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Articles 1 - 28 of 28
Full-Text Articles in Law
Developments In Australian Fisheries Law: Setting The Law Of The Sea Convention Adrift?, Warwick Gullett
Developments In Australian Fisheries Law: Setting The Law Of The Sea Convention Adrift?, Warwick Gullett
Warwick Gullett
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 …
Environmental Protection And The Precautionary Principle: A Response To Scientific Uncertainty In Environmental Management, Warwick Gullett
Environmental Protection And The Precautionary Principle: A Response To Scientific Uncertainty In Environmental Management, Warwick Gullett
Warwick Gullett
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 …
Enforcing Bycatch Reduction In Trawl Fisheries: Legislating For The Use Of Turtle Exclusion Devices, Warwick Gullett
Enforcing Bycatch Reduction In Trawl Fisheries: Legislating For The Use Of Turtle Exclusion Devices, Warwick Gullett
Warwick Gullett
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 …
Environmental Impact Assessment And The Precautionary Principle: Legislating Caution In Environmental Protection, Warwick Gullett
Environmental Impact Assessment And The Precautionary Principle: Legislating Caution In Environmental Protection, Warwick Gullett
Warwick Gullett
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. …
Ustyurt Plateau, Warwick Gullett, D Oakman
Book Review. The Precautionary Principle In Practice, Warwick Gullett
Book Review. The Precautionary Principle In Practice, Warwick Gullett
Warwick Gullett
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.
Marine Resources Management, Warwick Gullett, Clive Schofield, Joanna Vince
Marine Resources Management, Warwick Gullett, Clive Schofield, Joanna Vince
Warwick Gullett
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 …
Transportation Systems, Warwick Gullett
Transportation Systems, Warwick Gullett
Warwick Gullett
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.
Relying On Fishy Advice: The Ostrowski Decision, Warwick Gullett
Relying On Fishy Advice: The Ostrowski Decision, Warwick Gullett
Warwick Gullett
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, …
Advancing Maritime Australia, Warwick Gullett, Clive Schofield, Joanna Vince
Advancing Maritime Australia, Warwick Gullett, Clive Schofield, Joanna Vince
Warwick Gullett
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 …
Up The Creek And Out At Sea: The Resurfacing Of The Public Right To Fish, Warwick Gullett
Up The Creek And Out At Sea: The Resurfacing Of The Public Right To Fish, Warwick Gullett
Warwick Gullett
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 …
Cancellation Provisions In Australia's Commonwealth-Managed Fisheries, Richard Mason, Warwick Gullett
Cancellation Provisions In Australia's Commonwealth-Managed Fisheries, Richard Mason, Warwick Gullett
Warwick Gullett
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 …
Transportation System - China, Warwick Gullett
Balancing Short Term Impacts And Long Term Interests In Fisheries Management Decisions, K Crosthwaite, Warwick Gullett
Balancing Short Term Impacts And Long Term Interests In Fisheries Management Decisions, K Crosthwaite, Warwick Gullett
Warwick Gullett
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 …
Australia's Marine Jurisdictions Under International And Domestic Law, Warwick Gullett, G. Rose
Australia's Marine Jurisdictions Under International And Domestic Law, Warwick Gullett, G. Rose
Warwick Gullett
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 …
Legal Framework And Enforcement Experience Of Marine Protected Areas In Tasmania, New South Wales And Commonwealth Waters, Warwick Gullett
Legal Framework And Enforcement Experience Of Marine Protected Areas In Tasmania, New South Wales And Commonwealth Waters, Warwick Gullett
Warwick Gullett
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 …
Regulating Fishing In Australia: From Mullet Size Limits To International Hot Pursuits, Warwick Gullett
Regulating Fishing In Australia: From Mullet Size Limits To International Hot Pursuits, Warwick Gullett
Warwick Gullett
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 …
Substantive Precautionary Decision-Making: The Australian Fisheries Management Authority's 'Lawful Pursuit' Of The Precautionary Principle, Warwick Gullett, Christopher Paterson, Elizabeth Fisher
Substantive Precautionary Decision-Making: The Australian Fisheries Management Authority's 'Lawful Pursuit' Of The Precautionary Principle, Warwick Gullett, Christopher Paterson, Elizabeth Fisher
Warwick Gullett
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 …
Environmental Decision-Making In A Transboundary Context: Principles And Challenges For The Denmark-Sweden Øresund Fixed Link, Warwick Gullett
Environmental Decision-Making In A Transboundary Context: Principles And Challenges For The Denmark-Sweden Øresund Fixed Link, Warwick Gullett
Warwick Gullett
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 …
Taiwan's Engagement In The Developing International Legal Regime For Fishing Implications For Taiwanese Officials And Fishers, Warwick Gullett
Taiwan's Engagement In The Developing International Legal Regime For Fishing Implications For Taiwanese Officials And Fishers, Warwick Gullett
Warwick Gullett
No abstract provided.
Fisheries, Warwick Gullett
Smooth Sailing For Australia's Automatic Forfeiture Of Foreign Fishing Vessels, Warwick Gullett
Smooth Sailing For Australia's Automatic Forfeiture Of Foreign Fishing Vessels, Warwick Gullett
Warwick Gullett
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 …
The Precautionary Principle In Australia: Policy, Law And Potential Precautionary Eias, Warwick Gullett
The Precautionary Principle In Australia: Policy, Law And Potential Precautionary Eias, Warwick Gullett
Warwick Gullett
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 …
Fishing Industry - Taiwan, Warwick Gullett
Fishing Industry - Taiwan, Warwick Gullett
Warwick Gullett
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.
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), Warwick Gullett
Warwick Gullett
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 …
Contesting The Merits Of Aquaculture Development: Port Stephens Pearls Pty Ltd V Minister For Infrastructure And Planning [2005] Nswlec 426, Warwick Gullett
Contesting The Merits Of Aquaculture Development: Port Stephens Pearls Pty Ltd V Minister For Infrastructure And Planning [2005] Nswlec 426, Warwick Gullett
Warwick Gullett
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 …
In Defence Of The Precautionary Principle, Warwick Gullett, P Mcshane
In Defence Of The Precautionary Principle, Warwick Gullett, P Mcshane
Warwick Gullett
No abstract provided.
Policy Choice For Sustainability: Marketization, Law And Institutions, Stephen Dovers, Warwick Gullett
Policy Choice For Sustainability: Marketization, Law And Institutions, Stephen Dovers, Warwick Gullett
Warwick Gullett
No abstract provided.