Law Commons^™

Law And Identity In Spatial Contests, Richard Mohr

Faculty of Law - Papers (Archive)

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 …

(Review) Critical Legal Positivism By Kaarlo Tuori, Richard Mohr

Faculty of Law - Papers (Archive)

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 …

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

Faculty of Law - Papers (Archive)

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 …

Legal Framework And Enforcement Experience Of Marine Protected Areas In Tasmania, New South Wales And Commonwealth Waters, Warwick Gullett

Faculty of Law - Papers (Archive)

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 …

Enforcing Bycatch Reduction In Trawl Fisheries: Legislating For The Use Of Turtle Exclusion Devices, Warwick Gullett

Faculty of Law - Papers (Archive)

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 …

Hydrographic Surveys And Marine Scientific Research: Differences, Overlaps And Implications, Sam Bateman

Faculty of Law - Papers (Archive)

International law is clear on most issues associated with the conduct of marine scientific research (MSR) and hydrographic surveying but what is not clear is whether or not another State might conduct hydrographic surveys in an exclusive economic zone (EEZ) without the prior authorization of the coastal State. This paper reviews what is involved with MSR, hydrographic surveys and military surveys before reaching the conclusion that trends in recent decades with technology, the utility of hydrographic data and State practice require that hydrographic surveys in the EEZ should be under the jurisdiction of the coastal State. Paradoxically the arguments for …

U.S And Russia's Naval Policy After 9.11, Sam Bateman

Faculty of Law - Papers (Archive)

TIns paper was required to address the following questions:

• In what ways do maritime interests and strategies of the U. S. and Russia contribute to the general security outlook towards the Asia-Pacific region after 9.11 ?

• To what extent do the maritime strategies of these two countries take a cooperative approach toward the nations of the region?

• Is the present level of bilateral or multilateral cooperation adequate and sufficient to meet these challenges to maintain regional security?

These questions require a focus on the maritime interests and strategies of twn countries. The first is the sole remaining …

Individualism And Collectivism In Agreement-Making Under Australian Labour Law, Andrew D. Frazer

Faculty of Law - Papers (Archive)

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 …

Out Damned Weeds! Weed Management In Australia – Keeping Them At Bay, E. Arcioni

Faculty of Law - Papers (Archive)

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 …

Defining Native Title - Indigenous Cultural Knowledge And The Native Title Act, E. Arcioni

Faculty of Law - Papers (Archive)

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 …

Before The High Court: Politics, Police And Proportionality - An Opportunity To Explore The Large Test: Coleman V Power, E. Arcioni

Faculty of Law - Papers (Archive)

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 …

Report On Pacific Islands Judges Symposium On Sustainable Development, G. L. Rose

Faculty of Law - Papers (Archive)

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), …

International Law Of Sustainable Agriculture In The 21st Century, G. L. Rose

Faculty of Law - Papers (Archive)

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 …

Globalisation, Federalism And Legal Pluralism: The Challenges Of Diverse Legal Cultures In Federal Systems, J. M. Marychurch

Faculty of Law - Papers (Archive)

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 …

Regional Planning For Sustainability, David Farrier

Faculty of Law - Papers (Archive)

The concept of ecologically sustainable development has been incorporated into a number of pieces of legislation (Stein, 2000) and environmental planning instruments in New South Wales. There is a significant question, however, as to whether its incorporation is anything more than pure symbolism. This paper begins by exploring the limited role played by ESD principles in decision-making processes under existing legislation, as a prelude to a more detailed analysis of what commitment to ESD principles should mean for such processes. It focuses in particular on the implications of such a commitment at the holistic level of environmental and natural resources …

Maritime Conflict Prevention System: Some Ideas For An Action Plan, Sam Bateman

Faculty of Law - Papers (Archive)

This paper outlines some basic proposals for developing good order at sea. It suggests that the key to promoting cooperation and establishing an effective maritime conflict prevention system lies in developing wider maritime awareness in the region, including a greater appreciation of the complexities and problems of marine environmental management. In effect, this is similar to the need perceived in the U.S. for maritime domain awareness as an essential element of Homeland Security. It recognizes that comprehensive knowledge of what is happening at sea is an essential element of maritime security although at a regional level, this knowledge and understanding …

Maritime Security: A New Environment Following September 11, Sam Bateman

Faculty of Law - Papers (Archive)

The Asia-Pacific region is distinctly maritime in character. When we centre a globe on the Pacific Ocean, the blue of the ocean almost obscures the littoral landmasses but spin the globe until it is centred on the mid-Atlantic and landmasses then dominate the oceans. Not surprisingly, Atlantic nations tend towards a continental view of security while Asia-Pacific nations have a maritime view. The importance of maritime security to many Asia-Pacific countries is reflected in the size of their merchant shipping fleets, a dependence on seaborne trade, expanding naval forces, and strongly promoted claims to offshore sovereignty and marine resources. Maritime …