Faculty of Law - Papers

Australian Jihad: Radicalisation and Counter-Terrorism

Samuel J. Mullins — Mon, 23 Jan 2012 17:48:32 PST

This ARI summarises the findings from an-depth empirical study of all publicly-confirmed cases of Islamist terrorism involving Australians. The domestic situation of Australian Muslims is briefly described, followed by an overview of Islamist terrorism cases to date, including the number and location of cases and the level of threat they have presented, both domestically and internationally. The background characteristics of offenders and details of radicalisation are discussed, followed by an examination of the national counter-terrorism (CT) strategy, with a focus upon counter-radicalisation initiatives. Current CT tactics appear to be appropriate to the nature of the threat; however, it will be important to closely monitor preventive measures in order to avoid a potential backlash similar to that in the UK, and to make sure that they are appropriately targeted.

Optimizing voluntary compliance in marine protected areas: A comparison of recreational fisher and enforcement officer perspectives using multi-criteria analysis

Andrew Read — Mon, 23 Jan 2012 17:48:30 PST

A comprehensive list of planning criteria for optimizing compliance in Marine Protected Areas (MPAs) was compiled and used to compare the views of recreational fishers and compliance officers for facili- tating voluntary compliance in the Port Stephens e Great Lakes Marine Park (PSGLMP). Expert working groups were tasked separately with: 1) criteria identification and weighting; 2) scoring of no-take zones; 3) prioritizing and determining uncertainty; and 4) analysis of results and sensitivity testing. Multi- Criteria Analysis (MCA) revealed that both groups had similar perspectives and recommendations, despite weighting the individual planning criteria differently. Significantly, “manageability” scores for no-take zones from MCA appeared to correlate well with past numbers of enforcement actions recorded for each zone. This provides empirical evidence that adopting manageability criteria during the planning of MPAs could lead to a marked increase in voluntary compliance. As a result, greater consideration to compliance planning during MPA design and zoning is recommended in order to optimize voluntary compliance. Whilst the majority of no-take zones in the PSGLMP case study were evaluated as being relatively effective in terms of optimizing voluntary compliance, there remains considerable potential to improve design, management and use of the poorer performing zones. Finally, the study highlighted the value of recreational fisher engagement in MPA planning processes to maximize voluntary compliance and manageability.

Reproductive biology and spawning strategy of the catadromous percichthyid, Macquaria colonorum (Günther, 1863)

Christopher Walsh — Mon, 23 Jan 2012 17:48:29 PST

The reproductive biology and spawning strategy of the iconic catadromous percichthyid, estuary perch Macquaria colonorum was examined from three coastal rivers of south-eastern (SE) Australia. Ovarian and testicular development followed a pattern similar to that of other percichthyids, world-wide. Females were collected in significantly larger sizes and greater numbers from all, and two of the three rivers, respectively. Mean size and age at maturity was greater for females (25.05 cm FL ± 0.85 and 3.75 yrs ± 0.08, respectively) than males (22.21 cm FL ± 0.50 and 3.28 yrs ± 0.08 respectively), with no significant differ- ence between rivers. Trends in gonadosomatic indices indicated that M. colonorum spawn in the austral winter-spring in SE Australia. However, peak spawn- ing occurred earlier (June-August) in the two most northern rivers (Hawkesbury and Clyde) compared with the Bemm River (September-November) further south. Ripe females were captured only in the lower reaches of estuaries throughout the spawning period in all three rivers. Mature M. colonorum females dis- played a group synchronous pattern of oocyte devel- opment suggesting a multiple spawning strategy. Mean batch fecundity (FB) was 266 583±17 821 oocytes per female and relative fecundity was 377 ± 10 oocytes.g-1 body weight. There were significant power relation- ships between FB and fork length (FL), weight and age. Similar to other percichthyids, M. colonorum are long- lived, highly fecund and exhibit a flexible spawning strategy which is attuned to the highly variable environments in which they are found.

The use of an aeration system to prevent thermal stratification of a freshwater impoundment and its effect on downstream fish assemblages

Nathan G. Miles — Mon, 23 Jan 2012 17:48:27 PST

Warm-water riverine fish assemblages were investigated downstream of an impoundment before and after thermal stratification and the associated cold-water pollution was prevented using an aeration system. Temperatures below the dam significantly increased after installation of the aeration system and this correlated with an increased abundance and greater number of species downstream. Overall, aeration appeared to be beneficial for both the lake (upstream) and the downstream riverine environments.

Advancing maritime Australia

Warwick Gullett — Tue, 08 Nov 2011 15:02:09 PST

According to the Australian Institute of Marine Science Index of Marine Industry, Australia is 'one of the great marine nations of the world' with the 'potential to become an oceanic superpower'. This assessment is based on the size of Australia's marine jurisdiction, the extent and variety of the resources within it, and the strength and economic contribution of Australia's marine industries. It is easy to agree with this positive assessment. Part B of this book explains the vast geographical extent of Australia's marine jurisdiction, as well as Australia's rights and responsibilities within this area, and outlines its resources and their potential. The question is, how can Australia achieve this vision of being a leading and effective utiliser, protector and manager of its marine space? The challenge of determining how to do this is the central thread running through this book. This chapter attempts the difficult task of distilling the key issues arising from the efforts to manage Australia's marine resources explored in the book. It does this by identifying and expanding on a number of interrelated themes that have emerged. These narrative strands in the evolving 'story' of the management of Australia's marine resources are not exhaustive. Nevertheless, they help to frame a discussion of the principal concerns and challenges confronting managers of Australia's marine resources. We conclude with a call to 'reconceptualise Australia's marine space in order to advance Australia's maritime affairs.

Australia's marine jurisdictions under international and domestic law

Warwick Gullett — Tue, 08 Nov 2011 15:02:03 PST

This chapter explains Australia's international maritime zones and domestic marine jurisdictions in order to understand the nature and geographical operation of laws that apply in Australian waters. The task of determining the type of laws that can operate in Australian waters, as well as the geographical extent of those laws, is particularly difficult because Australia is a federation. In addition to authorising the Australian Parliament to make certain laws offshore, the Australian Constitution also enables the state parliaments to regulate some offshore activities. It is helpful if these laws are spatially defined so that people can know which laws apply to them when they are conducting activities at a particular location at sea, either on a vessel, in the water column or on the seabed. Yet the seaward limits of these laws may be difficult to locate and some laws may extend further out to sea than other laws. The international dimension provides another layer of complexity. Australia's 'rights' offshore are sourced in, and are limited by, the international 'Law of the Sea'. Yet it also needs to be recognised that international law grants other countries rights in Australian waters.

Girt by sea: the challenge of managing Australia's marine resources

Warwick Gullett — Tue, 08 Nov 2011 15:01:57 PST

Advance Australia Fair includes the words 'Our home is girt by sea'. This line of the national anthem emphasises that Australia, as an island continent, is fundamentally connected to its surrounding oceans. Australians have always had strong associations with the marine environment. Many Australian Aboriginal communities have enduring spiritual connections to coastal areas. Australia's coastal environments, especially the beach, are also an intrinsic facet of the modern Australian way of life. Indeed, Australia has been termed a 'coastal society', an observation that is underscored by the fact that approximately 85 per cent of its population live within 50 kilometres of the coast. Further, maritime Australia encompasses iconic socio-environmental features and landmarks that are deeply important to the Australian identity (such as the Great Barrier Reef and Sydney Harbour), as well as famous events and popular activities (such as the annual Sydney-Hobart yacht race and surfing and recreational fishing). Alternatively, it could be argued that the reference to Australia's surrounding seas in the national anthem is included merely as a means of framing what is perceived as the 'important bit' - the land - and to help identify Australia as separate and distinct from the rest of the world. Some might suggest that the line should instead read 'Our home is girt by beach' to represent more accurately the extent of the average Australian's maritime horizon. However, Australia is undeniably a major maritime country, most obviously in terms of the enormous size of its maritime jurisdiction, but increasingly also in terms of the significance of the marine resources contained within this area.

Marine resources management

Warwick Gullett — Tue, 08 Nov 2011 15:01:50 PST

The idea for this book came from a realisation that although the marine resources in Australia's large offshore areas are varied, valuable and of increasing national significance, these points are often poorly acknowledged and understood. Further, it was apparent to us that a clear understanding of the challenges that arise for the management of Australia's marine environment cannot be achieved without appreciating the complexities and cross-cutting nature of the activities and issues involved. This means that a broad scale perspective is required; one that is informed by contributions from a range of disciplines. Unfortunately, students, scholars and practitioners typically find themselves confined within single disciplines - often as a result of pressure or imperatives to increase knowledge depth. We realised that there was no book dedicated to Australia's marine domain which introduced the key disciplinary approaches and explained intersecting issues that would help to pave the way for the broader perspective we advocate. We therefore set ourselves the task of producing a volume to fill that gap.

Transportation systems

Warwick Gullett — Tue, 08 Nov 2011 15:01:45 PST

As China expands its economy, increases its population, and opens up to the outside world, its political leaders and urban designers face increased pressure to create more efficient and environmentally friendly transportation systems.

Fishing industry - Taiwan

Warwick Gullett — Tue, 08 Nov 2011 15:01:39 PST

Taiwan has one of the largest fishing industries in the world. But because Taiwan no longer holds a seat in the United Nations, it is often left out of standard U.N. doctrines that monitor and regulate fishing. The dilemma of how to handle Taiwan's unique situation while maintaining fishing-industry standards is an issue still to be addressed.

Regulating fishing in Australia: from mullet size limits to international hot pursuits

Warwick Gullett — Tue, 08 Nov 2011 15:01:33 PST

Fisheries laws simply regulate human interactions with fish. Yet it is an enormous challenge to get them right. The central problem with which fishing laws need to deal is that technological advancements continually enable people (especially commercial fishers) to increase their ability to catch fish. This may be coupled with an increasing number of people fishing, or perhaps a relatively stable number of people fishing but changing their practice such as intensively fishing in one location. Human activities affecting fish are ever changing and, as a result, so too are fisheries laws. Past fishery collapses (such as cod stocks off the east coast of Canada in the early 1990s and orange roughy off the south-east coast of Australia in the mid-1980s) stand as a warning for what can happen if fishing is not properly regulated.

Policy choice for sustainability: marketization, law and institutions

Stephen Dovers — Tue, 08 Nov 2011 15:01:28 PST

The precautionary principle in Australia: policy, law and potential precautionary EIAs

Warwick Gullett — Tue, 08 Nov 2011 15:01:24 PST

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.

Environmental impact assessment and the precautionary principle: legislating caution in environmental protection

Warwick Gullett — Tue, 08 Nov 2011 15:01:17 PST

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.

Environmental protection and the precautionary principle: a response to scientific uncertainty in environmental management

Warwick Gullett — Tue, 08 Nov 2011 15:01:11 PST

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.

Environmental decision-making in a transboundary context: principles and challenges for the Denmark-Sweden Øresund fixed link

Warwick Gullett — Tue, 08 Nov 2011 15:01:04 PST

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.

Ustyurt Plateau

Warwick Gullett — Tue, 08 Nov 2011 15:00:58 PST

Transportation system - China

Warwick Gullett — Tue, 08 Nov 2011 15:00:53 PST

Balancing short term impacts and long term interests in fisheries management decisions

K Crosthwaite — Tue, 08 Nov 2011 15:00:46 PST

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.

In defence of the precautionary principle

Warwick Gullett — Tue, 08 Nov 2011 15:00:42 PST