symposium on Environmental Law and Sudstainable DevThe Pacific Islands Judges Symposium on Environmental Law and Sustainable Development was held over three days, 5-7 February 2002. The aim of the Symposium was to bring together judges from the region for information exchange, between themselves and experts in environmental law, and for discussion of potential roles of the judiciary in decision making for sustainable development. It was one in a series of judicial symposia on environmental law organised by the United Nations Environment Programme (UNEP). Other regions where such symposia have been held include Africa (1995), South Asia (1997), South East Asia (1999), Latin America (2000) and the Caribbean (2001). The series culminated in a Global Judges Symposium held for the World Summit for Sustainable Development in Johannesburg, 18-20 August 2002.elopment, held in Brisbane, Australia, 5-7 February 2002.</p>
Law
https://ro.uow.edu.au/lawpapers/30
oai:ro.uow.edu.au:lawpapers-1036
2013-06-12T05:14:49Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Harmonising Australian environmental law: An Australian Oceans Act for Australia’s oceans
Rose, G. L.
Smythe, C.
Journal Article
2006-01-01T08:00:00Z
Austalia
law
policy
oceans management
<p>This article was originally published as Rose, GL and Smyth, C, Harmonising Australian environmental law: An Australian Oceans Act for Australia’s oceans, National Environmental Law Review, 1, 2006, 32-37.</p>
<p>A synopsis of a dicussion paper canvassing a new national approach to marine management: an Australian Oceans Act and an Australian Oceans Authority. The Australian Conservation Foundation and National Environmental Law Association launched the discussion paper in March 2006 about the future of Australia’s laws for its oceans.</p>
Law
https://ro.uow.edu.au/lawpapers/31
oai:ro.uow.edu.au:lawpapers-1031
2013-06-12T05:17:29Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Legal frameworks for integrated marine environmental management
Rose, G. L.
Conference Paper
2006-01-01T08:00:00Z
marine
environrment
management
integrated
law
policy
<p>This conference paper was originally published as Rose, GL, Legal frameworks for integrated marine environmental management, Proceedings of the Fulbright Symposium on Maritime Governance and Security: Australian and American Perspectives, University of Tasmania, 28-29 June 2006.</p>
<p>The Australian federal government is rethinking its policy-based approach to integrated marine environmental management. Does effective coordination of oceans management activities require an overarching legislative framework? Should legislation operate to enforce cross-jurisdictional coordination? Can it also assure cross-sectoral integration? This paper explores possible answers to these questions, considering options for a legal framework for integrated marine environmental management in a federal context.</p>
Law
https://ro.uow.edu.au/lawpapers/34
oai:ro.uow.edu.au:lawpapers-1035
2013-06-12T05:15:29Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
International Law of Sustainable Agriculture in the 21st Century
Rose, G. L.
Journal Article
2003-01-01T08:00:00Z
international law
agriculture
biodiversity
plant genetic resources
treaty
<p>This article was originally published as Rose, GL, International Law of Sustainable Agriculture in the 21st Century: The International Treaty on Plant Genetic Resources for Food and Agriculture, The Georgetown International Environmental Law Review, 15(4), Summer 2003, 583-632. Journal information available <a href="http://www.law.georgetown.edu/journals/gielr/">here</a>.</p>
<p>This paper examines the new PGR Treaty, assessing what it contains that is innovative and what it contains that are repackaged existing arrangements. Therefore, the PGR Treaty is described in the context of the pre-existing arrangements and the political forces that shaped it. The examination commences by providing a historical perspective on the transfer and use of plant genetic resources. It introduces institutional arrangements that predate the Treaty and explains the relationships between them. In this, attention focuses on the International Undertaking on Plant Genetic Resources for Food and Agriculture 1983 (International Undertaking) and the Treaty on Biological Diversity 1992 (CBD), especially their attempts to address the politically central issues of allocation of property and profit. By identifying the strengths and weaknesses of those instruments, the innovations and omissions in the PGR Treaty are highlighted.</p>
Law
https://ro.uow.edu.au/lawpapers/29
oai:ro.uow.edu.au:lawpapers-1030
2013-06-12T05:17:54Z
publication:bal
publication:reports
publication:lawpapers
publication:document_types
Report on the Comparative Analysis of Compliance Mechanisms
Rose, G. L.
Report
2006-01-01T08:00:00Z
compliance
multialteral environmental agreements
law
<p>This report was originally published as Rose, G and Kurukulasuriya, L, Comparative Analysis of Compliance Mechanisms, in Envisioning the Next Steps for MEA Compliance Enforcement: Background Documents, United Nations Environment Programme, Division of Environmental Conventions, Nairobi. Report presented at United Nations Environment Programme High-Level Meeting on Compliance with and Enforcement of Multilateral Environmental Agreements, <a href="http://www.unep.org/dec/support/mdg_meeting_col.htm">Envisioning the Next Steps for MEA Compliance and Enforcement</a>, Colombo, Sri Lanka, 21-22 January 2006.</p>
<p>Compliance mechanisms under 19 selected multilateral environment agreements are analysed and compared. Existing and potential interlinkages and synergies between their compliance mechanisms are identified trhough the analysis and a survey of international and national practice. The objective is to define strategic opportunities at the international level to use the compliance mechanisms to strengthen national implementation. The erport concludes with a draft action plan.</p>
Law
https://ro.uow.edu.au/lawpapers/36
oai:ro.uow.edu.au:lawpapers-1032
2013-06-12T05:17:04Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Regional Treaties
Rose, G. L.
Conference Paper
2006-01-01T08:00:00Z
Australia
Asia-Pacific
treaties
trends
<p>This conference paper was originally published as Conference on 'Treaty Scrutiny: A Ten Year Review', Parliament of Australia, Joint Standing Committee on Treaties, Hansard Transcript, Appendix C, 2006, 100-106. Copyright Commonwealth of Australia. Original published available <a href="http://www.aph.gov.au/house/committee/jsct/treatyscrutiny/report.htm">here</a>.</p>
<p>An investigation of trends in Australian treaty-making with countries in the region of South East Asia and the South West Pacific, projected forwards from the middle of 2006.</p>
Law
https://ro.uow.edu.au/lawpapers/33
oai:ro.uow.edu.au:lawpapers-1029
2014-01-24T04:08:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Australian counter-terrorism offences: Necessity and clarity in federal criminal law reforms
Rose, G. L.
Nestorovska, D.
Journal Article
2007-01-01T08:00:00Z
counter-terrorism
Australia
law
federal
<p>This article was originally published as Rose, GL and Nestorovska, D, Austrlian counter-terrorism offences: Necessity and clarity in federal criminal law reforms, Criminal Law Journal, 31.1, 2007, 20-55. Copyright Lawbook Company, Thomson Legal and Regulatory.</p>
<p>This article analyses the wide-ranging reform of Australian criminal law related to terrorism. It compares the definition of terrorism utilised in recent legislation to the emerging international standard and tests the new federal crimes against the criteria of legislative necessity and clarity. It concludes that the reforms were in fact necessary in the sense of filling prior gaps and inadequacies in the criminal law but that some of the new provisions lack clarity and will pose conundrums for law enforcement.</p>
Law
https://ro.uow.edu.au/lawpapers/35
oai:ro.uow.edu.au:lawpapers-1033
2013-06-12T05:16:40Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
The International Undertaking on Plant Genetic Resources for Food And Agriculture: Will the Paper be Worth the Trees?
Rose, G. L.
Book Chapter
2004-01-01T08:00:00Z
plant genetic resources
international law
biodiversity
<p>This book chapted was originally published as Rose, GL,The International Undertaking on Plant Genetic Resources for Food And Agriculture: Will the Paper be Worth the Trees?, in Stoianoff, N (ed), Accessing Biological Resources: Complying with the Convention on Biological Diversity, Kluwer, London, 2004, 55-90. Original book available <a href="http://www.aspenpublishers.com/Product.asp?catalog_name=Aspen&category_name=∏uct_id=9041120874&cookie%5Ftest=1">here</a>.</p>
<p>The workability of a new treaty on plant genetic resources, adopted in 2002, is analysed. The pre-existing international legal regime that influenced its development and the treaty's place within that regime is considered.</p>
Law
https://ro.uow.edu.au/lawpapers/32
oai:ro.uow.edu.au:lawpapers-1037
2007-03-05T03:48:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Essay Review: Final Test and Class and Schools
O'Brien, M. T.
Journal Article
2006-01-01T08:00:00Z
educational equity
race and schooling
race and achievement
U.S. education
school finance litigation
This article was origianlly published as O'Brien, MT, Essay Review: Final Test and Class and Schools, Educational Studies, 40(1), 2006, 77-83. Original journal available <a href="http://www.tandf.co.uk/journals/titles/03055698.asp">here</a>. Copyright Taylor & Francis.
In this essay review, O’Brien reviews two recent books that explore contemporary efforts to close the American black/white educational achievement gap. In Final Test: The Battle for Adequacy in America’s Schools, Peter Schrag chronicles on-going efforts to enlist the power of the courts to effect equal educational opportunity through court-ordered remedies. Richard Rothstein, in Class and Schools: Using Social, Economic and Educational Reform to Close the Black-White Achievement Gap, looks to social science, educational and social reform for potential solutions to the problem. O’Brien concludes that neither litigation nor educational reform is sufficient to provide universal access to high quality education in the U.S.
Law
https://ro.uow.edu.au/lawpapers/37
oai:ro.uow.edu.au:lawpapers-1038
2009-02-25T22:08:38Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
From Oxymoron to Intersection: an Epidemiology of Legal Research
Manderson, D.
Mohr, Richard
Journal Article
2002-01-01T08:00:00Z
This article was originally published as Manderson, D and Mohr, R, From Oxymoron to Intersection: an Epidemiology of Legal Research, Law Text Culture, 6, 2002.
The foregoing articles about research n and around law reflect a broad conception of what it is to be a legal scholar. The views and experiences of the authors gathered here are probably no more radical or heterodox than those to be found in any of the earlier editions of this journal or the many others devoted to themes of law, society, culture and contemporary legal theory. Having brought these people together to reflect on what it is that they think and do when researching in law, we have raised the legal research question. In these closing remarks we would like to reflect on the practical implications of the epistemologies which emerge from the views of these authors.
Law
https://ro.uow.edu.au/lawpapers/38
oai:ro.uow.edu.au:lawpapers-1039
2013-06-12T05:14:16Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Environmental Performance Auditing of Government - the Role for an Australian Commissioner for the Environment
Rose, G. L.
Journal Article
2001-01-01T08:00:00Z
<p>This article was originally published as Rose, G, Environmental Performance Auditing of Government - the Role for an Australian Commissioner for the Environment, Environmental & Planning Law Journal, 18(3), June 2001, 293-318.</p>
<p>Commonwealth performance in environmental management can be systematically assessed and reviewed through public sector environmental audits. Australia’s experiences in public sector environmental audit indicate that its difficulties lie in inadequate available baseline data and vague policy benchmarks. Significant governmental efforts are being made to address the national data problem but not the benchmarks. Recent trends towards more systematic government performance reporting may eventually feed back to improve benchmarks. Some urge the establishment of an Australian Commissioner for the Environment to implement performance reporting, amongst other tasks. The potential role of the Commissioner as national auditor in particular is examined, drawing largely on Canadian experience.</p>
Law
https://ro.uow.edu.au/lawpapers/39
oai:ro.uow.edu.au:lawpapers-1040
2014-01-24T04:40:24Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Updating international humanitarian law and the laws of armed conflict for the wars of the 21st Century
Rose, G. L.
Journal Article
2007-04-01T07:00:00Z
<p>This article was originally published as Rose, G, Updating international humanitarian law and the laws of armed conflict for the wars of the 21st Century, Defender, Australian Defence Association, Spring 2007, 21-23. </p>
<p>Aspects of international humanitarian law (IHL) and the international law of armed conflict (LOAC) are out-dated because they are ill-adapted to new battlefields. Some innovation is needed in them to address thc complexities of the networked insurgencies that we see today. War between states has declined in prev alence and importance relative to armed conflicts across societal groups, both within states and acro ss nat ional borders. Private organisation s are likely to dominate armed conflicts for the foreseeable future, including those in the Asia- Pacific and beyond, where Australian expeditiona ry forces are engaged. Often called 'non-state actors' in the intern ational legal parlance, they typically conduct hostilities through irregular but systematic attacks, including bombings , shootings and psychological operations. Are these armed conflicts to which LOAC even applies?</p>
International Law
Law
https://ro.uow.edu.au/lawpapers/40
oai:ro.uow.edu.au:lawpapers-1043
2009-02-24T22:15:22Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
Territory, Landscape and Law in Three Images of the Basque Country
Mohr, Richard
Book Chapter
2006-01-01T08:00:00Z
This book chapter was originally published as Mohr, R, Territory, Landscape and Law in Three Images of the Basque Country, in Taylor, W (ed) The Geography of Law: Landscape, Identity and Regulation, Oxford, 2006, 17-32.
Spending time in the Basque country while preparing a contribution to a workshop on landscape and identity focussed my attention on how the Basques were expressing their own identity in their own characteristic and lovely landscape. On arriving in Bilbao a few weeks before the regional elections in 2001, I read the Spanish newspaper El Mundo's description of the Basque landscape as a "Gulag", where the populace lived in fear of terrorism and xenophobia. This was hardly the first impression that came to my mind as I walked streets full of election posters, shoppers, and groups of people dropping in to bars to meet friends over a glass of wine.
Law
https://ro.uow.edu.au/lawpapers/43
oai:ro.uow.edu.au:lawpapers-1041
2009-02-24T22:17:42Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Flesh and the Person
Mohr, Richard
Journal Article
2008-01-01T08:00:00Z
This article was originally published as Mohr, R, Flesh and the Person, Australian Feminist Law Journal, 29, 2008, 31-52.
What connection is there between flesh and the legal person? Flesh is the most material aspect of human existence, while the legal person is one of its most abstract manifestations. The method is a phenomenological analysis of legal records of the body and identity, including everyday documents such as credit cards. These are analysed in terms of the information they contain or refer to, and the physical processes by which they are compiled or activated. These physical traces are linked to law and selfhood by narratives, including those by which we makes sense of our lives as well as forensic narratives that seek to ascribe responsibility for actions. Tracing its ancient origins from theatre, law and theology, the concept of the person is found to have continuing relevance to a conception of self that is dynamic and performative, mediating between the physical and the social. It is capable of attributing identity and responsibility, while at the same time admitting play and indeterminacy into our constructions and narratives of our selves.
Law
https://ro.uow.edu.au/lawpapers/41
oai:ro.uow.edu.au:lawpapers-1044
2009-02-24T22:20:14Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Identity Crisis: Judgment and the Hollow Legal Subject
Mohr, Richard
Journal Article
2007-01-01T08:00:00Z
This article was originally published as Mohr, R, Identity Crisis: Judgment and the Hollow Legal Subject, Law Text Culture, 11, 2007, 106 - 128.
modern legal subject. There is something missing, a gap in the middle
of that subjectivity, which clouds our judgment. This split had its origin
in the Enlightenment, its first effect being the separation of knowing
from doing. Our experience of the world could only be mediated
through self-conscious sense data and thought, without our being in
direct contact with the satisfaction of our needs or the consequences of
our actions. This new conception of subjectivity has become an
impediment to judgment, since splitting the actor from the spectator,
and the judge from the life of the community, results in a denial of the
capacity to interpret facts in the light of experience.
Law
https://ro.uow.edu.au/lawpapers/44
oai:ro.uow.edu.au:lawpapers-1042
2009-02-24T22:17:12Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
Enduring Signs and Obscure Meanings: Contested Coats of Arms in Australian Jurisdictions
Mohr, Richard
Book Chapter
2005-01-01T08:00:00Z
This book chapter was originally published as Mohr, R, Enduring Signs and Obscure Meanings: Contested Coats of Arms in Australian Jurisdictions, in Wagner, A, Summerfield, T and Benevides, F (eds) Contemporary Issues of the Semiotics of Law, Oxford, 180-195.
In the Australian state of New South Wales judges have sat under the coat of arms of the British monarchy since the nineteenth century (figure 1). Having been accustomed to seeing this symbol over the course of many years doing research in New South Wales courtrooms I was surprised to notice, during some research into the physical form of courts in 2000, that a different coat of arms had appeared above the bench in a new court building. This was the State arms of New South Wales. This change had been officially introduced into new courtrooms by an executive decision in 1995, in the midst of a controversy over Australian republicanism and allegiance to the British monarchy. Further developments saw a bill supporting the use of the State arms introduced into the New South Wales Parliament in 2002, and the whole matter referred to a parliamentary committee which took public submissions on the subject and reported in December 2002.
Law
https://ro.uow.edu.au/lawpapers/42
oai:ro.uow.edu.au:lawpapers-1045
2009-02-24T22:19:46Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Authorised Performances: The Procedural Sources of Judicial Authority
Mohr, Richard
Journal Article
2000-01-01T08:00:00Z
This article was originally published as Mohr, R, Authorised Performances: The Procedural Sources of Judicial Authority, Flinders Journal of Law Reform, 4(1), 2000, 63-79.
Media criticism of the courts, or perceptions of a declining 'public confidence' in the judiciary have led to concems over law's authority. There has been dcbate on
concems over 'judicial activism' in North and South America, Europe and
Australia. In Australia this has been played out in political criticism of the judges
of the High Court, while other courts have come in for criticism from sections of
the media for being too lenient in sentencing and generally being 'soft on crime'.
Judicial concern over these criticisms has been expressed in extra-curial responses
by High Court judges and in several recent conferences focussing on public
perceptions and media representations of the judiciary. Two of these conferences
were organised by judicial bodies and all were well attended by judges. Judicial
concern over limits and challenges to judicial authority has also been apparent in a
number of cases addressing judicial powers.
Law
https://ro.uow.edu.au/lawpapers/45
oai:ro.uow.edu.au:lawpapers-1047
2009-02-24T22:19:12Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Shifting Ground: Context and Change in Two Australian Legal Systems
Mohr, Richard
Journal Article
10.1023/A:1015000128505
2002-01-01T08:00:00Z
This article was originally published as Mohr, R, Shifting Ground: Context and Change in Two Australian Legal Systems, International Journal for the Semiotics of Law 15(1), 2002, 1-24. Original article available <a href="http://www.springerlink.com/content/104162/" >here</a>.
Indigenous land claims in Australia have brought Indigenous law into
contact with the Australian common law, changing some of the terms of each of these
systems of law. By tracing these contacts back to one of the first engagements, when
the Yolngu people of northern Australia framed a petition to parliament in pictorial
descriptions of their law, I explore the means by which changes have occurred. This is
characterised as a process of mutual framings and re-framings.
The delicate and contentious issue of meaning change in Yolngu law and in Australian
common law's dealings with Indigenous law is examined in order to illuminate the ways in
which meaning change may be understood in an epistemological and semiotic framework.
The most recent common law decisions in land claims have begun to recognise a
mutual relationship between common law and Indigenous law. This has occurred most
notably at the edges of western law's epistemological practice, in its dealings with historical
and Indigenous sources. The success of Yolngu epistemological and legal engagement
with the dominant Australian society and its law suggests a means of understanding some
of the ways in which meaning may change in response to changing contexts. This relationship
can be seen through Yolngu categories of "inside" and "outside", or in terms of the
cultural context of semiotic interpretation. Meanings may change within each frame, not
through the simple incorporation or adoption of "outside" concepts, but through shifts in
the broader context of meaning.
Law
https://ro.uow.edu.au/lawpapers/47
oai:ro.uow.edu.au:lawpapers-1046
2009-02-24T22:26:43Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Reconciling independence and accountability in judicial systems
Contini, F.
Mohr, Richard
Journal Article
2007-01-01T08:00:00Z
This article was originally published as Contini, F and Mohr, R, Reconciling independence and accountability in judicial systems, Utrecht Law Review, 3(2), December 2007, 26-43.
Since the mid 1990s, the contraction of available resources and the spread of ‘new public
management’ approaches have presented new challenges to European judicial systems, expecting
them to improve simultaneously their efficiency, quality of service delivery and accountability
mechanisms, in line with the expectations on other branches of the public sector. Through an
analysis of some of the findings of several research projects financed by different institutions,
this article considers ways in which these expectations, and the projects to which they give rise,
play off against the very different traditions of the law and the judiciary. In various countries
these expectations have produced a number of procedural, structural and above all managerial
policies that have led to new forms of ‘managerial’ evaluation of the activities of courts and
judges. The approaches to be found range from traditional statistical surveys of caseload, largely
lacking in any consequences, to performance based remuneration systems that define the salary
of individual judges based on the number of cases they decide.
Law
https://ro.uow.edu.au/lawpapers/46
oai:ro.uow.edu.au:lawpapers-1049
2009-02-24T22:24:33Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Judicial Evaluation in Context: Principles, Practices and Promise in Nine European Countries
Mohr, Richard
Contini, F.
Journal Article
2007-01-01T08:00:00Z
This article was originally published as Mohr, R and Contini, F, Judicial Evaluation in Context: Principles, Practices and Promise in Nine European Countries' European, Journal of Legal Studies, 1 (2), 2007. Original article available <a href="http://www.ejls.eu/" >here</a>.
The evaluation of judges’ performance takes place in many ways. Traditionally, there
are avenues of appeal and legal accountability mechanisms. More recently, ministries of
justice and judicial councils across Europe have introduced a range of complaints
mechanisms, quality assessment procedures and other managerial methods of judging judges
and the courts within which they operate. This paper reports on a study of these mechanisms
in nine member countries of the European Union. Our purpose is to survey the possible ways
in which the judiciary can be evaluated, with a view to improving those practices and,
ultimately, contributing to a better functioning of the courts.
The study focuses on judges within the institutional context of courts. The staffs of
courts are commonly employed by a ministry of justice or some other executive body. A
ministry is responsible for allocating funds and accounting to parliament for their expenditure.
In many European countries (including six of the nine discussed here) the status of judges
(discipline, promotion, transfer, appointment), and in Denmark and the Netherlands also the
management of courts, is under the direct responsibility of a judicial council which has
substantial judicial representation and a degree of independence from the executive
government.
Law
https://ro.uow.edu.au/lawpapers/49
oai:ro.uow.edu.au:lawpapers-1050
2009-02-24T22:18:45Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Local court reforms and 'global' law
Mohr, Richard
Journal Article
2007-01-01T08:00:00Z
This article was originally published as Mohr, R, Local Court Reforms and 'Global' Law, Utrecht Law Review, 3(1), 2007, 41-59.
Discussions of globailisation arose in the late twentieth century out of economic discourse about market liberalisation and the scale and global reach of transnational corporations. Legal discussions of the subject have tended to follow in the wake of these economic and geopolitical trends.
Law
https://ro.uow.edu.au/lawpapers/50
oai:ro.uow.edu.au:lawpapers-1051
2012-10-23T23:39:36Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
(Review) Desmond Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice
Mohr, Richard
Journal Article
2002-01-01T08:00:00Z
<p>This book review was originally published as Mohr, R, (Review) Desmond Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice, Social & Legal Studies, 11 (1), 2002.</p>
<p>This elegant, wide-ranging and stimulating book has everything but the music. In graphic form, even the music is available as a frontispiece to each chapter, introduced with an extract from the score of the music for which it is named. The work begins with a ‘Prelude’ and ‘Fugue’ (Bach) and has a ‘Requiem’ (Mozart) on the death penalty, while ‘Quartet for the End of Time’ (Messiaen) opposes modernism and the reification of law, looking to space (in legal geography), rather than time, for the source of a ‘critical pluralism’. Surprisingly, this apparently precious device works, and it works at a number of levels. Analogies with the pieces of music help to illustrate the point of each chapter and the playful counterpoint between the music and the argument is a source of, well, aesthetic pleasure. By drawing our attention to the appreciation of formal structure shared by music and law, as in the sparse, elegant prose of the opening ‘Prelude’, Desmond Manderson uses the format of the book to illustrate his theory.</p>
Law
https://ro.uow.edu.au/lawpapers/51
oai:ro.uow.edu.au:lawpapers-1052
2009-02-24T22:18:15Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Beyond the bounds
Mohr, Richard
Journal Article
2002-01-01T08:00:00Z
This article was originally published as Mohr, R, Beyond the bounds, Law, Text and Culture, 6, 2002, 1-6.
The contributions to this edition of Law Text Culture arose from a series of workshops and seminars which Luke McNamara and I organised through the Legal Intersections Research Centre at the University of Wollongong during 2001 and 2002. Having recently formed a research group focusing on the social and disciplinary intersections of law, we set out to explore these intersections with the help of colleagues working in law, humanities and social sciences in Australia, North America and Europe. Some of their contributions to this exploration are collected here.
Law
https://ro.uow.edu.au/lawpapers/52
oai:ro.uow.edu.au:lawpapers-1053
2009-02-24T23:22:03Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Law and identity in spatial contests
Mohr, Richard
Journal Article
10.1080/14608940307122
2003-01-01T08:00:00Z
This article was originally published as Mohr, R, Law and identity in spatial contests, National Identities, 5(1), 2003, 53-66. Original article available <a href="http://www.tandf.co.uk/journals/carfax/14608944.html">here</a>.
Law has had a traditional reference to land, conceived as territory, in the notion of a jurisdiction, where the law of the land applies equally to all individuals. Recent critiques of this view have suggested that a plurality of laws may apply in particular places. How this spatial pluralism impacts on dominant views of law is considered through two instances in which law has interacted with competing conceptions of place and territory in relations between European and Indigenous Australians. Space, law and identity are seen to constitute each other in complex forms. Indigenous beliefs and practices challenge the claims to universality of Western conceptions of law and space deriving from Roman law and spatial practices.
Law
https://ro.uow.edu.au/lawpapers/53
oai:ro.uow.edu.au:lawpapers-1054
2012-10-23T23:40:28Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
(Review) Critical legal positivism by Kaarlo Tuori
Mohr, Richard
Journal Article
2003-01-01T08:00:00Z
<p>This book review was originally published as Mohr, R, (Review) Critical Legal Positivism by Kaarlo Tuori, Adelaide Law Review, 24(1), 2003, 141-144.</p>
<p>Kaarlo Tuori, professor of law, judge, and counsellor to the Constitutional Committee of the Finnish Parliament, has embarked on an ambitious project. He aims to build on the positivism of Kelsen and Hart, but to discover a normative justification of law which goes beyond their limited validity claims. This is the ‘critical’ element which he adds to ‘legal positivism’. Kelsen’s basic norm and Hart’s rule of recognition are irreducible underlying principles. The arbitrary nature of such principles is intellectually suspect, while their internal self referentiality renders them morally sterile. The law is the law — because we recognise it as such or because it is founded on the basic norm — and as such it is valid. This leads to a lack of critical purchase, which is the fundamental drawback of positivism when confronted by natural law or other ethically based theories. Classical mid-twentieth century positivism offers no ethical foundation outside the declared law from which we may criticise unjust laws.</p>
Law
https://ro.uow.edu.au/lawpapers/54
oai:ro.uow.edu.au:lawpapers-1055
2012-10-23T23:41:09Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Festival Filosofia sui Sensi / Philosophical Festival of the Senses
Mohr, Richard
Journal Article
2006-01-01T08:00:00Z
<p>This article was originally published as Mohr, R, Festival Filosofia sui Sensi / Philosophical Festival of the Senses, The Senses and Society, 1(1), 2006, 155-157.</p>
<p>Three cities, three days, how many senses? I lost count in the eruption of designer menus, philosophy "master classes," children's activity spaces, all night music parties, herbs and spices, exhibitions including Picasso erotica, and strolls past the flower, fish and formaggio sections of the market in Modena. The latest edition of the city's philosophy festival organized each year since 2001 was dedicated to the senses. From Friday to Sunday, 16-18 September, 2005 Modena and its smaller neighbors Carpi and Sassuolo gave over their piazzas, exhibition spaces, libraries, restaurants and churches to the festival. The trains between the three centers were crowded with "cultural commuters," who were invited to scheduled en route discussions with various philosophers on a number of the trips.</p>
Law
https://ro.uow.edu.au/lawpapers/55
oai:ro.uow.edu.au:lawpapers-1057
2009-08-19T04:05:05Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Reconceiving Labour Law: The Labour Market Regulation Project
Frazer, Andrew D.
Journal Article
2008-11-01T07:00:00Z
labour law
labor law
regulation of labour
labour market regulation
Richard Mitchell
This article was originally published as Frazer, AD, Reconceiving Labour Law: The Labour Market Regulation Project, Macquarie Law Journal, 8, (2008), 21-44.
This paper reviews the recent work by Australian labour lawyers that has embraced the ‘new regulation’ and in particular the idea of law as regulation. This approach has recast the academic study of labour law as being concerned with regulation of the labour market. While much of this work has concentrated on expanding the field of labour law to include many areas of law affecting the labour market (beyond the employer-employee relationship), the work has also developed the view of law as a mechanism of state regulation. The paper examines how the ‘regulatory turn’ in Australian labour law has affected the accounts it provides, and assesses the connection between seeing the labour market as the field of study and the adoption of a regulatory perspective to the study of labour law.
Business Law, Public Responsibility, and Ethics
Labor and Employment Law
Labor Relations
Law
Work, Economy and Organizations
https://ro.uow.edu.au/lawpapers/57
oai:ro.uow.edu.au:lawpapers-1056
2009-08-19T04:05:35Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Industrial relations and the sociological study of labour law
Frazer, Andrew D.
Journal Article
2009-01-01T08:00:00Z
industrial relations
sociology of law
labour law
Ehrlich
This article was originally published as Frazer, AD, Industrial relations and the sociological study of labour law, Labour & Industry: a journal of the social and economic relations of work 19(3), 2009, 73-96. Copyright Labour & Industry 2009. Original item available <a >href="http://www.buseco.monash.edu.au/mgt/research/werrc/labour-and-industry/index.html>here</a>
This article examines the prospect for more fruitful collaborative research between labour law and industrial relations, using recent studies in labour law as a starting point. An increased and more sophisticated interest in labour law as regulation, particularly in Australia, has moved the discipline towards some of the traditional interest areas of industrial relations. However there remains a need for more empirically-based research, with the social reality of law as its primary focus. The legal studies paradigm is not well geared to social science research and an interdisciplinary approach is required. Industrial relations is the obvious candidate for such a partnership, but it currently lacks the basis for a law-centred methodology. The paper argues that the established field of sociology of law provides the most suitable basis for such work. To adopt this approach would, however, require scholars in both labour law and industrial relations to move onto new terrain and to ask new questions.
Labor and Employment Law
Law
Law and Society
Other Legal Studies
Work, Economy and Organizations
https://ro.uow.edu.au/lawpapers/56
oai:ro.uow.edu.au:lawpapers-1060
2012-10-23T23:41:54Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Response and responsibilty
Mohr, Richard
Journal Article
2009-01-01T08:00:00Z
Stolen generations
Northern Territory intervention
Little Children are Sacred Report
Prime Minister Rudd
<p>This article was originally published as Mohr, R, Response and responsibility, Indigenous Law Bulletin, 7(11), 2009, 15-18. Copyright Indigenous Law Centre 2009. Original journal article available <a href="http://www.ilc.unsw.edu.au/publications/ilb/past.asp">here</a></p>
<p>One year after the Apology to the Stolen Generations, Richard Mohr asks what we mean by 'responsibility' in the context of a government wishing to redress past wrongs. Looking specifically at the Intervention and the suspension of the Racial Discrimination Act, Richard argues that, for the Apology to have any meaning beyond 2008, it is important that the Commonwealth deliver on the concrete measures recommended in Bringing them Home, and provide Aboriginal and Torres Strait Islander people a guarantee against further racist polices, both now and in the future.</p>
189999 Law and Legal Studies not elsewhere classified
Law
https://ro.uow.edu.au/lawpapers/58
oai:ro.uow.edu.au:lawpapers-1061
2010-04-01T03:14:02Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
‘Allontanarsi dalla linea gialla’: distance and access to urban semiosis
Mohr, Richard
Journal Article
2009-01-01T08:00:00Z
urban semiotics
phenomenology
photography
Aboriginal land
psychogeography
This article was originally published as Mohr, R, ‘Allontanarsi dalla linea gialla’: distance and access to urban semiosis, Lexia: Rivista di Semiotica, 03/04, 2009, 375-393.
This is an enquiry into the relationship between familiarity and distance in semiotic and related studies. In parallel, it explores our relationship to cities: the familiar as the ground of our daily lives are invisible, while the unfamiliar become vivid in proportion to our ignorance of them. Learning and research may at first appear to involve a process of gaining greater proximity to the subject matter. There are indications from the semiotic and phenomenological traditions that suggest, however, that greater distance is required, in order to question taken-for-granted semiotic bonds and to step outside in order to examine quotidian life experience. The article explores these issues through the experience of a joint project, between a photographer and a sociologist, which documented and analysed a specific urban area in Melbourne, Australia. The results of the project were presented at two gatherings, one in Melbourne and the other in Torino. The different relationships of the two protagonists to the subject matter, and the different degrees of proximity of the two audiences provide the opportunity to reflect on distance as a methodological element in the human sciences. The study draws on phenomenological and semiotic principles to consider whether distance may provide a necessary critical fulcrum, or may trigger insights across the gap of εποχη that are unavailable in the ‘natural attitude’. The methodological and pedagogical points are drawn out of a discussion of the photographs themselves.
Law
https://ro.uow.edu.au/lawpapers/59
oai:ro.uow.edu.au:lawpapers-1070
2010-09-01T02:53:10Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Older workers as vulnerable workers in the new world of work
Sargeant, Malcolm
Frazer, Andrew
Conference Paper
2009-01-01T08:00:00Z
work
older
world
workers
vulnerable
Frazer, A. & Sargeant, M. (2009). Older workers as vulnerable workers in the new world of work. 15th World Congress of the International Industrial Relations Association (IIRA) (p. Workshop Sessions, Track 5: Session 3). Sydney: IIRA.
The paper brings focus to the consideration of one particular group of vulnerable workers who may be adversely affected by new forms of work. This group already suffers from discrimination based upon their age and this paper will consider whether this discrimination is compounded by the increasing numbers of older workers in the precarious workforce. The paper examines older workers in Australia and the United Kingdom to determine the extent of their involvement in precarious work, in particular part-time, casual or temporary work, and self-employment.
Law
https://ro.uow.edu.au/lawpapers/68
oai:ro.uow.edu.au:lawpapers-1069
2010-09-01T03:01:28Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Art Actually! The Courts and the Imposition of Taste
Leiboff, Marett
Journal Article
2009-01-01T08:00:00Z
art
actually
taste
courts
imposition
M. Leiboff, 'Art Actually! The Courts and the Imposition of Taste' (2009) 3 Public Space: The Journal of Law and Social Justice 1-23.
How do we read art, at least in law? The traditional approach of the courts has been to
disavow, or at least avoid any discussion on matters of aesthetics or connoisseurship, or more
accurately assert such a disavowal. Because whether the courts acknowledge it or not, they
actively judge art, even when they say they don't. Judging art by judges, as we will see, is not
a particularly edifying spectacle, but is it better for the courts to avoid judging art? In this
article, I will explore what happens when the courts grapple with the problem of judging art,
but to begin, I would like to ask you to look at two snapshots of judicial entanglements with
art in the form of extracts from the case law.
Law
https://ro.uow.edu.au/lawpapers/67
oai:ro.uow.edu.au:lawpapers-1075
2010-09-01T01:47:27Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud
Polk, Kenneth
Chappell, Duncan
Journal Article
2009-01-01T08:00:00Z
dishonesty
murky
world
fakers
forgers
deception
exploration
art
fraud
D. Chappell & K. Polk, Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud, Current Issues in Criminal Justice, 20(3), 2009, 393-412.
This article examines the problem of fraud in the contemporary art market. It addresses
two major cases where persons have been convicted of art fraud in recent years in
Australia, examining the legal context within which the prosecutions took place. It then
examines problems in common terms such as 'forgery' and 'fakery'. The final sections
review the different ways that issues of authenticity in art are addressed in possible cases
of art fraud, and examines the question of why so little art fraud comes to the attention of
the criminal justice system.
Law
https://ro.uow.edu.au/lawpapers/73
oai:ro.uow.edu.au:lawpapers-1076
2010-09-01T01:43:58Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Shhh ... we can't tell you: an update on the naming prohibition of young offenders
Lincoln, Robyn
Chappell, Duncan
Journal Article
2009-01-01T08:00:00Z
D. Chappell & R. Lincoln, 'Shhh ... we can't tell you: an update on the naming prohibition of young offenders' (2009) 20 (3) Current Issues in Criminal Justice 476-484.
Prohibitions on the naming of young offenders in criminal proceedings remain a
controversial issue both in Australia and abroad. Despite international obligations, like
those contained in the UN Convention on the Rights of the Child, to protect the privacy of
young people in conflict with the law jurisdictions like the Northern Territory (NT)
continue to flout such provisions by placing few restrictions on media reporting of
criminal cases involving juveniles. Amidst political clamours for ever more punitive
measures to deal with youth crime other jurisdictions now seem bent upon following the
NT's approach. A notable and largely unnoticed exception to this trend is to be found in
New South Wales where in a recent inquiry, conducted by the NSW Legislative Council's
Law and Justice Standing Committee, it has been recommended that not only should the
privacy protections afforded young people be maintained but uniform laws should be
introduced on this subject. This recommendation has since been accepted by the NSW
Government. In this Comment, which updates earlier remarks on this issue published in
2007, an account is given of the inquiry's findings and recommendations, together with a
call for research to establish the impact of naming and shaming young people in
jurisdictions like the NT.
Law
https://ro.uow.edu.au/lawpapers/74
oai:ro.uow.edu.au:lawpapers-1082
2010-09-01T01:24:07Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
The legal regime for the protection and exploitation of fishes, with special reference to Australia
West, Ronald J
Journal Article
2009-01-01T08:00:00Z
australia
protection
special
regime
legal
reference
fishes
exploitation
West, R. J. (2009). The legal regime for the protection and exploitation of fishes, with special reference to Australia. Soochow Law Journal, 6 (1), 105-131.
Australia has the third largest Exclusive Economic Zone (l°
648 250 km2) however overall commercial fisheries production
is ranked relatively low in comparison with many other nations
(240,000 metric tones per year, valued at $A2.2 billion)2. The
reason underlying this relatively low level of fisheries production
can be largely attributed to the low productivity of many marine
waters surrounding the Australian coastline and a legal regime
that is designed not only to manage fisheries, but to provide a
significant degree of environmental protection to both fishes and
their habitats.
Law
https://ro.uow.edu.au/lawpapers/80
oai:ro.uow.edu.au:lawpapers-1080
2010-09-01T01:26:56Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Charting a sustainable course through changing Arctic waters
Warner, Robin
Journal Article
2009-01-01T08:00:00Z
charting
sustainable
changing
course
waters
arctic
Warner, R. (2009). Charting a sustainable course through changing Arctic waters. Yearbook of Polar Law, 1 323-348.
As the Arctic ice recedes, the opportunities for all year round routing of merchant shipping through Arctic waters rise. The freeing up of Arctic waters may also attract increased numbers of scientific research vessels servicing oil and gas installations, foreign fishing vessels and warships. The prospect of major navigational channels opening up in this region brings risks to a pristine Arcti environment and its indigenous inhabitants. This article highlights the threats posed to the species, habitats and ecosystems of Arctic waters from increased shipping transits of the region including the potential for increased vessel source discharges of noxious and hazardous substances and the catastrophic consequences of groundings for the Arctic environment and its biodiversity. It reviews the legal controversies over the status of certain parts of Arctic waters and the navigational regimes applicable to foreign flag vessels transiting Arctic waters under the 1982 United Nations Law of the Sea Convention (LOSC). The need to balance navigational rights with appropriate environmental safeguards under an increasing array of international environmental principles including the precautionary approach and obligations to assess the impact of ship based activities on the global environment and its marine components is examined. The article then analyses some of the regulatory mechanisms which have been devised to promote environmentally sustainable navigation for shipping in sensitive areas of ocean space subject to high levels of shipping traffic through the International Maritime Organization (IMO).
Law
https://ro.uow.edu.au/lawpapers/78
oai:ro.uow.edu.au:lawpapers-1088
2010-09-01T01:13:22Z
publication:bal
publication:reports
publication:lawpapers
publication:document_types
The Philippines as an Archipelagic and Maritime Nation: Interests, Challenges, and Perspectives
Palma, Mary Ann
Report
2009-01-01T08:00:00Z
challenges
interests
perspectives
nation
philippines
maritime
archipelagic
M. Palma (2009). The Philippines as an Archipelagic and Maritime Nation: Interests, Challenges, and Perspectives. Singapore: RSIS.
The geographic nature of the Phillipines as well as its numerous activities in relation to the sea, are integral to the identify of the country and critical in securing its maritime interests.
Law
https://ro.uow.edu.au/lawpapers/86
oai:ro.uow.edu.au:lawpapers-1079
2010-09-01T01:29:06Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Does otolith chemistry indicate diadromous lifecycles for five Australian riverine fishes?
West, Ronald J.
Miles, N. G.
Norman, M. D.
Journal Article
10.1071/MF08252
2009-01-01T08:00:00Z
does
fishes
chemistry
riverine
diadromous
five
lifecycles
otolith
australian
indicate
Miles, N. G., West, R. J. & Norman, M. D. (2009). Does otolith chemistry indicate diadromous lifecycles for five Australian riverine fishes?. Marine and Freshwater Research, 60 904-911. Copyright CSIRO 2009.
Diadromy is an important characteristic of the lifecycle of many Australian coastal fishes, but many of these species remain poorly studied. The migratory patterns of five riverine fish species from south-eastern Australia were examined using otolith chemistry. Analyses of individual otoliths from wild-caught fishes revealed distinctive lateral variation in otolith Sr : Ca values that provide good evidence for an amphidromous lifecycle for two species: Myxus petardi and Gobiomorphus australis. Gobiomorphus coxii, Potamalosa richmondia and Notesthes robusta displayed Sr : Ca patterns that indicated that these species may have more complex movements between marine and fresh water. Overall, these results provided quantitative data that supported the lifecycles previously hypothesised for most of the studied fish species. However, M. petardi, which was thought to be catadromous, displayed Sr : Ca variations that suggested an amphidromous lifecycle, at least for the specimens examined. These results also provided further evidence to demonstrate that otolith chemistry is a useful tool for studying the movement patterns of diadromous species and this technique will be especially valuable in identifying species that are most at risk from river regulation and barriers to migration.
Law
https://ro.uow.edu.au/lawpapers/77
oai:ro.uow.edu.au:lawpapers-1077
2010-09-01T01:38:50Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Ambulance officers: the impact of exposure to occupational violence on mental and physical health
Mayhew, C.
Chappell, D.
Journal Article
2009-01-01T08:00:00Z
impact
exposure
violence
mental
health
officers
ambulance
occupational
physical
D. Chappell & C. Mayhew, 'Ambulance officers: the impact of exposure to occupational violence on mental and physical health' (2009) 25 (1) The Journal of Ocupational Health and Safety Australia and New Zealand 37-49.
Health workers in general, and ambulance
officers in particular, experience significant
levels of occupational violence. In this article,
the results are reported from a study which
gathered both quantitative and qualitative data
on the occupational violence encountered by
40 ambulance officers working in a large
Australian health agency. Each officer was
interviewed face-to-face, completed a detailed
questionnaire with both qualitative and
quantitative responses required, and also
completed the abbreviated General Health
Questionnaire (GHQ), an instrument which has
been validated across a range of international
studies to measure emotional stress.
The stUdy findings showed, among other
things, a high risk of exposure to overt
violence and also a clear rise in GHQ scores
that was correlated with increasing exposure
to occupational violence over the previous
12-month period, with officers from rural areas
having higher scores than those in urban areas.
Very high scores came disproportionately from
those who had either experienced a series of
violent events or who had been bullied.
The authors conclude that greater attention
needs to be given to the prevention of mental
health consequences from occupational
violence among ambulance officers, in
addition to those directed at minimising
physical injuries.
Law
https://ro.uow.edu.au/lawpapers/75
oai:ro.uow.edu.au:lawpapers-1078
2010-09-01T01:36:09Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Perspectives on the organisation and control of the illicit traffic in antiquities in South East Asia
Adler, Christine
Chappell, Duncan
Polk, Kenneth
Conference Paper
2009-01-01T08:00:00Z
asia
organisation
illicit
traffic
south
east
perspectives
control
antiquities
C. Adler, D. Chappell & K. Polk, 'Perspectives on the organisation and control of the illicit traffic in antiquities in South East Asia' (Paper presented at the Organised Crime In Art and Antiquities, Courmayeur Mont Blanc, Italy, 12-14 December).
We intend addressing three issues in till paper. First we will describe in detail not available elsewhere the patterns that are found in the
illicit traffic in antiquities that flow out of Southeast Asia in particular from Cambodia, China, Laos, Myanmar Thailand and Vietnam. Second, we shall examine the focus of organized crime that have emerged in order
to support that traffic. Third, we will propose initiatives that are both focused on the demand end of the market chain (rather than on the supply end), and on tho e approaches than give emphasis to persuasion' rather
than punishment and prohibition.
Law
https://ro.uow.edu.au/lawpapers/76
oai:ro.uow.edu.au:lawpapers-1087
2010-09-01T01:15:44Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Concepts of Maritime Security: A Strategic Perspective on Alternative Visions for Good Order and Security at Sea, with Policy Implications for New Zealand
Rahman, Christopher
Journal Article
2009-01-01T08:00:00Z
policy
sea
order
good
visions
alternative
perspective
strategic
zealand
security
implications
maritime
concepts
Rahman, C. (2009). Concepts of Maritime Security: A Strategic Perspective on Alternative Visions for Good Order and Security at Sea, with Policy Implications for New Zealand Wellington, NZ : Centre for Strategic Studies: New Zealand, Victoria University of Wellington.
This project originated as a research report conducted for the Royal Australian Navy’s Sea Power
Centre – Australia. Its intent is not to reprise well‐worn ideas of sea power or maritime strategy,
but to address conceptually what is meant by the term “maritime security” in the context of
contemporary ideas of the meaning of “security” itself. In doing so, I have purposefully delved
into some of the often quite dense and sometimes arcane literature and ideas regarding
conceptual treatments of security. This is important, because the ideas inherent in different
perspectives on maritime security often have an intellectual or political lineage linking directly to
perspectives on security, in general.
The analysis inevitably reflects my own bias as an academic strategist, and treats the conceptual
debate with what one hopes is a healthy scepticism. Indeed, despite the conceptual nature of the
subject matter, I have attempted to link the analysis to real world strategic issues of relevance.
Ultimately, the discussion paper offers some practical implications for both policymakers and
navies, keeping in mind the important injunction that strategy, ultimately, is a practical matter,
with real world consequences. Because it was originally drafted for the Royal Australian Navy
(RAN), there are a number of Australian examples used throughout. In the main, I have revised
the original work with a new emphasis upon its relevance to the New Zealand situation. During
the revision, however, it became clear that much of the Australian policy experience with
maritime security and management issues remains relevant to New Zealand, and it is hoped that
there will be opportunities for lessons to be learned both from Australia’s policy advances and its
missteps.
Law
https://ro.uow.edu.au/lawpapers/85
oai:ro.uow.edu.au:lawpapers-1098
2011-05-09T02:03:01Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Talkin' 'bout law's generations: Intergenerational Differences in Reading Legal Texts
Leiboff, Marett
Conference Paper
2010-01-01T08:00:00Z
legal
texts
bout
talkin
law
generations
intergenerational
differences
reading
<p>Leiboff, M. (2010). Talkin' 'bout law's generations: Intergenerational Differences in Reading Legal Texts. Australian Society of Legal Philosophy</p>
<p>This paper describes a project I am currently undertaking which seeks to find out if generational differences affect the reading of legal texts, with the potential to compromise the possibility of textual integrity in law. I am calling this concept ‘intergenerational interpretative dissonance’. Using an empirical study (which is currently on foot), the project is drawing on ‘pop culture’ generations to undertake a quiz-style survey to explore differences in knowledge, history and meanings about non-legal events in order to establish what non-legal knowledge is shared (or not) by different generations of lawyers. The survey is being used to provide background to inform interviews with individuals which will interrogate whether historically or generationally specific knowledge, analogies and allusions are shared by different generations of lawyers through the reading by participants of an extract of a small pool of cases which rely on historically-specific examples. It is expected the study will find that ‘intergenerational interpretative dissonance’ will affect the reading of cases, and is thus likely to suggest that communicative integrity between different generations of lawyers cannot be vouchsafed. Moreover, any generation of lawyer will be affected by it, thus suggesting that our reading of cases outside our own time and space can only ever be partial.</p>
Law
https://ro.uow.edu.au/lawpapers/95
oai:ro.uow.edu.au:lawpapers-1092
2011-05-09T02:13:22Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
China's maritime strategic agenda
Rahman, Christopher
Journal Article
2010-01-01T08:00:00Z
china
strategic
maritime
agenda
<p>Rahman, C. (2010). China's maritime strategic agenda. ASPI Policy Analysis, (28 April 2010),</p>
<p>Just what’s China up to at sea? To casual observers, including a burgeoning legion of journalists, commentators and bloggers, China seems set on a path to becoming a major force on the world’s oceans, developing bluewater naval power with which to protect the Chinese state’s expanding economic ties to far-flung corners of the world and project political and even strategic influence. Such observers rightly note the rapid growth in China’s international seaborne trade, its shipping and shipbuilding sectors, and its marine economy and maritime interests in general. China’s naval developments over the past decade have been widely commented on, especially its high-profile purchase of Russian surface, submarine and aircraft platforms, its indigenous construction of both conventional and nuclear-powered submarines, and the People’s Liberation Army (PLA) Navy’s groundbreaking and ongoing deployment of an anti-piracy flotilla to the Gulf of Aden. And, in the past year or so, the blogosphere and reputable security forums alike have lit up with speculation on the imminent start on the construction of China’s first aircraft carrier.</p>
Law
https://ro.uow.edu.au/lawpapers/89
oai:ro.uow.edu.au:lawpapers-1097
2011-05-09T02:08:44Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Alice through the wormhole: reconciling spatial and temporal disjunctions in the creation of content in Australian media law
Leiboff, Marett
Conference Paper
2010-01-01T08:00:00Z
australian
content
media
creation
law
disjunctions
alice
temporal
wormhole
spatial
reconciling
<p>Leiboff, M. (2010). Alice through the wormhole: reconciling spatial and temporal disjunctions in the creation of content in Australian media law. Balancing Rights and Interests in the 21st Century: An Intellectual Property, Media and Communications Law Roundtable UTS Sydney: UTS.</p>
<p>Copy of powerpoint presentation to the conference.</p>
Law
https://ro.uow.edu.au/lawpapers/94
oai:ro.uow.edu.au:lawpapers-1102
2011-05-09T01:02:25Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Regional fisheries management in ocean areas surrounding Pacific Islands States
Hanich, Quentin
Conference Paper
2010-01-01T08:00:00Z
islands
pacific
surrounding
areas
ocean
management
fisheries
states
regional
Hanich, Q. (2010). Regional fisheries management in ocean areas surrounding Pacific Islands States. In H. Terashima (Eds.), Proceedings of the International Seminar on Islands and Oceans (pp. 195-212). Tokyo, Japan: Ocean Policy Research Foundation.
Law
https://ro.uow.edu.au/lawpapers/99
oai:ro.uow.edu.au:lawpapers-1101
2011-05-09T01:00:07Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Sovereignty and cooperation in regional Pacific tuna fisheries management: Politics, economics, conservation and the vessel day scheme
Hanich, Quentin A
Parris, Hannah
Tsamenyi, Ben M
Journal Article
2010-01-01T08:00:00Z
cooperation
sovereignty
vessel
conservation
economics
politics
management
fisheries
scheme
tuna
day
pacific
regional
Hanich, Q. A., Parris, H. & Tsamenyi, B. M. (2010). Sovereignty and cooperation in regional Pacific tuna fisheries management: Politics, economics, conservation and the vessel day scheme. Australian Journal of Maritime and Ocean Affairs, 2 (1), 2-15.
Law
https://ro.uow.edu.au/lawpapers/98
oai:ro.uow.edu.au:lawpapers-1094
2011-05-09T01:00:07Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Responsibility and the representation of suffering: Australian law in black and white
Mohr, Richard
Journal Article
2010-01-01T08:00:00Z
black
law
australian
suffering
white
representation
responsibility
Mohr, R. (2010). Responsibility and the representation of suffering: Australian law in black and white. e-Cadernos CES, 7 123-146.
Abstract: This article critically analyses the concept of suffering, with particular emphasis on responsibility for and representations of suffering. Suffering is seen as a social relationship, with objective characteristics, classified by Renault as domination, deprivation and the weakening of intersubjective supports (désaffiliation). Veitch and Wolcher have inquired into legal responsibility for suffering. The author adds that suffering is also constructed subjectively, through aesthetic, political and legal representations. This theoretical model of suffering is applied to recent political and legal issues in Australia dealing with an apology for earlier policies of removing Indigenous children from their families, and a more recent aggressive “emergency response” to concerns over child abuse in Aboriginal communities. Indigenous Australians have clearly suffered from colonisation and subsequent policies, while representations of their suffering can be seen to have exacerbated their disempowerment and thus increased suffering. The article proposes recognising responsibility while avoiding the disempowerment of “victims”. It concludes by proposing new approaches to domination, deprivation and disempowerment that may open the way to new constructions of political subjectivity, fostering the redevelopment of intersubjective supports, while increasing awareness of the past causes of suffering.
Law
https://ro.uow.edu.au/lawpapers/91
oai:ro.uow.edu.au:lawpapers-1099
2011-05-09T02:04:55Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
"Talkin' 'bout law's generations: an empirical and jurisprudential investigation into the reading of legal cases by different generations of lawyers"
Leiboff, Marett
Conference Paper
2010-01-01T08:00:00Z
legal
different
reading
lawyers
into
investigation
jurisprudential
cases
empirical
generations
law
bout
talkin
<p>Leiboff, M. (2010). "Talkin' 'bout law's generations: an empirical and jurisprudential investigation into the reading of legal cases by different generations of lawyers". 27th Annual Conference of the Law and Society Association of Australia and New Zealand</p>
<p>The Australian TV comedy quiz show, Talkin’ ‘bout your generation, pits the knowledge of three different teams of generations against each other. Like a highlystrung game of trivial pursuit, the show’s comedy darkly exposes the speed with which knowledge, language and meaning is lost and misinterpreted across and between generations. This pilot study, Talkin’ ‘bout law’s generations takes its cue from its namesake, by discovering if legal interpretation is similarly affected. But the character of legal interpretation being explored is not uni-dimensional, and is instead exploring if (and how) social, political, historical and linguistic knowledge is deployed by its interpreters. Thus, it would appear axiomatic that different generations of lawyers will read and interpret case law differently, because of the loss of these other knowledges.</p>
Law
https://ro.uow.edu.au/lawpapers/96
oai:ro.uow.edu.au:lawpapers-1113
2011-09-02T04:02:48Z
publication:bal
publication:reports
publication:lawpapers
publication:document_types
Public Health at Risk: a US Free Trade Agreement could threaten access to medicines in Thailand
Kuanpoth, Jakkrit
Kripke, Gawain
Weinberg, Stephanie
Report
2006-01-01T08:00:00Z
could
agreement
access
medicines
free
us
risk
health
trade
threaten
thailand
public
<p>J. Kuanpoth, G. Kripke & S. Weinberg (2006). Public Health at Risk: a US Free Trade Agreement could threaten access to medicines in Thailand. Oxford, UK: Oxfam International.</p>
<p>Even though the world faces the threat of potential new epidemics like avian influenza, the effects of trade rules on public health attract little attention. Governments recently reaffirmed their commitment to meet the Millennium Development Goals which include combating HIV/AIDS, malaria and other major diseases, yet little attention is given to the implications of United States Free Trade Agreements (US FTAs) with developing countries such as Thailand, for access to affordable medicines to treat those diseases. These FTAs do much more than regulate tariffs for cross-border trade in goods and services: they change the rules of intellectual property protection in ways that will undermine public health by limiting access to affordable medicines. This report seeks to draw attention to the potential effect on access to medicines of new intellectual property rights protections in US J:TAs. It is part of Oxfam's broader critique of trade rules in FTAs that have adverse effects on development and poverty. reduction. 1 Thailand is a positive example of a developing country that has created effective programs to address the HIV/AIDS epidemic, having invested in prevention and treatment early on. More than 1 million women, men, and children have contracted HIV in Thailand and more than 500,000 people have died of AIDS since the outbreak of the epidemic. Thailand's prevention efforts, which helped avoid more than 5 million new infections, are widely recognized as a success story among developing countries. Nevertheless, there are still around 20,000 new infections each year, with half of new adult infections occurring among women. By preventing a much larger epidemic, Thailand avoided much larger treatment costs. For every baht invested in prevention and treatment in the 1990s, Thailand saved 43 baht in added treatment costs. In 2000 the Ministry of Public Health created the National Access to Antiretroviral Program for People Living with HIV/AIDS (NAPHA), providing a wide range of triple-drug antiretroviral (ARV) therapy. Two years later, the Government Pharmaceutical Organization (GPO) began producing its first ARV triple drug 'cocktail' called GPO-vir for 1,200 baht ($ 31) per patient per month, compared with 18,620 baht ($ 490) for importeo, brand-name drugs. As a result of these efforts, the Thai government has been able to provide ARV drugs to increasing numbers of people who need them. The most important factor making this possible has been the government's ability to procure inexpensive generic drugs. With the introduction of GPO-vir, the HIV/AIDS treatment program was expanded more than eight-fold from 20012003 with only a 40 per cent increase in bUdget. Thanks to the availability of these generic medicines, the government is able to offer life-saving HIV/AIDS medicines to approximately 80,000 people, with plans to expand the program in coming years.</p>
Law
https://ro.uow.edu.au/lawpapers/102
oai:ro.uow.edu.au:lawpapers-1114
2011-09-26T04:48:05Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Building future sustainability and democratic practices: The role of adult education in post-conflict communities
Lysaght, Georgia
Kell, Peter
Journal Article
10.5172/ijtr.9.1-2.152
2011-01-01T08:00:00Z
sustainability
adult
education
post
role
conflict
practices
communities
democratic
building
future
G. Lysaght & P. Kell, 'Building future sustainability and democratic practices: The role of adult education in post-conflict communities' (2011) 9 (1-2) International Journal of Training Research 152-163.
This paper documents and analyses a range of literature and policy statements that identifies issues and looks at the role which adult education plays in building communities and peace in post-conflict states.
This paper explores and documents these developments in countries in close proximity to Australia which have been viewed by the former Australian government as constituting an 'arc of instability'. This is a term which will be critically discussed in the paper for the way in which it positions the nations of the Pacific and Australia's foreign policy as well as its aid and development policy.
This paper reviews existing orthodox approaches to the region and development and discusses the criticisms that have been levelled at the status quo
Law
https://ro.uow.edu.au/lawpapers/103
oai:ro.uow.edu.au:lawpapers-1117
2012-11-12T04:35:10Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Taiwan's engagement in the developing international legal regime for fishing implications for Taiwanese officials and fishers
Gullett, Warwick
Journal Article
2004-01-01T08:00:00Z
officials
taiwanese
implications
fishing
fishers
regime
legal
developing
engagement
taiwan
international
<p>Gullett, W, Taiwan's engagement in the developing international legal regime for fishing implications for Taiwanese officials and fishers, The Taiwan Ocean Law Review, 3(2), 2004, 163-216.</p>
Law
https://ro.uow.edu.au/lawpapers/105
oai:ro.uow.edu.au:lawpapers-1119
2012-11-12T04:30:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Developments in Australian fisheries law: setting the law of the sea convention adrift?
Gullett, Warwick
Journal Article
2004-01-01T08:00:00Z
convention
adrift
developments
law
australian
sea
setting
fisheries
<p>Gullett, W, Developments in Australian fisheries law: setting the law of the sea convention adrift?, Environmental and Planning Law Journal, 21(3), 2004, 169-176. Copyright Lawbook Co 2004.</p>
<p>Significant developments have recently occurred in the ongoing campaign by the Australian Government to combat illegal foreign fishing in Australian waters, particularly against Patagonian toothfish poaching. On 22 March 2004 significant amendments to Australia’s fisheries laws were passed by the Commonwealth Parliament to improve regulatory efficiency and combat illegal foreign fishing in the Australian Fishing Zone (AFZ). In addition, on 12 March 2004 the Federal Court of Australia delivered a landmark decision in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 concerning the automatic forfeiture of foreign vessels to the Commonwealth of Australia at the time when a fisheries offence occurs rather than upon apprehension. It is argued that the Federal Court’s decision and the amendments increase the disparity between measures Australia has adopted within its domestic legal regime to deter illegal foreign fishing in the AFZ and its responsibilities under the UN Convention on the Law of the Sea (LOSC).</p>
Law
https://ro.uow.edu.au/lawpapers/107
oai:ro.uow.edu.au:lawpapers-1120
2012-11-12T04:29:22Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Smooth sailing for Australia's automatic forfeiture of foreign fishing vessels
Gullett, Warwick
Journal Article
2005-01-01T08:00:00Z
fishing
vessels
smooth
automatic
australia
foreign
forfeiture
sailing
<p>Gullett, W, Smooth sailing for Australia's automatic forfeiture of foreign fishing vessels, Environmental and Planning Law Journal, 22(3), 2005, 169-173. Copyright Lawbook Co 2005.</p>
<p>The High Court of Australia has brought to a close one chapter of the various legal proceedings arising out of Australia’s arrest of the Russian fishing vessel Volga in 2002. The vessel was arrested on the high seas immediately adjacent to Australia’s Exclusive Economic Zone (EEZ) surrounding the Heard and McDonald Islands in the Southern Ocean. It was suspected (and later found as a matter of fact) to have been engaged in unlawful fishing for the prized Patagonian Toothfish within Australia’s EEZ two to three weeks prior to its detection and seizure by Australian authorities. The circumstances of the seizure and detention of the vessel and its senior crew led to a number of domestic legal proceedings in the Western Australian District and Supreme Courts and the Federal Court of Australia. There was also a largely successful application by Russia to the International Tribunal for the Law of the Sea (ITLOS) for the prompt release of the vessel. ITLOS ordered Australia to promptly release the vessel upon the posting of what it considered to be a reasonable bond or other security of A$1.92 million. The ITLOS case concerned only the issue of the reasonableness of the conditions Australia set for the release of the vessel as required by the United Nations Convention on the Law of the Sea (LOSC).</p>
Law
https://ro.uow.edu.au/lawpapers/108
oai:ro.uow.edu.au:lawpapers-1118
2012-11-12T04:34:00Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Relying on fishy advice: The Ostrowski decision
Gullett, Warwick
Journal Article
2004-01-01T08:00:00Z
decision
ostrowski
advice
fishy
relying
<p>Gullett, W, Relying on fishy advice: The Ostrowski decision, Environmental and Planning Law Journal, 21(4), 2004, 245-248. Copyright Lawbook Co 2004.</p>
<p>On 16 June 2004, the High Court of Australia decided in Ostrowski v Palmer [2004] HCA 30 that the defence of honest and reasonable mistake of fact cannot be used on the basis that a commission of a strict liability offence was induced by the provision of misleading advice from a government agency. In the case the High Court reinstated a conviction against a Western Australian rock lobster fisherman for fishing in a marine life protection zone despite the fact that the fisherman, Mr Jeffrey Palmer, had gone to the WA Fisheries Department to find out where he could fish, and had received and acted on misleading advice from the Department. All five justices who heard the case felt compelled to uphold the principle that ignorance of the law is no excuse despite the obvious harshness of the result for Mr Palmer. The decision is instructive for its clarification of the operation of the honest and reasonable mistake defence enshrined in all Australian jurisdictions, the conduct of prosecutions where harsh penalties will be imposed on people who honestly and reasonably believe they are acting within the law, and the responsibility government departments have to provide accurate information to the public on the laws they administer.</p>
Law
https://ro.uow.edu.au/lawpapers/106
oai:ro.uow.edu.au:lawpapers-1122
2012-11-12T04:28:22Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
Fisheries
Gullett, Warwick
Book Chapter
2006-01-01T08:00:00Z
fisheries
<p>Gullett, W. (2006). Fisheries. In M. D. Farrier & P. Stein (Eds.), Environmental Law Handbook: Planning and Land Use in NSW (pp. 633-660). University of NSW, Sydney: University of NSW Press Ltd.</p>
Law
https://ro.uow.edu.au/lawpapers/110
oai:ro.uow.edu.au:lawpapers-1131
2012-11-12T04:16:05Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
In defence of the precautionary principle
Gullett, Warwick
McShane, P
Journal Article
2003-01-01T08:00:00Z
precautionary
defence
principle
<p>Gullett, W and McShane, P, In defence of the precautionary principle, The Queensland Fisherman, 21(4), 2003, 25-27.</p>
Law
https://ro.uow.edu.au/lawpapers/119
oai:ro.uow.edu.au:lawpapers-1128
2012-11-12T04:20:07Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Enforcing bycatch reduction in trawl fisheries: legislating for the use of turtle exclusion devices
Gullett, Warwick
Journal Article
2003-01-01T08:00:00Z
trawl
bycatch
fisheries
legislating
turtle
exclusion
devices
reduction
enforcing
<p>Gullett, W, Enforcing bycatch reduction in trawl fisheries: legislating for the use of turtle exclusion devices, Environmental and Planning Law Journal, 20, 2003, 195-210. Copyright Lawbook Co 2003.</p>
<p>The mandatory use of bycatch reduction devices (BRDs) in prawn trawl fisheries is now commonplace in Australia. BRDs are designed to allow unwanted or juvenile species to escape fishing nets with consequent benefits for the abundance of such species, species which prey on them, and general ecosystem integrity. In the Queensland East Coast Trawl Fishery, as well as in a handful of other Australian prawn trawl fisheries, specific turtle excluder devices (TEDs) are required to prevent turtles from entering the codend section of trawl nets. This article reviews international and Australian legal measures to protect turtles from prawn trawl fishing activities. It focuses on the difficult task fisheries officers in Queensland were presented with in 2002 when they attempted to prosecute two fishers for alleged non-compliance with their licence requirement to use a device which enables turtles to escape “immediately” after being taken in the net. A review is presented of this case which highlights the difficult task of securing convictions for alleged non-compliance with fisheries regulations where scientific uncertainty compounds the establishment of the required evidentiary burden of proof. The decision in the case exposes the challenge drafters of legislation face when they attempt to translate sound fisheries management objectives into effective and enforceable law.</p>
Law
https://ro.uow.edu.au/lawpapers/116
oai:ro.uow.edu.au:lawpapers-1126
2012-11-12T04:22:24Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Book review. The precautionary principle in practice
Gullett, Warwick
Journal Article
2006-01-01T08:00:00Z
book
principle
precautionary
review
practice
<p>Gullett, W, Book Review. The precautionary principle in practice, Rural Society, 16(2), 2006, 218-219.</p>
<p>Since 1992, when the precautionary principle reached centre stage in environmental discourse at the Rio Earth Summit, the literature on the principle has increased exponentially. The literature’s two main streams reflect the principle’s application in the fields of environmental management and public health. In the former field, the principle has generally been an issue either in approval processes for project developments or in management arrangements for the exploitation of natural resources.</p>
Law
https://ro.uow.edu.au/lawpapers/114
oai:ro.uow.edu.au:lawpapers-1135
2012-11-12T04:07:37Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Environmental decision-making in a transboundary context: principles and challenges for the Denmark-Sweden Øresund fixed link
Gullett, Warwick
Journal Article
10.1142/S1464333200000473
2000-01-01T08:00:00Z
fixed
decision
link
making
context
principles
denmark
sweden
environmental
transboundary
challenges
øresund
<p>Gullett, W, Environmental decision-making in a transboundary context: principles and challenges for the Denmark-Sweden Øresund fixed link, Journal of Environmental Assessment Policy and Management, 2(4), 2000, 503-533.</p>
<p>It is now possible to identify projects or activities in many countries whose policy objectives of promoting “sustainable development” have been achieved. The philosophy underlying the “sustainable development” concept captures misgivings about the nature of development and about social and technological ability to avoid further deterioration of the environment. Although many of the advances in environmental law and theory have occurred in international forums, implementation of sustainable development principles is less evident at the international than at the local level. The is due, in large part, to the difficulties created by multiple jurisdictions and the increased complexity of regional or global environmental problems. This paper considers the challenges and opportunities that exist for improving the implementation of the precautionary principle as a sustainability objective at the international level. It concentrates upon approval processes for development projects with potential crossborder environmental effects. A case study is provided of the decision making process for the Øresund Fixed Link between Denmark and Sweden.</p>
Law
https://ro.uow.edu.au/lawpapers/123
oai:ro.uow.edu.au:lawpapers-1133
2012-11-12T04:12:11Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Transportation system - China
Gullett, Warwick
Journal Article
2002-01-01T08:00:00Z
system
china
transportation
<p>Gullett, W, Transportation system - China, Encyclopedia of Modern Asia, 5, 2002, 527-528.</p>
Law
https://ro.uow.edu.au/lawpapers/121
oai:ro.uow.edu.au:lawpapers-1134
2012-11-12T04:09:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Ustyurt Plateau
Gullett, Warwick
Oakman, D
Journal Article
2002-01-01T08:00:00Z
ustyurt
plateau
<p>Gullett, W and Oakman, D, Ustyurt Plateau, Encyclopedia of Modern Asia, 2002, 6 40.</p>
Law
https://ro.uow.edu.au/lawpapers/122
oai:ro.uow.edu.au:lawpapers-1125
2012-11-12T04:23:07Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Contesting the merits of aquaculture development: Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426
Gullett, Warwick
Journal Article
2006-01-01T08:00:00Z
development
aquaculture
merits
minister
v
ltd
pty
pearls
port
426
nswlec
planning
infrastructure
contesting
stephens
2005
<p>Gullett, W, Contesting the merits of aquaculture development: Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426, Australasian Journal of Natural Resources Law and Policy, 11(1), 2006, 109-117.</p>
<p>Australia's aquaculture industry has grown rapidly since the mid-1990s. It has become the fastest growing industry in the primary sector and is a valuable contributor to development in regional areas. However, there is increasing community concern about the potential environmental impacts of aquaculture. Concerns vary enormously depending on the type of aquaculture activities but they typically include habitat modification, marine floor degradation, diminished water quality, disease, translocation of aquatic organisms, cumulative impacts and, particularly in highly populated coastal stretches (such as in New South Wales ('NSW')), effects on amenity values. The challenge is to develop an approval process for aquaculture proposals that ensures that likely and potential environmental impacts are avoided, reduced or otherwise managed while not unnecessarily restricting the development of the industry. Compounding this challenge is the fact that many coastal ecosystems are already subjected to a range of anthropogenic stresses. Further, most Australian aquaculture operations are marine based and therefore involve the use of public space. This involves the perceived or actual alienation of public space for private purposes. As a result, the regulatory framework for aquaculture must, in addition to assessing environmental impacts, aim to achieve a balance between aquaculture needs and other legitimate uses of the marine environment. (This is commonly referred to as 'Integrated Coastal Zone Management'.) There are Australian and state government efforts to promote the development of the aquaculture industry, yet there is often public opposition to proposals, especially where these are seen to conflict with other industries, notably tourism and recreational pursuits (such as yachting). Two recent NSW aquaculture proposals have polarised regional communities: the extension of mussel culture in Twofold Bay at Eden on the State's south coast, and approval of pearl farming in Port Stephens on the State's central coast. In Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 (decision 15 August 2005), the Land and Environment Court allowed the developer's appeal against the decision of the Minister to reject development consent. The Minister's decision had run counter to advice from his own department. The case highlights the protracted approval process for aquaculture development in NSW and how environmental issues are assessed and weighed by the Land and Enviromnent Court.</p>
Law
https://ro.uow.edu.au/lawpapers/113
oai:ro.uow.edu.au:lawpapers-1132
2012-11-12T04:12:58Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Balancing short term impacts and long term interests in fisheries management decisions
Crosthwaite, K
Gullett, Warwick
Journal Article
2002-01-01T08:00:00Z
long
short
impacts
fisheries
term
management
balancing
decisions
interests
<p>Crosthwaite, K and Gullett, W, Balancing short term impacts and long term interests in fisheries management decisions, Justice v Australian Fisheries Management Authority, National Environmental Law Review, 2(June), 2002, 39-46.</p>
<p>In the latest of a series of merits review decisions by the Administrative Appeals Tribunal (AAT) concerning the correct construction to be given to the Australian Fisheries Management Authority's (AFMA's) statutory objective to ensure that the exercise of the precautionary principle is 'pursued', the AAT has affirmed the decision under review as having being made reasonably and correctly in pursuit of the principle. This article explains the reason for the AAT's recent decision in Craig Justice v Australian Fisheries Management Authority and Executive Director, Department of Fisheries Western Australia (hereafter Justice v AFMA) which affirmed AFMA's implementation of the consultative approach required by legislation and provided further support for AFMA's interpretation and implementation of its statutory requirement to manage fisheries in a manner consistent with the precautionary principle.</p>
Law
https://ro.uow.edu.au/lawpapers/120
oai:ro.uow.edu.au:lawpapers-1129
2012-11-12T04:18:10Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Substantive precautionary decision-making: the Australian fisheries management authority's 'lawful pursuit' of the precautionary principle
Gullett, Warwick
Paterson, Christopher
Fisher, Elizabeth
Journal Article
2001-01-01T08:00:00Z
authority
lawful
pursuit
principle
fisheries
australian
making
decision
precautionary
management
substantive
<p>Gullett, W, Paterson, C and Fisher, E, Substantive precautionary decision-making: the Australian fisheries management authority's 'lawful pursuit' of the precautionary principle, Australasian Journal of Natural Resources Law and Policy, 7, 2001, 95-139.</p>
<p>In this article, the authors review recent Administrative Appeals Tribunal decisions concerning the Australian Fisheries Management Authority's exercise of discretionary powers in pursuit of its statutory objective to ensure that the exploitation of fisheries resources is conducted in a manner consistent ,vith the exercise of the precautionary principle. The most recent of a series of Tribunal decisions which have affirmed the Authority's interpretation and application of the principle as contained in the Fisheries Management Act 1991 (Cth) is discussed in detail, together with Federal Court rulings concerning the content of the Authority's statutory obligation to ensure that fisheries cxploitation maximises economic efficiency and is consistent with ecologically sustainable development. The wider relevance of the decisions is explored with respect to state fisheries legislation and the growing expectation that the management of Australian fisheries will be in a manner consistent with the precautionary approach adopted in international fisheries agreements.</p>
Law
https://ro.uow.edu.au/lawpapers/117
oai:ro.uow.edu.au:lawpapers-1139
2012-11-12T04:01:07Z
publication:book_chapters
publication:bal
publication:lawpapers
publication:document_types
Policy choice for sustainability: marketization, law and institutions
Dovers, Stephen
Gullett, Warwick
Book Chapter
1999-01-01T08:00:00Z
law
sustainability
policy
choice
institutions
marketization
<p>Dovers, S and Gullett, W, Policy choice for sustainability: marketization, law and institutions, in Bosselmann, K and Richardson, B (eds) Environmental justice and market mechanisms: key challenges for environmental law and policy, The Netherlands, Kluwer Law International, 1999, 110-128.</p>
Law
https://ro.uow.edu.au/lawpapers/127
oai:ro.uow.edu.au:lawpapers-1136
2012-11-12T04:06:52Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Environmental protection and the precautionary principle: a response to scientific uncertainty in environmental management
Gullett, Warwick
Journal Article
1997-01-01T08:00:00Z
scientific
management
protection
environmental
response
uncertainty
precautionary
principle
<p>Gullett, W, Environmental protection and the precautionary principle: a response to scientific uncertainty in environmental management, Environmental and Planning Law Journal, 14(1), 1997, 52-69.</p>
<p>The principle of precautionary action has been presented by some of its advocates as nothing less than a monumental paradigm shift in environmental management. It is essentially a new legal response to the scientific uncertainties surrounding the capacity ofthe environment to cope with the increasing demands placed upon it. This article outlines why our knowledge of environmental processes is inadequate and addresses the rationale and content of the "precautionary principle", tracing its development from an uncontroversial espousal of commonsense to its emergence as a potentially forceful decision-making norm. It will be argued tliat although the principle has definitional and implementational shortcomings, it has the capacity to inform environmental practices systematically as the basis of a regulatory regime — not merely at the policy level.</p>
Law
https://ro.uow.edu.au/lawpapers/124
oai:ro.uow.edu.au:lawpapers-1137
2012-11-12T04:06:05Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Environmental impact assessment and the precautionary principle: legislating caution in environmental protection
Gullett, Warwick
Journal Article
1998-01-01T08:00:00Z
principle
legislating
caution
protection
impact
environmental
assessment
precautionary
<p>Gullett, W, Environmental impact assessment and the precautionary principle: legislating caution in environmental protection, Australian Journal of Environmental Management, 5(3), 1998, 146-158.</p>
<p>A noteworthy feature of international environmental discourse since the late-1980s has been the shift toward anticipatory policies. Precaution is the leading policy approach that has emerged to guide environmental decision-makers confronted with inadequate information. The "precautionary principle" has found expression in Australia in the 1992 Intergovernmental Agreement on the Environment, various Commonwealth environmental management strategies and a number of pieces of Commonwealth and State legislation. It also has been accepted tentatively by the courts as a factor which should be taken into account in appropriate circumstances. However, existing Australian environmental management approaches fail to advance precaution in a substantive manner. Most hope for the advancement of precaution has rested on its potential to be a mandatory consideration by ministerial authorities when exercising planning powers. However, courts have cast doubt on the legal status of the principle because of the typically weak formulations of it in legislation and policy documents. In this article, a method is suggested by which the principle could be integrated systematically in environmental planning so that it could be given effect in environmental management practice. The writer proposes that environmental impact assessment (EIA) Australia's foremost environmental protection regime should be modified to give effect to the precautionary principle. A three-step method by which this could be achieved is presented. First, the EIA trigger of environmental 'significance' must be broadened; second, uncertainties must be assessed; and third, environmental uncertainty must have greater influence in decision-making.</p>
Law
https://ro.uow.edu.au/lawpapers/125
oai:ro.uow.edu.au:lawpapers-1138
2012-11-12T04:03:59Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
The precautionary principle in Australia: policy, law and potential precautionary EIAs
Gullett, Warwick
Journal Article
2000-01-01T08:00:00Z
principle
law
potential
eias
australia
precautionary
policy
<p>Gullett, W, The precautionary principle in Australia: policy, law and potential precautionary EIAs, Risk: Health, Safety and Environment, 11(2), 2000, 93-124.</p>
<p>The precautionary principle has been adopted in such a widespread fashion that it is now difficult to find in either the international environmental arena or countries with advanced environmental protection frameworks an environmental policy document, a new environmental law, or even a political statement about environmental management that does not include a reference to the principle or reflect some of the core ideas of the precautionary concept. References to the principle can be found in documents produced by organizations such as the European Environment Agency, the World Trade Organization, and of course the United Nations; in numerous environmental treaties ranging from the management of straddling fish stocks to the prevention of pollution in the North Sea; in domestic and provincial environmental legislation; as well as in a plethora of domestic environmental policies and strategies. That the precautionary principle/approach is commonplace internationally (and, in fact, is considered by many to have crystallized into a norm of customary international law) and in domestic jurisdictions, is a testament to the soundness of the concept and the usefulness of considering precaution when devising environmental management and protection strategies.</p>
Law
https://ro.uow.edu.au/lawpapers/126
oai:ro.uow.edu.au:lawpapers-1123
2013-03-11T03:06:23Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Cancellation provisions in Australia's Commonwealth-managed fisheries
Mason, Richard
Gullett, Warwick
Journal Article
10.1016/j.marpol.2004.12.004
2006-01-01T08:00:00Z
provisions
australia
managed
cancellation
fisheries
commonwealth
<p>Mason, R and Gullett, W, Cancellation provisions in Australia's Commonwealth-managed fisheries, Marine Policy, 30(3), 2006, 270-280.</p>
<p>In its recently completed review of Commonwealth fisheries policy the Australian Government, following submissions from the commercial fishing industry, agreed to examine the implications of replacing the power in the Fisheries Management Act 1991 (FM Act) to cancel fishing concessions for non-compliance with management measures that increased financial penalties. Industry argued that the cancellation provisions undermine the security of access rights and the Australian Government had accepted that the current provisions may be an impediment to investment in Commonwealth-managed fisheries. This paper reviews these concerns in light of property rights and compliance issues and concludes that there are no compelling reasons for removing cancellation provisions from the FM Act. On the contrary, these provisions provide a powerful deterrent to non-compliance, which is unlikely to be matched by financial penalties alone. Nevertheless, it is suggested that a review of the way fisheries offences are dealt with under the Act is undertaken and that the level of current financial penalties be reviewed.</p>
Law
https://ro.uow.edu.au/lawpapers/111
oai:ro.uow.edu.au:lawpapers-1124
2012-11-12T04:24:32Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Up the creek and out at sea: the resurfacing of the public right to fish
Gullett, Warwick
Journal Article
2006-01-01T08:00:00Z
sea
out
creek
fish
up
right
public
resurfacing
<p>Gullett, W, Up the creek and out at sea: the resurfacing of the public right to fish, Maritime Studies, 146 (January-February), 2006, 1-11.</p>
<p>The ancient common law public right to fish has had increasing resonance since 2001 when the High Court in Yarmirr denied the existence of asserted exclusive offshore native title rights in large part because of the “fundamental inconsistency” between them and the public right to fish. The Yarmirr decision also established that non-exclusive offshore native title rights must be consistent with the public right. This creates the potential for litigation where it is asserted that actions of native title holders have infringed the public right or where recreational anglers purportedly exercising the public right in an area subject to a native title determination stray beyond the limits of the right. The public right to fish also continues despite exclusive indigenous ownership rights over the foreshore (to the low water mark) where ownership rights exist under legislative land grants. Far from being a matter of mere historical curiosity, the public right to fish has resurfaced with prominence with respect to its intersection with indigenous fishing rights. Further, far from being regulated out of existence, in some jurisdictions the public right to fish has been enshrined in legislation. In NSW it has even been extended to non-tidal rivers and creeks. This paper examines the content of the public right to fish and assesses its enduring significance in light of Yarmirr and post-Yarmirr offshore native title determinations. It argues that the confusion surrounding the interaction between public and indigenous fishing rights may necessitate Parliamentary action to allocate access rights vis-a-vis public and indigenous fishers.</p>
Law
https://ro.uow.edu.au/lawpapers/112
oai:ro.uow.edu.au:lawpapers-1127
2012-11-12T04:21:38Z
publication:journal_articles
publication:bal
publication:lawpapers
publication:document_types
Prompt release procedures and the challenge for fisheries law enforcement: the judgement of the international tribunal for the law of the sea in the 'Volga' case (Russian Federation v Australia)
Gullett, Warwick
Journal Article
2003-01-01T08:00:00Z
challenges
fisheries
law
prompt
enforcement
release
judgement
international
tribunal
sea
volga
case
russian
federation
v
australia
procedures
<p>Gullett, W, Prompt release procedures and the challenge for fisheries law enforcement: the judgement of the international tribunal for the law of the sea in the Volga case (Russian Federation v Australia), Federal Law Review, 31, 2003, 395-407.</p>
<p>On 23 December 2002, the International Tribunal for the Law of the Sea ('ITLOS') ordered the prompt release of the Russian 1ongline fishing vessel Volga, at the time detained by Australian authorities in Fremantle, upon the posting of a bond or other security of A$l 920 000. The Volga was arrested for allegedly fishing without authorisation by a boarding party from the Royal Australian Navy frigate HMAS Canberra in the Australian Exclusive Economic Zone ('EEZ') surrounding Heard and McDonald Islands in the Southern Ocean on 7 Februarv 2002. At issue in the ITLOS proceedings was not whether the activities of the Vo1ga failed to comply with Australian fisheries law, but rather whether the financial security and other requirements, which Australia set as the conditions for release of the vessel, breached Australia's obligation under the UN Convention on the Law of the Sea ('LOSC') to allow the prompt release of detained vessels upon the posting of a 'reasonable bond or other security'. Although the question of what amounts to a 'reasonable' bond has been considered by ITLOS on previous occasions, in each case the dispute centred on the reasonableness of the methods used by the detaining state to set the required financial security; such as how the detained vessel, catch and gear were valued and how the maximum possible fines available under domestic law were determined. The important aspect of the proceedings in The 'Volga' Case was that it was the first time the Tribunal had been asked to consider whether additional non-financial conditions could be set for the release of a detained vessel. It was also the first time Australia had appeared before ITLOS as a respondent. The decision rendered by ITLOS is instructive not only for Australia's future conduct in handling foreign fishing vessels detained for alleged illegal fishing in Australian waters, but also for other coastal countries which face continual pressure from various forms of illegal foreign fishing.</p>
Law
https://ro.uow.edu.au/lawpapers/115
oai:ro.uow.edu.au:lawpapers-1130
2012-11-12T04:17:14Z
publication:bal
publication:conference_papers
publication:lawpapers
publication:document_types
Legal framework and enforcement experience of marine protected areas in Tasmania, New South Wales and Commonwealth waters
Gullett, Warwick
Conference Paper
2003-01-01T08:00:00Z
south
wales
enforcement
commonwealth
experience
framework
marine
legal
protected
areas
tasmania
waters
<p>Gullett, W, Legal framework and enforcement experience of marine protected areas in Tasmania, New South Wales and Commonwealth waters, in Beumer, A, Grant, A and Smith, D (eds), Aquatic protected areas - what works best and how do we know? Proceedings of the World Congress on Aquatic Protected Areas, North Beach, Western Australia: Australian Society for Fish Biology, 2003, 388-397.</p>
<p>With the exception of the Great Barrier Reef Marine Park, there have been no prosecutions for specific offences within marine protected areas (MPAs) in Australia at the federal level or in Tasmania and New South Wales. However, it cannot be assumed that compliance is responsible for this lack of prosecutions. Rather, in some cases, enforcement officers prosecute offences under more general provisions found in fisheries legislation than under provisions for specific offences created in MPAs. In other cases, there has been a long lag time between the declaration of MPAs and the adoption of comprehensive and effective legislative arrangements creating offences for specific activities within them. Hence, there may be periods during which MPA regimes fail to give adequate legal support to the environmental objectives they seek to achieve, partly because of the need to 'phase out' existing fishing activities. Additionally, they may fail to prohibit inappropriate activities immediately adjacent to MPAs. This paper examines the legal regimes that exist to establish MPAs in Tasmania, New South Wales and areas under federal jurisdiction and the offences recognised to ensure the protection of ecological values. Those analysed are regimes set up under 'umbrella' MPA Acts, site-specific Acts and other legislative arrangements using existing fisheries legislation. It is concluded that a legislative system allowing the award of modest rather than severe penalties would increase the likelihood of prosecution and would complement educative measures aimed at ensuring compliance.</p>
Law
https://ro.uow.edu.au/lawpapers/118
173273/simple-dublin-core/100//