The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 1) contains the following material:

Articles

Jurisprudence on ecologically sustainable development: Paul Stein’s contribution – Hon Justice Brian J Preston

The Hon Justice Paul Stein AM served as a Judge of the District Court, Land and Environment Court, and Court of Appeal of New South Wales. Amongst the many contributions he has made to the law in his distinguished judicial career, one of the most significant is development of the jurisprudence on ecologically sustainable development. Through his judicial decisions and extra-judicial writings, the Hon Justice Paul Stein has articulated and implemented the principles of ecologically sustainable development. This article assays this important contribution to environmental law.

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Law is order, and good law is good order: The role of governance in the regulation of invasive alien species – Sophie Riley

In Australia, invasive alien species (IAS) are the second largest threat to biodiversity after loss of habitat. International obligations provide that Australia should prevent the introduction of, or control or eradicate those alien species that threaten ecosystems, habitats or species. Yet, designing and implementing effective IAS regimes remains elusive. It is a multidimensional exercise that engages a variety of actors across all levels of government. The purpose of this article is to examine complications stemming from governance of IAS regimes in federal systems where law-making power is shared. It is argued that Australia has created a governance system for IAS largely based on political compromises, and yet the federal government still has the opportunity of providing a national framework for regulation of IAS. However, the federal government has only partially grasped this opportunity, leaving the regime peppered with gaps and inconsistencies that fall short of its potential.

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Just another fish in the sea? The WTO Panel decision in US – Tuna III – Christopher Tran

Dolphin safe tuna fishing has often been the battleground for and catalyst of tensions between international trade and environmental interests. In the most recent contribution to this history, a World Trade Organization Panel decided that the United States dolphin safe labelling regime contravened the Agreement on Technical Barriers to Trade. This article examines the Panel’s reasoning and its broader implications. The Panel’s decision comes almost exactly 20 years after the first US – Tuna case, which was largely responsible for crystallising within the public mind the tensions between the international trade regime and the environment. Accordingly, the latest US – Tuna case merits close attention because it presents a convenient opportunity to reflect upon the World Trade Organization’s progress in accommodating environmental concerns.

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Planning for climate change and sea level rise – Queensland’s new Coastal Plan – Justine Bell

Climate change is projected to cause sea level rise, and an increase in the frequency and severity of extreme weather events. As most of Queensland’s population is settled in coastal areas, these events pose a major threat to development. The Queensland government has recognised this threat, and recently released a new Coastal Plan and associated legislative amendments. This plan seeks to minimise new development along the coast, and increase the resilience of existing development. This article will analyse the new regime for coastal management in Queensland, and conclude that it represents a positive step forward in safeguarding against the predicted impacts of climate change.

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Sinking islands, shrinking maritime entitlements: Is a new rule of international law needed to protect and promote offshore minerals exploration and mining? – Emily Follett

Under current rules, rising sea levels could result in significant cuts to maritime zone entitlements, particularly those of island states. Jurisdictional uncertainty poses risks to offshore mineral exploration and exploitation activities, thereby depleting the income and other benefits generated by such activities to host states. Developing small island states, which are among the most vulnerable to sea-level rise and the least responsible for climate change (a key cause of sea-level rise) – and for who appropriate exploitation of natural resources provides an opportunity for development – have the most to lose in this scenario. This article examines a number of options to address this issue, both within current international rules and proposals for new rules of international law. The deficiencies of existing proposals, which have paid little attention to the implications of sea-level rise for offshore resource exploration and exploitation, are identified. Ultimately, this article demonstrates that a new rule of international law that “fixes” continental shelf entitlements would be the most efficient and equitable way to resolve this issue, thereby assisting small island developing states to preserve the benefits of offshore mineral resources to their peoples.

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For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 1 Contents.

The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 2) contains the following material:

Articles

Coal seam gas in the context of global energy and climate change scenarios – Rosemary Lyster

Coal seam gas (CSG) and other unconventional gases, such as shale gas, have been touted as delivering substantially fewer greenhouse gas emissions than coal. Further, the International Energy Agency has suggested that we may be entering “a golden age of gas” in which global use of gas rises by more than 50% from 2010 levels and accounts for more than a quarter of global energy demand by 2035. The assumption is then that CSG development is desirable from the perspective of global climate change as well as energy security. This may well prove to be the case but it is nevertheless important to reflect on some of the serious concerns that have arisen both domestically and in the United States with regard to unconventional gases. Consequently, various levels of government and agencies both in Australia and the United States are currently finding ways of responding to, and dealing with, some of the impacts of these gases.

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Coal seam gas production – friend or foe of Queensland’s water resources? – Laura Letts

The emerging coal seam gas (CSG) industry in Australia is promoted as providing unparalleled opportunities for Australia’s economic and regional development, as well as delivering numerous employment opportunities. However, the CSG industry is also strongly opposed by some people, who cite possible risks to the environment and water resources and health impacts as grounds for prohibiting CSG extraction. This article considers whether, in the context of CSG production in Queensland, the 2010 amendments to the Water Act 2000 (Qld) are sufficient to ensure water resources are used and regulated in such a way that protects both the short and long-term quality and availability of Queensland’s water resources. The Queensland regulatory regime is considered against the National Water Commission’s 2010 position statement on CSG.

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Strategic Regional Land Use Plans: Presenting the future for coal seam gas projects in New South Wales? – Katherine Owens

In New South Wales, as elsewhere in Australia, there has been little attempt to plan for the spatial distribution of coal seam gas (CSG) projects at a strategic level, and regulatory frameworks are not considered to be sufficiently robust to manage the cumulative environmental effects of CSG activities on aquifer integrity. The New South Wales State government has pledged to resolve some of the problems associated with CSG mining through its Strategic Regional Land Use Policy, in which Strategic Regional Land Use Plans are to play a key coordinating role. However, a “spatial fix” of this nature is likely to constitute a dangerous shortcut in planning regulation in the particular context of CSG development, which may do very little to resolve the concerns expressed by environmental, farming and community groups, or the concerns of the CSG industry itself in resolving the emerging land-use conflicts. It is argued here that strategic planning can only provide an enduring solution to the land-use conflicts at play if the New South Wales government and stakeholders commit to a more integrated and reflexive process, which involves an explicit acknowledgement of, and provision for, doubt.

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Coal seam gas exploration and production in New South Wales: The case for better strategic planning and more stringent regulation – Tim Poisel

In May 2011, the NSW government implemented a 60 day moratorium on new CSG exploration licences, designed to address concerns about land-use conflicts between mining and other uses. However, at the end of this period, these concerns remained unresolved and yet, CSG activities went back to business as usual. Given the potential long-term devastating impacts of CSG operations on water, soil and air, it is the author’s view that the precautionary approach requires a further moratorium on CSG operations be imposed until such time as the findings and recommendations of the inquiries being undertaken by the Federal and NSW State Governments are known and implemented.

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Coal seam gas – Toward a risk management framework for a novel intervention – Alan Randall

CSG extraction is a recent development in Australia and is projected to make a substantial contribution to the nation’s domestic and export energy supplies for the next several decades. CSG is a spatially dispersed industry with a much greater footprint on land and environment than the more modest surface area devoted to well-heads would suggest. Its potential impacts – massive demands for water, contaminated waste water, disruption of aquifers, disturbance/contamination of geosystems, atmospheric pollution, degradation of landscape aesthetics, and stress on infrastructure and sense of community – raise important issues of human and ecosystem health. Regulation and management of these impacts is a major concern, and raises explicit issues of risk management. For novel interventions, risk management should balance the benefits of innovation and the need for protection from serious threats of harm. I introduce an integrated risk management framework for proposed innovations that includes a structured program of screening, pre-release testing and post-release surveillance. Application to CSG is more problematic, because there is less scope for secure testing at pilot scale – much that is novel and risky about CSG relates to the cumulative impacts of rapid expansion. Integrated risk management starts with a comprehensive assessment of the cumulative impacts and risks of planned CSG development to guide go/no-go decisions and design of an adequate regulatory structure; but it should also be attentive to the costs of impeding beneficial innovation.

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Regulating coal seam gas in Queensland: Lessons in an adaptive environmental management approach? – Dr Nicola Swayne

The current regulatory approach to CSG projects in Queensland is based on the philosophy of adaptive environmental management. This method of “learning by doing” is implemented in Queensland primarily through the imposition of layered monitoring and reporting duties on the CSG operator alongside obligations to compensate and “make good” harm caused. The purpose of this article is to provide a critical review of the Queensland regulatory approach to the approval and minimisation of adverse impacts from CSG activities. Following an overview of the hallmarks of an effective adaptive management approach, this article begins by addressing the mosaic of approval processes and impact assessment regimes that may apply to CSG projects, including recent Strategic Cropping Land reforms. It then considers the preconditions for land access in Queensland and the emerging issues for landholders relating to the negotiation of access and compensation agreements; and undertakes a critical review of the environmental duties imposed on CSG operators relating to hydraulic fracturing, well head leaks, groundwater management and the disposal and beneficial use of produced water. Conclusions are drawn regarding the overall effectiveness of the Queensland framework and the lessons that may be drawn from Queensland’s adaptive environmental management approach.

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For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 2 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 3) contains the following material:

Articles

Legal liability for carbon capture and storage in Australia: Where should the losses fall? – Dr Nicola Swayne and Angela Phillips

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

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Aboriginal objections to development and mining activities on the grounds of adverse impacts to sites of spiritual significance: Australian judicial and quasi-judicial responses – Dr Andrew Sneddon

This article considers the ways in which Australia’s courts and tribunals have responded to Aboriginal objections to proposed mining and development activities on the grounds of potential adverse impacts to “sacred sites”. Over the last 15 years of the mining and housing booms, Australia’s courts and tribunals have expanded the grounds on which Aboriginal objections to such activities will be successful, with significant ramifications for the mining and development industries, legal practitioners, urban planners and heritage professionals. This expansion of the grounds for objection reflects an increased awareness on the part of the judiciary and quasi-judiciary of Aboriginal world views and of the forms that the spiritual values of a site can take, augmented by a more flexible application of general urban planning principles. Importantly, the decisions of Australia’s courts and tribunals have provided legal counsel that act for traditional owners, developers and mining concerns with clear guidance in regards to mounting a case for a successful objection or a defence to such objections.

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Reefs, recreation and regulation: Addressing tourism pressures at the Ningaloo Coast World Heritage site – Andrea Bassett

World Heritage listing is of critical interest to states seeking to draw global attention to their cultural and natural heritage. This attention provides a significant opportunity for tourism development, but can create conflict if economic drivers override best practice heritage management. The World Heritage Convention seeks to balance these tensions by imposing on parties the duty to both protect and present their listed sites. This article explores the inherent conflict of openly presenting sites to the public while also fully protecting their World Heritage values, in the context of ecotourism regulation in the recently listed Ningaloo Coast, Western Australia. Federal and State legislation are analysed, and it is found that regulation of human-wildlife interactions and tour operator licensing in Ningaloo are crucial for balancing these conflicting duties. Recommendations are made to ensure Australia meets its World Heritage obligations of this unique and pristine site for future generations to enjoy.

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BOOK REVIEW

• The New Environmental Governance by Holley C, Gunningham N and Shearing C

For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 3 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 4) contains the following material:

EDITORIAL

• An overview of the historical legal background to the “Proposed Basin Plan”

Articles

International law and the Murray-Darling Basin Plan – Professor Donald R Rothwell

Both the Water Act 2007 (Cth) and the Murray-Darling Basin Plan rely to a significant extent upon Australia’s international legal obligations under “relevant international agreements” to provide not only a constitutional basis for the legislative schema but also a foundation for how the Commonwealth has sought to develop the Plan. This raises issues regarding the extent of the international legal obligations in those agreements, the relevance of each agreement, and whether – consistent with High Court jurisprudence – the Act and Plan are consistent with aspects of the Commonwealth’s s 51(xxix) power with respect to “external affairs”. This article reviews these issues and comments on the relationship between international law and the Act and the Plan.

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Can the High Court save the Murray River? – Adam Webster and John M Williams

Since before Federation, South Australian politicians have claimed that their colony (and later State) has a legal right to a share of the water from the Murray River. Recently, South Australian Premiers have said that, should current negotiations fail to produce a satisfactory outcome for the State, they may challenge the Basin Plan in the High Court to assert South Australia’s legal claim to a share of the waters of the Murray. This article explores the role that the High Court has played in resolving disputes in times of crisis, and examines whether the High Court of Australia would have jurisdiction over an interstate water dispute. Finally, the article considers the legal basis for South Australia’s claim to a “fair share” of the waters of the Murray River.

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The significance of ICM in the evolution of s 51(xxxi) – Andrew Macintosh and Jancis Cunliffe

Over the past 30 years, increasing environmental and natural resource regulation has sparked debate about the protection of private property interests and provision of compensation to those affected by regulatory measures. Where these disputes involve the Commonwealth, it is not uncommon for property owners to reach for s 51(xxxi) of the Australian Constitution to bolster their claims for assistance. In the 2009 decision of ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 170 LGERA 373, the High Court took an important step in clarifying the scope of s 51(xxxi). The decision provides a strong precedent in support of the notion that, for a law to give rise to an acquisition, it must either result in the Commonwealth (or a third party) obtaining an entitlement to possession and control of the plaintiff’s property, or effectively sterilise the plaintiff’s interest while providing a correlative proprietary benefit to another party. This article reviews the evolution of the High Court’s approach to the “constitutional guarantee” and analyses ICM’s place in s 51(xxxi) jurisprudence.

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Putting the environment first? – Tim Bonyhady

The Water Act 2007 (Cth) is one of several pieces of Australian legislation intended to prioritise the environment. The implementation of such legislation has often fallen short of this goal. Recent events suggest that the Water Act may be the same, raising serious questions about the efficacy of such legislation.

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The legal framework for water trading in the Murray-Darling Basin: An overwhelming success? – Janice Gray

Water trading has become a key mechanism of water management in Australia and is commonly regarded as a great success. This article explores whether the legal framework supporting trading in the Murray-Darling Basin is deserving of its very positive reputation. It begins by mapping out the framework and revealing a complex web of multijurisdictional and multilayered governance. It then evaluates the effectiveness of that framework by reference to: the number and volume of trades; the clarity with which the subject of trade is defined (is it property or not?); the stated objects of trading and the outcomes produced; and Earth Jurisprudence, as a benchmark. In conclusion, it finds that despite some positive aspects there are enough negative aspects of the legal framework to preclude its characterisation as an “overwhelming success”.

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For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 4 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 5) contains the following material:

CASE NOTE

• The precautionary principle with reference to MyEnvironment Inc v Vicforests [2012] VSC 91 – Peter George and Anna Martin

Articles

The potential and reality of the environment protection licensing system in New South Wales: The case of water pollution – Kristy Graham and Ian A Wright

The legislative basis and intent for pollution licensing in New South Wales is comprehensive and provides the Environment Protection Authority (EPA), as the regulatory authority for most pollution, with the ability to consider and protect a range of environmental values through the environment protection licensing system. Despite this ability, this is not occurring in New South Wales. The current regulation of pollution is far from achieving its aims to protect and enhance the quality of the environment, to maintain ecologically sustainable development and to prevent degradation of the environment. These aims are enshrined in the objects of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and were widely proclaimed with the introduction of the Protection of the Environment Operations Bill in 1997. This article focuses on the current failures in the implementation of the pollution regulation framework, which have resulted in the degradation of many waterways as a direct result of industrial waste discharges, licensed under the POEO Act. It makes a number of key recommendations for reform of the pollution licensing system, including greater consideration of cumulative impacts of key pollutants, broader coverage of licences, expanded use of market-based approaches, independent monitoring and enforcement, continuous improvement and enhanced public participation. Although this article focuses on case studies involving water pollution, many points are applicable to the licensing and regulation of other types of pollution.

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Navigating muddy waters: Does the High Court have a role in adjudicating interstate river disputes? – Amy Preston-Samson

The operation of s 100 of the Constitution, both as a justiciable limit on Commonwealth legislative power and more broadly, remains largely unexplored. This article examines the drafting history of s 100 to uncover the High Court’s anticipated role in relation to State/Commonwealth and State/State disputes generally, and concerning the use of interstate river water. Further, this article looks abroad to the experience of other constitutional federations (namely, the United States, Canada and Switzerland) in managing interstate rivers to better understand the role that notions of non-justiciability and judicial deference may have in limiting the role of the High Court. Finally, in light of this comparative study, this article evaluates the limits of the future judicial review and interstate dispute resolution roles of the High Court in relation to interstate river waters.

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Energy security, oil and the transport sector – is Australia’s policy adequate, reliable and affordable? – Megan Vine

For many countries around the world, including Australia, ensuring energy security is a recognised priority. In particular, security of oil is at the forefront of energy security policies due to its use in the transport sector. Many strategies are now being implemented to decrease reliance on oil from development of alternative fuels to use of electric vehicles. This article assesses the adequacy of Australia’s energy security policy in the road transport sector and comments on what lessons, if any, can be learnt from the United States and China. It concludes that a solution to this issue will not be one dimensional and will require the consideration of a number of differing perspectives.

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 “Planning away” Victoria’s renewable energy future? Resolving the tension between the local and global in windfarm developments – Lisa Caripis and Anne Kallies

Recent changes in 2011 to the Victorian planning framework for windfarm developments raise significant questions about the capacity of planning law to balance local concerns regarding development impacts with the need to facilitate the uptake of wind energy to meet Australia’s Renewable Energy Target and to contribute to its climate mitigation effort. The pre-amendment planning law framework, despite being strategically geared toward promoting renewable energy at the policy level, had a number of shortcomings. The 2011 amendments fundamentally changed the nature of planning decisions around windfarm developments by greatly extending spatial development controls via windfarm “no go zones” and by shifting the focus of assessment to local impacts. In light of this reorientation in Victorian planning law, this article considers the features of an effective windfarm planning framework that can effectively balance local and global interests. It draws in part on a comparative case study of German planning law, which has enabled Germany to successfully increase the proportion of wind energy in its energy profile.

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For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 5 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 29 Part 6) contains the following material:

Articles

An introduction to the Carbon Farming Initiative: Key principles and concepts – Andrew Macintosh and Lauren Waugh

In December 2011, the Australian government introduced a project-based, baseline-and- credit carbon offset certification scheme called the Carbon Farming Initiative (CFI). Its formal objectives are to assist in the achievement of Australia’s greenhouse gas mitigation obligations and promote abatement in a manner that will protect the environment and improve resilience to the effects of climate change. Most significantly, the CFI will provide the basis for the generation of certified offsets for use in the Australian carbon pricing scheme (CPS) under the Clean Energy Act 2011 (Cth) (CE Act) and for sale to overseas buyers. It will also certify domestic offsets for use in voluntary markets. This article describes and analyses key aspects of the CFI and sheds light on its relationship with the international greenhouse accounting rules and the CE Act’s CPS. It evaluates the effectiveness of the mechanisms that have been put in place to deal with integrity risks and secondary impacts associated with the scheme. It is concluded that the CFI has the capacity to significantly reduce the cost of meeting Australia’s mitigation targets and promote more sustainable land-management practices.

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Out of crooked timber: The consistency of Australia’s Illegal Logging Prohibition Bill with the WTO Agreement – Andrew D Mitchell and Glyn Ayres

This article examines whether a proposed measure that would prohibit the importation into Australia of illegally logged timber would be consistent with the WTO Agreement if passed by the Australian Parliament in its current form. The Illegal Logging Prohibition Bill 2011 (Cth) would prohibit the importation of timber harvested in contravention of the laws of its country of origin, including timber in manufactured products such as furniture. Importers would also be required to comply with certain due diligence requirements, such as assessing the risk that their imports contained illegally logged timber. However, by conditioning entry into the Australian market solely on whether timber was harvested legally, the Bill raises clear issues under the WTO Agreement. In particular, the Bill is likely to lead to differential treatment of like products from different countries, contrary to the most-favoured-nation obligations in Art I of the GATT 1994. Moreover, it would contravene Art XI of the GATT 1994 as a restriction on imports could not be justified under any relevant exception. Australia may wish to consider reformulating the Bill to more accurately and effectively target environmentally destructive logging practices and unfair competition.

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Raising the boardroom temperature? Climate change and shareholder activism in Australia – Susan Shearing

This article considers the extent to which statutory shareholder mechanisms under Australian corporate law can be invoked to promote climate change initiatives by public companies. It provides an overview of the corporate and environmental regulatory and policy framework within which climate shareholder activism emerged in Australia in 2010/2011, and assesses the effectiveness of this approach by reference to four case studies of companies listed on the S&P/ASX200 index. Reference is made to the American experience of climate change shareholder activism. The article considers whether shareholder activism can be a catalyst for driving action on climate change reform within the Australian corporate sector.

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Creating the power for renewal: Evaluation of New South Wales’ renewable energy planning law changes and suggestions for further reform – Andrew Newman

The risk of climate change has created a pressing need for governments to inject large quantities of renewable energy into their energy supply mix. The recently elected New South Wales Liberal-National government has proposed specific renewable energy planning rules as part of a broader reform of planning policy. These reforms stress the importance of public participation in the planning process. This article considers the experience of other jurisdictions and evaluates the proposed reforms in New South Wales on public participation, consideration of strategic issues such as land-use policy, and technical and siting standards for equipment. It then proposes further reform options geared towards improving the prospects for renewable energy development in the State and contribute towards the Commonwealth’s 20% Renewable Energy Target by 2020.

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Towards standalone Aboriginal heritage legislation in New South Wales: A critical analysis and proposals for an alternative plan – Brett Hayward

The New South Wales government’s review of Aboriginal heritage legislation provides a timely opportunity to review existing legislative frameworks for the protection of Aboriginal heritage. Ultimately, this review will recommend a model for standalone Aboriginal heritage legislation in New South Wales. The article gives an overview of the current process in New South Wales and Victoria and seeks to provide a critical analysis of each State’s statutory framework. Recommendations are given for alternative heritage protection models that are focussed on Aboriginal self-determination with the addition of accountability and responsibility.

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For the pdf version of the table of contents, click here: EPLJ Vol 29 Pt 6 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 1) contains the following material:

Articles

Is the fox still guarding the henhouse? Mining and environmental protection in South Australia – Paul Leadbeter and Dr Alexandra Wawryk

This article explains the complexities, and provides a critical analysis, of South Australia’s environmental protection regime in relation to mining. In South Australia, the Mining Act 1971 (SA) and Mining Regulations 2011 (SA) together constitute the main statutory regime for protecting the environment from mining activities. While the creation of a separate set of environmental controls within the Mining Act means that a number of key environmental statutes do not generally apply to activities undertaken pursuant to licences or leases under the Mining Act, the legal position regarding environment protection is more complex than this statement suggests. This article’s critique of the regime focuses on issues of compliance and enforcement. First, assuming that a robust system of third party participation is fundamental to a truly rigorous compliance and enforcement regime, it critically assesses the adequacy of rights of third party public participation in the assessment, decision and review of mining proposals. Secondly, given that the State Minister for Mineral Resources and Energy has the responsibility not only for promoting mining but also regulating the technical aspects of mining and ensuring that mining does not have adverse environmental impacts, it is argued that his or her position is open to the possibility of regulatory capture.

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Deliberative participation, environmental law and collaborative governance: Insights from surface and groundwater studies – Cameron Holley and Darren Sinclair

Despite major reforms in water management, many water resources are still over-exploited and under threat. Hard questions are accordingly being asked as to whether present legal and governance tools are providing adequate answers to Australia’s pressing water problems. Of particular concern is the need to improve community engagement in water law and governance. Responding to these concerns, this article draws on 68 interviews and a survey of community and government stakeholders involved in three different collaborative decision-making processes designed to manage diffuse pollution of local streams, dry land salinity and nutrient/sediment runoff, and groundwater overuse. The article explores and critically examines the internal dynamics of the decision-making processes, and provides a range of insights for policy and theory for designing meaningful and effective collaborative decision-making in the practice of governing water resources. The article also considers the implications of these collaborative approaches for our understanding of the modern regulatory state.

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The silence of the plan: Will the Convention on Biological Diversity and the Ramsar Convention be implemented in the Murray-Darling Basin? – Emma Carmody

Over-extraction of water for consumptive use has left 20 out of 23 major river valleys in the Murray-Darling Basin in poor or very poor ecological condition. Coupled with climate change, which, as Young states, “represents a significant risk in the longer term” to ecosystem health across the Basin, the outlook for Australia’s largest river system is particularly grim. It was with this in mind that the Australian government resolved to oversee and direct State management of Basin water resources by enacting the Water Act 2007 (Cth). The Act’s objects include returning Basin water resources to environmentally sustainable levels of extraction, as well as protecting, restoring and providing for the ecological values and ecosystem services of the Murray-Darling Basin. They also include giving effect to several international environmental agreements, including the Convention on Biological Diversity and the Ramsar Convention, to the extent that they are relevant to the use and management of Basin water resources. This article examines the nature of the obligations contained in these two conventions, whether the Basin Plan is likely to implement them, and the legal consequences of failing to do so.

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Culpability versus liability: Is the polluter ultimately liable for cleaning up groundwater contamination in Victoria? – Mia Louise Livingstone

Groundwater contamination presents a significant problem in Australia as we redevelop to accommodate our growing housing needs. Unlike land contamination, groundwater contamination has the potential to migrate offsite, creating a “hidden” liability for owners and occupiers of sites as well as surrounding sites. Given that the obligation to clean up groundwater contamination is usually imposed on the owner or occupier of a site in Victoria, this article explores whether the often-extensive costs associated with a clean up and other resulting loss and damage can ultimately be recovered from the polluters themselves. This article reveals that the common law and statutory claims available are largely inadequate to effectively and efficiently provide compensation to owners and occupiers from polluters in Victoria. Owners and occupiers should therefore be aware of the key issues identified in this article before purchasing or leasing land or before pursuing action against a polluter for groundwater contamination.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 1 Contents or here: WAU – EPLJ Vol 30 Pt 1 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 2) contains the following material:

Articles

Public participation in planning: Lessons from the green bans – Amelia Thorpe

This article reflects on the extent to which the green bans have influenced the framework for public participation in planning in New South Wales. It critically examines claims that the Environmental Planning and Assessment Act 1979 (NSW) (EPAAct) was best practice at the time it was passed, thus challenging suggestions that current planning problems should be attributed to amendments made since its enactment. While the green bans were a catalyst for the introduction of the EPA Act, the relationship between the bans and the legislation is more complex than generally understood. This article argues that the EPA Act took very little from the green ban movement, and as a result embedded an adversarial approach to planning that remains at the heart of current problems in New South Wales.

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Site contamination requirements under the Environment Protection Act 1993 (SA) – an analysis of their nature and effect – Paul Leadbeter

In 2009, changes were made to the Environment Protection Act 1993 (SA) that inserted Pt 10A into the Act to address site contamination. Although site contamination had been recognised in South Australia as a problem since the early 1980s, it took almost 30 years to achieve a comprehensive set of legislative controls in that State. While a number of the new controls reflect similar provisions in existing legislation elsewhere, one unique aspect relates to the provisions that deal with responsibility for site contamination. The starting point is that the person who caused site contamination should be held responsible for addressing that contamination. However, under s 103E, a vendor or transferor of land may seek to transfer liability for site contamination subject to meeting certain requirements. This article looks at those requirements, noting the conflict that has arisen on how they should be interpreted. The article is critical of the failure to initiate complementary changes to the land-use planning legislation in South Australia, without which it will be difficult to achieve the full effect and benefits of the site contamination controls.

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A setback for river and riparian ecosystems: A response to the New South Wales Office of Water 2012 policy on riparian corridors – Christopher D Ives, Mark Patrick Taylor and Peter J Davies

The NSW Office of Water recently introduced reforms to its policy for controlled activities on waterfront land, for the purpose of liberating housing supply. Minimum riparian corridor widths will now be based on stream order as determined by the 60-year-old Strahler method, and offsetting will allow for the encroachment of works within a corridor. Such changes are not predicated on scientific evidence and will likely compromise the environmental health of rivers and riparian systems. First, using stream order to determine riparian setbacks is misaligned with catchment-specific environmental priorities and will not provide certainty for stakeholders due to difficulties in determining the presence of a bona fide river. Secondly, enabling offsetting of works elsewhere along a riparian corridor risks undermining the efficacy of a riparian corridor’s functionality. Finally, the lack of public consultation and prioritising immediate economic gain over long-term environmental protection is contrary to best practice environmental management.

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Impossible dreaming – does Australia’s water law and policy fulfil Indigenous aspirations? – Poh-Ling Tan and Sue Jackson

Despite provisions in the National Water Initiative (NWI) to the effect that Indigenous Australians should have greater participation in water planning, they are still excluded from participating in management involving water governance and economic develop- ment. This article examines the success or otherwise of State legislation and policy and of native title claims in the overall context of fulfilling the goals of the NWI. It argues that the implementation of the NWI gives a low priority to Indigenous needs in over-allocated catchments, that its goals are prejudiced by delay and difficulties in native title determinations, that consultations with Indigenous peoples are either lacking or outdated, and that outcomes generally preclude economic development. It is argued that the adoption of co-management models, especially in northern Australia, where the Indigenous land estate is substantial, may better satisfy the goals of the NWI.

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Effective environmental dispute resolution in Queensland: Commentary and critiques from the Planning and Environment Court – Matthew McDermott

The Planning and Environment Court of Queensland (PEC) has, since March 2007, provided an “inhouse” mediation service through the Alternative Dispute Resolution (ADR) Registrar. This article considers the views of the PEC’s participants in the mediation process in the PEC’s jurisdiction. In particular, it considers how the mediation process responds to theoretical and practical issues with mediation in planning and environment litigation. The analysis of these issues has been greatly assisted by the willingness of a judge of the PEC and the present and former ADR Registrars to be interviewed in relation to their experiences with mediation in the PEC.

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Kangaroos at a crossroads: Environmental law and the kangaroo industry – Keely Boom and Dror Ben-Ami

Australia’s kangaroo industry represents the largest commercial kill of land-based wildlife in the world. The environmental law and policy that governs the industry primarily seeks to facilitate the killing of kangaroos on the basis that they damage agriculture and provide a renewable natural resource. The need to conserve kangaroos acts as a limiting factor to temper the commercial interests of landholders and shooters. This article identifies a number of problems with the current regulatory framework, particularly the lack of adherence to the precautionary principle. It highlights key measures of reform that could be introduced to enhance the regulatory framework and conserve kangaroos, such as density trigger points. Finally, the article argues that, on the basis of current scientific knowledge and difficulties in adhering to the precautionary principle, there is a pressing need for Australian governments to reassess the reasons for and against management of kangaroo populations through commercial killing.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 2 Contents or here: WAU – EPLJ Vol 30 Pt 2 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 3) contains the following material:

Articles

Moving from consideration to application: The uptake of principles of ecologically sustainable development in environmental decision-making in New South Wales – Guy J Dwyer and Mark P Taylor

The achievement of ecologically sustainable development (ESD) is dependent upon appropriate action being taken at all scales of environmental governance to protect the environment. This article outlines a three-step process for achieving ESD at the project or activity scale in New South Wales. It considers the extent to which four environmental statutes in New South Wales adequately facilitate the application of ESD principles by decision-makers when they are deciding whether to approve a proposed project or activity (ie the first part of the three-step process). The article finds that two of the selected statutes do not adequately facilitate the first part of the three-step process because they vest a significant level of discretion in decision-makers with respect to determining if ESD principles are to be applied when making decisions about proposed projects or activities. Accordingly, it is argued that these statutes should be amended to provide for duties obliging decision-makers to apply ESD principles. It is also suggested that the discharge of these duties should be informed by non-binding policy guidelines for applying ESD principles in a given case.

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Getting the balance right: A renewed need for the public interest test in addressing coastal climate change and sea level rise – Tayanah O’Donnell and Louise Gates

The law with respect to coastal management in New South Wales, particularly those laws dealing with sea level rise, is a dynamic area that is, once again, currently under review. This article discusses Stage 1 of this reform and analyses it in the broader context of the “public interest” test. The importance of this test for decision-makers, especially those at the local government interface, is highlighted, with particular attention paid to both climate change impacts and recent, relevant judicial decisions. It further explores the tension between private property rights and the public interest test in the context of the coastline, and suggests that a balance may be found in applying innovative planning mechanisms such as rolling easements.

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Energy efficiency or energy wasted? The record of Australian and Swedish law to improve energy efficiency in the buildings sector – Joshua Prentice

Measures to improve energy efficiency have gained significant support in recent years as a cost-effective means to reduce greenhouse gas emissions. Emissions from buildings have risen significantly in recent years and, thus, represent a pivotal focus of regulatory measures to improve energy efficiency. The Building Energy Efficiency Disclosure Act 2010 (Cth) (BEEDA) entered into force on 1 July 2010 and implements mandatory disclosure requirements concerning the energy performance of commercial buildings. The mandatory disclosure regulatory model implemented under the BEEDA closely follows the regulatory approach that has formed the basis of Swedish energy efficiency law in the buildings sector since 2002. This article analyses the record of Swedish energy efficiency law in the buildings sector as a comparative case study into the likely outcomes and challenges the BEEDA may encounter in its implementation.

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Evaluating the effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): 2008-2012 – Susan Tridgell

The effectiveness of Australia’s national environmental legislation – the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – in protecting the environment through its environmental impact assessment regime has been a matter of ongoing debate. The administration of the Act has attracted considerable critique in terms of both its cost and its efficacy. This article revisits the debate, looking at the environmental outcomes of 50 referrals between 2008 and 2012. Some limited evidence for positive environmental outcomes is found, but in areas where there have been significant gains, new political proposals now risk eroding them. In addition, the paucity of evidence available illustrates another weakness in the Act’s administration: a lack of transparency and accountability.

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Wild law in Australia: Practice and possibilities – Claire Williams

Australian law currently treats the planet’s resources, natural environment and non-human animals as property that can be bought, sold and used by humans. There is now vast scientific knowledge as to how ecosystems operate and that the least sophisticated forms of life support the more complex forms. Yet, in practice, the law favours humans above all else. If human beings wish to survive and prosper in the long term, Earth’s dynamic systems and all other life must be protected. Legally recognising nature’s rights is a practical response to insight provided by Earth system science and ecology. This article examines why Australia should start to incorporate the principles of Wild Law and Earth Jurisprudence into its domestic legal system, and how this process might be achieved. Local examples are used as practical illustrations to show how different aspects of the environment could enjoy rights under a new system of law. The article also investigates whether there are some possibilities for the development of wild law and Earth Jurisprudence already present in Australian law.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 3 Contents or here: WAU – EPLJ Vol 30 Pt 3 Contents.

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Journal of Law and Medicine (JLM)

From whistle-blowing to immunisation, genetic testing and professional legal responsibility, Issue 1 of Volume 21 will cover a broad range of topics at the interface of law and medicine. Articles include:

• “Is whistle-blowing now mandatory? The impact of mandatory reporting laws on trust relationships in health care” by Jayne Hewitt
• “Jabs and barbs: Ways to address misleading vaccination and immunisation information using currently available strategies” by Jon Wardle, Cameron Stewart and Malcolm Parker
• “Determining the risk of recidivism in previously de-registered health practitioners” by Laurie Warfe
• “A curious exception: (No) legal remedies for negligent pre-birth genetic testing” by Thomas Cleary
• “Work-related musculoskeletal injury and suicide: Opportunities for intervention and therapeutic jurisprudence” by Marie-Claire Davis, Joseph Elias Ibrahim, David Ranson, Joan Ozanne-Smith and Virginia Routley
•  ”Children and refusal of medical treatment: In urgent need of reform ” by Nicholas Lennings
•  ”Rights and research: An examination of research under the Code” by Lydia Wadsworth
•  ”The international right to health: State obligations and private actors in the health care system” by Paula O’Brien
•  ”Australian reforms enabling disclosure of genetic information to genetic relatives by health practitioners working in the private sector ” by Margaret Otlowski
•  ”Scoping the ethics of dementia research within an Australian human research context ” by Leslie Dowson, Colleen Doyle and Victoria Rayner
•  ”Professional legal responsibility of the sports physician” by Andrea Verzeletti
•  ”A minority report: Homebirth in Australia before and after the 2009 Maternity Services Review” by Jindalae Kim Skerman

 Environmental and Planning Law Journal (EPLJ)

Issue 4 of Volume 30 is a special issue containing papers from the National Environmental Law Association’s 2013 National Conference – “Discovering a Low Carbon Future”. The articles to be included in this issue explore the conference’s theme in a variety of ways and focus on both Australian and international environmental law. A number of options are discussed for lowering global carbon emissions, such as emissions trading, a carbon tax, further regulation and even litigation. Articles include:

• “The role of litigation in multi-level climate change governance: Possibilities for a lower carbon future?” by Hari M Osofsky and Jacqueline Peel
• “Regulating for sustainable electricity market outcomes in Britain: Asking the law question” by Aileen McHarg
• “Environmental dispute resolution – lessons from the States” by Judge Michael Rackemann
• “Design elements of emissions trading regulation in China’s pilot programs: Regulatory challenges and prospects” by Hao Zhang
• “Trading carbon the kiwi way” by Karen Price and Jessie Duffin 

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 4) contains the following material:

EDITORIAL

Articles

Regulating for sustainable electricity market outcomes in Britain: Asking the law question – Aileen McHarg

Making the transition to sustainable electricity regulation poses formidable challenges, particularly in jurisdictions that have been strongly wedded to the market paradigm. In particular, overcoming the barriers to investment in sustainable technologies requires substantial regulatory commitment, but such commitment is difficult to secure. Using British electricity regulation as an example of a regime in transition, this article focuses on the meta-regulatory role of law in helping to reorient regulators towards sustainability objectives. It focuses on five techniques: institutional reform; statutory duties; legally- binding targets; statutory guidance; and legal protection against regulatory change. The article argues that the law performs important functions in terms of reinforcing and maintaining political commitment to sustainable electricity markets; coordinating dispersed regulatory capacities; and balancing competing requirements of regulatory certainty and flexibility. Moreover, the symbolic, institutional and procedural capacities of law are more important than judicial intervention in promoting regulatory change.

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The role of litigation in multilevel climate change governance: Possibilities for a lower carbon future? – Hari M Osofsky and Jacqueline Peel

As the international community continues to struggle to address the problem of climate change, an increasing number of lawsuits at international, national, and sub-national levels have explored mitigation and adaptation concerns. Drawing from the comparative experiences of the United States and Australia in responding to climate change, this article provides a novel model for understanding the direct and indirect regulatory pathways that litigation provides in common law jurisdictions. This model and its application help to illuminate the role of litigation in multilevel climate change governance.

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Environmental dispute resolution – lessons from the States – Judge Michael Rackemann

Providing effective access to justice is one of the key principles of the Rio Declaration. Reasonable access to properly constituted courts or tribunals with appropriate jurisdiction, expertise, procedures, accessibility (in both a legal standing and practical sense) and which provide effective remedies, is fundamental to achieving this goal. At a State level, Australia has some of the longest standing and most respected specialist environmental courts and tribunals (ECTs) in the world, but they arguably attract insufficient attention in national-level discussion. A comparative examination of environmental dispute resolution systems at Commonwealth and State levels, however, suggests that, if identifying “best practice” is to be the guiding light, a re-examination of what is being done by State-based ECTs will be more informative than what is being offered at the Commonwealth level.

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Design elements of emissions trading regulation in China’s pilot programs: Regulatory challenges and prospects – Hao Zhang

Emissions trading pilot programs in cities and provinces in China are playing an emerging role in what is a polycentric and fragmented set of measures proposed to reduce greenhouse gas emissions within the country. This article, by drawing together the scholarship on design elements of emissions trading programs and also the emissions trading regulations in the European Union and in Australia, examines the challenges associated with designing the regulatory elements in China’s emissions trading pilot programs. The findings of this article focus on the prospective roles of the Chinese central and local governments in designing and implementing an emissions trading pilot program at local levels.

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Trading carbon the kiwi way – Karen Price and Jessie Duffın

In December 2011, negotiations at the United Nations climate conference in Durban resulted in 195 countries pledging to develop a new international climate treaty by 2015. This agreement to reduce greenhouse gas emissions will apply to all parties to the United Nations Framework Convention on Climate Change, with binding effect. In December 2012, New Zealand chose not to sign up for the second commitment period of the Kyoto Protocol. This means New Zealand’s access to international carbon markets is uncertain beyond 2015. Against this international context, this article examines New Zealand’s emissions profile and its implications for the New Zealand Emissions Trading Scheme (NZ ETS). The article details the evolution of the New Zealand carbon market from a legal and policy perspective, with particular focus on the forestry sector. It highlights present trends in carbon trading in New Zealand, considers the development of a trans-Tasman market, and evaluates the effectiveness of the NZ ETS in achieving its objectives.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 4 Contents or here: WAU – EPLJ Vol 30 Pt 4 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 5) contains the following material:

CASE NOTE

• Conventionalising climate change by decree

Articles

Adapting to the impacts of climate change: The limits and opportunities of law in conserving biodiversity – Hon Justice Brian J Preston

Climate change is likely to exacerbate existing pressures on ecosystems, habitats and biodiversity, as well as give rise to new pressures. Current baseline pressures on natural environments, such as habitat and biodiversity loss, pollution, fire and the spread of weeds and introduced animal species, are likely to increase. New pressures could also arise in the future, ranging from direct pressures such as sea-level rise to indirect pressures on settlement patterns and economic activities. The implementation and effectiveness of strategies to enable biodiversity to adapt to climate change is dependent in part on the law. This article suggests that the existence of the current baseline pressures that ecosystems, habitats and species face is evidence that the existing laws are inadequate. Hence, continuation of the existing laws, with their limitations, will not reduce the baseline pressures. The limitations in existing laws that result in the current baseline pressures will also inhibit the prevention, control and mitigation of new pressures that occur as settlement patterns and economic activities adapt to climate change. Therefore, identification and reform of the limitations of the existing laws are needed to reduce baseline pressures and prevent, control and mitigate new pressures.

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Too much too soon? On the rise and fall of Australia’s coastal climate change law – Philippa England

For a number of years, government and academic sources have labelled adaptation to climate change an issue for risk management. These sources have recommended methods and procedures for calculating the range of risks presented by climate change. However, analysing risk is only one part of the equation; the more intractable problem lies in deciding how to respond to those risks. The article explores how the risk threshold has been set in recent policy documents and in newly emergent legislation. It analyses two case studies – neither of which can claim unequivocal success – as test cases for the leading policy recommendations. Given the twists and turns in the law and policy at work in both case studies, it is questioned whether the risk threshold was set correctly in either case and also considered are what changes need to be made, both in setting the risk threshold and in determining the appropriate legal tools for that threshold.

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From rights to responsibilities: Reconceptualising carbon sequestration rights in Australia – Pamela O’Connor, Sharon Christensen, WD Duncan and Angela Phillips

Biosequestration of carbon in trees, forests and vegetation is a key method for mitigating climate change in Australia. To facilitate this, all States have enacted legislation for carbon sequestration rights, separating commercial rights in carbon from ownership of the land, trees and vegetation in which the carbon is sequestered. Ownership of carbon sequestration rights under State law is a prerequisite for the issue of carbon credits to proponents of “eligible sequestration offsets projects” under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (Carbon Farming Act). This article examines the extent to which current State carbon sequestration rights support the offsets regime established by the Carbon Farming Act. The Commonwealth Act is concerned with allocating responsibilities to ensure the maintenance of the carbon sequestration, while the State Acts confer commercial rights in the carbon and leave the responsibilities to be allocated by private agreements. The carbon sequestration rights as defined by State laws do not confer the rights of access and management over land that a project proponent needs in order to discharge its responsibilities to maintain the carbon sequestration.

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Strategic environmental assessment in Australian land-use planning – Simon Marsden

This article considers the application of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provisions on strategic environmental assessment (SEA) to land-use planning. Until recently, other than application to the fisheries sector, the use of these provisions has been extremely limited. Law reform in 2006 intended to improve the take-up of the provisions, which depend on agreement between the proponent and the Australian Environment Minister, appears to have made a difference, with SEA applied to resource development proposals and in the land-use planning sector – the latter of which globally has resulted in the greatest number of SEAs. The article evaluates the strengths and weaknesses of recent practice in this sector, which was begun in the ACT in 2008. Conclusions are drawn that after considerable delays in implementation, SEA may at last have begun to realise its Australian potential.

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“Greenbacks” versus green credits: Has the Carbon Farming Initiative got the balance right? – Emma French

The Carbon Farming Initiative (CFI) is an Australian government carbon offset scheme allowing agricultural producers to generate carbon credits from emissions mitigation and sequestration activities on Australian farms. This article explores the potential of the CFI to be effective as an offset scheme. It does so by examining how successfully key design principles have been balanced in the scheme. The scheme is guided by two design principles: to ensure environmental integrity; and to enable broad participation. The CFI incorporates a number of strong environmental integrity features, many of which represent significant improvements comparative to the Clean Development Mechanism. The scheme also addresses the economic issues specific to the agricultural industry to enable participation by producers. The article concludes that the two criteria have been well balanced, but that the CFI will likely be underutilised because of regulatory risk.

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“Risk-based regulation” in environmental governance – Bruce Lindsay and Cecilia Riebl

Concepts of “risk-based” regulation in the environmental sphere have acquired considerable official interest in Australia in recent years, both at national and State levels. This article considers origins and context of “risk-based approaches” to environmental regulation in Australia and internationally, with a view to interrogating the meaning of these concepts. It critically reviews the content and practical operation of “risk-based approaches” to environmental regulation, concluding that cautious consideration is needed. The article outlines a principled framework for the interpretation and application of risk models in the service of environmental protection.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 5 Contents or here: WAU – EPLJ Vol 30 Pt 5 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 30 Part 6) contains the following material:

Articles

Transferable lessons for climate change adaptation planning? Managing bushfire and coastal climate hazards in Australia – Anita Foerster, Andrew Macintosh and Jan McDonald

Climate change is predicted to exacerbate and alter the frequency, severity and distribution of many natural hazards in Australia, including bushfire and coastal hazards. Land-use planning is widely recognised as a critical tool for reducing the vulnerability of settlements and infrastructure to such hazards. In Australia, legal and policy frameworks for land-use planning have been the subject of much scrutiny and reform effort in recent years to respond to potential climate change impacts. This article compares and contrasts the approach taken to these two different climate hazards, as well as the approaches taken by different State and Territory jurisdictions and local governments. The analysis focuses on: the range of spatial planning instruments available to address climate hazards; the types of instruments currently in use; and recent experiences of instrument design and implementation. Drawing on this analysis, a number of transferable lessons regarding the choice, design and implementation of spatial planning instruments are identified to inform the ongoing development of legal frameworks for climate change adaptation.

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Adaptive reuse of heritage buildings – do current planning and heritage controls support the concept? – Paul Leadbeter

This article examines the concept of adaptive reuse of heritage places and notes the benefits and perceived disadvantages of applying such a concept to buildings identified as being of heritage significance. It notes that although there have been many successful examples of the application of the concept around Australia, there are limited references to the concept in the heritage and planning legislation and policy of the States and mainland Territories. The article maintains that the success is due in large part to the careful application of the adaptive reuse principles contained in the Australian ICOMOS Charter for Places of Cultural Significance 1999 (the Burra Charter) on a case-by-case basis by heritage advisors and heritage authorities. It queries whether this is the best way to approach issues of adaptive reuse and suggests that, ideally, heritage and planning legislation should contain more specific provisions requiring that adaptive reuse proposals be undertaken in accordance with the Burra Charter principles.

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The role of export credit agencies in environmental management: International benchmarks in ECA financing – Susan Shearing

The current and projected involvement of public export credit agencies (ECAs) in financing large-scale resource-related developments raises questions as to the extent to which the potential environmental and social outcomes of supported activities are addressed by ECAs. Academic, civil society and media attention has focussed on the role of private commercial banks in financing large-scale infrastructure projects that frequently carry significant adverse environmental and social impacts. However, less attention has been paid to the role of ECAs in this area, notwithstanding the extensive involvement of such agencies in supporting projects with similar impacts. This article examines the international environmental and social standards for sustainable finance that have been adopted by ECAs over the past two decades and considers the legal and policy frameworks for implementation of those environmental and social standards by two ECAs: Australia’s Export Finance and Insurance Corporation; and Canada’s Export Development Canada. The article raises a number of issues arising from the approach of these ECAs in implementing the standards and draws observations from the case studies as to the extent to which ECAs might operate as catalysts for sustainable development.

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Environmental property rights in Australia: Constructing a new Tower of Babel – Paul Martin, Amanda Kennedy, John Page and Jacqueline Williams

An argument for market-based approaches to environmental conservation is the expectation that a property rights approach can achieve environmental goals efficiently, provide new sources of funds, and allow industry to find cost-effective solutions to environmental harms. It is also argued that property rights-based approaches minimise the risk of the “tragedy of the commons” and ensure resources are put to the highest value use. Legal property interests are thus fundamental to an “environmental economy”. However, this article argues that the proliferation of environmental market instruments and incentive programs in Australia has the potential to create unexpected legal complexities, largely due to a failure to account for the interactions between property interests.

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Native title – a right to burn and fire the land? Savanna burning and the Carbon Farming Initiative in northern Australia – Michael O’Donnell

The Indigenous practice of firing and burning the land was an integral part of Indigenous land management in Australia. The nascent restoration of this form of land management facilitates Indigenous peoples continuing occupation and use of their traditional country whilst providing new opportunities in the modern economy. This article analyses the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) and the savanna burning methodology approved under that legislation and the relationship to native title in Australia. The methodology applies to tropical savannas in northern Australia in areas that receive more than 1,000 mm rainfall annually and is retrospective to 1 July 2010. The Carbon Farming Initiative provides exclusive possession native titleholders with a carbon right and status as a project proponent, which includes the legal right to carry out a project. This enables these native titleholders to acquire Australian Carbon Credit Units and therefore participate in the modern carbon market.

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For the pdf version of the table of contents, click here: LOLA – EPLJ Vol 30 Pt 6 Contents or here: WAU – EPLJ Vol 30 Pt 6 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 1) contains the following material:

Articles

How do environmental conservation laws interact with environmental aspects of water laws? – Michael Bennett and Alex Gardner

The environmental protection and conservation of wetlands, including Ramsar-listed wetlands of international importance, is a valuable object of study to understand how environmental protection laws interact with environmental aspects of water law. This article considers Australia’s Ramsar obligations and their implications for water allocation and management. It uses a case study, the management of the Ramsar-listed Forrestdale and Thomsons Lakes, to illustrate how environmental conservation laws and water laws can interact in meeting those obligations. The article makes some observations on the respective role of water resource management laws, laws for the protection of areas designated for conservation, and environmental impact assessment legislation. It concludes that, while each of these laws has their own strengths and weaknesses, properly designed water laws are the superior tool for securing water for wetlands.

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Biodiversity offsets: Practice and promise – Martin Fallding

Biodiversity offsets are a tool to compensate for biodiversity losses, and to protect and maintain biodiversity values in alternative locations. Offsets normally apply where biodiversity loss cannot be avoided, mitigated or minimised in development proposals, and represent an often controversial decision-making innovation at the intersection of science, law, politics and economics. Biodiversity conservation underpins ecologically sustainable development and has become an important consideration in land-use planning. This article outlines what offsets are, how they work, and identifies issues for their application into the future. It provides background on how offsets have evolved and reviews policy and practice in Australia, especially in New South Wales. Biodiversity offsetting practice across Australia is inconsistent, complex and confusing. The article discusses the application of offset principles, legislative and policy frameworks, and links to land-use planning processes. Improvements to current offsetting approaches are also suggested.

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Legal frameworks for unique ecosystems – how can the EPBC Act offsets policy address the impact of development on seagrass? – Justine Bell, Megan I Saunders, Catherine E Lovelock and Hugh P Possingham

Environmental or biodiversity offset policies allow for impacts occurring at one site to be offset through activities at another site. The federal government has recently released a policy for offsetting the impacts of activities approved under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act policy can be used to offset impacts on terrestrial and marine ecosystems, and one of the first applications of the policy has been to offset impacts on seagrass meadows at risk due to the Abbot Point coal terminal expansion. The significant ecological differences between terrestrial and marine ecosystems, such as seagrass meadows, require different management approaches to ensure that impacts are offset. This article analyses the EPBC Act policy to determine whether it adequately caters for offsetting impacts on marine ecosystems, with seagrass used as an example. It concludes with recommendations for policy change directed at ensuring that the unique characteristics of seagrass ecosystems are considered in offset policies.

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Participation from the deep freeze: “Chilling” by SLAPP suits – Judith A Preston

True democracy rests on a number of fundamental tenets, including the right of the public to actively and effectively engage in governance. This article explores one of the impediments to exercising public participation rights – namely, the litigious tactic of Strategic Litigation Against Public Participation, known as “SLAPP suits”. The SLAPP suit is engaged by powerful and usually well-resourced parties to stifle public opinion against unpopular proposals and developments. SLAPP suits are used in a number of different areas, such as trade practices, consumer and animal protection rights; however, this article examines their use in the environmental context with reference to recent developments such as anti-SLAPP legislation and “SLAPP-backs” to counteract their “chilling” effect.

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The disappearance of ecologically sustainable development within Australia’s mining law framework – Stephanie Venuti

Australia’s current regulatory framework concerning energy use and production reflects a strong policy commitment to the development of the coal seam gas (CSG) industry. CSG is likely to play a greater role in domestic energy production and as an export in the form of liquefied natural gas. However, the expansion of the CSG industry in Australia has been met with significant public opposition. At the core of the public debate is the current regulatory regime’s failure to address inherent issues of land-use conflict between landowners, the agricultural industry, the mining sector and government. This article reviews the recent suite of CSG regulatory reforms in Australia, (focusing on New South Wales) and comments on the limited consideration of the social and environmental impacts of CSG development. Current CSG laws and polices fail to apply a balanced approach to environmental and agricultural concerns in the face of economic incentives to extract and produce CSG. As such, this article considers CSG regulation as demonstrative of the difficulties in implementing principles of ecologically sustainable development within emerging areas of energy policy and law.

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For the pdf version of the table of contents, click here: WAU – EPLJ Vol 31 Pt 1 Contents

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 2) contains the following material:

Articles

Between a rock and a hard place: Legislative shortcomings hindering Aboriginal cultural heritage protection – Alison Packham

In enacting legislation for increased penalties and a strict liability offence for harming Aboriginal cultural heritage in 2010, the New South Wales Government went some way towards recognising the importance of this heritage to both Aboriginal and non-Aboriginal communities. However, as the recent Land and Environment Court decision in Ausgrid has highlighted, effective protection of Aboriginal cultural heritage necessitates further legislative change that addresses more fundamental deficiencies in the regulatory scheme. This article explores the application of the increased penalty regime in Ausgrid, to suggest additional areas for legislative reform.

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Regulating for groundwater-use efficiency: A toolbox approach based on the experiences of three disparate jurisdictions – Madeleine Hartley

Water-use efficiency is critical to ensuring the sustainable use of groundwater resources. To varying degrees, water-use efficiency measures are embedded in groundwater management in the Gnangara Mound (Western Australia), the Namoi Catchment (New South Wales), and in Colorado (United States). Each of these areas is subject to heavy competition for water resources, which arises from the challenges of climate uncertainty, population increases and agricultural water demand. Using case studies of these areas, this article introduces a regulatory toolbox approach to facilitating water-use efficiency to meet these challenges. A toolbox approach is useful because it integrates the use of practical measures that can help achieve water-use efficiency and unites them through their relationship to the end goal of sustainability. However, the effective operation of key toolbox measures can be challenged by ill-defined concepts and implementation inadequacies. This article identifies shortcomings in water resources accounting and anti-speculation measures as specific issues that threaten both regulatory effectiveness for achieving water-use efficiency and their contribution to sustainability of groundwater resources. Because these measures provide a critical foundation for the later incorporation of other water-use efficiency toolbox measures, it is fundamental that they are designed to achieve resource sustainability through water-use efficiency.

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Adaptation strategies for biodiversity conservation: Has Australian law got what it takes? – Phillipa McCormack and Jan McDonald

Climate change presents a unique threat to Australia’s biodiversity. It will amplify the effect of existing non-climate anthropogenic stressors and act in its own right to accelerate biodiversity decline. New approaches to conservation practice will be needed and these must be supported by strong but flexible conservation legal frameworks. This article reviews the principal adaptation strategies supported in the conservation literature and considers the extent to which they are currently represented in Australian law. It identifies the ways in which these strategies are facilitated or impeded under current legal frameworks. To conserve biodiversity under climate change, new processes are needed for negotiating trade-offs between competing conservation goals, particularly in relation to high-intervention strategies such as assisted colonisation and ex situ conservation.

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Seeking balance: The promise and reality of biodiversity offsetting – Peta Norris

Avoid, mitigate, offset – that is the mantra of biodiversity offsetting policy. Reliance on offsetting to compensate for the residual impacts of development is increasing. It holds promise in the quest to balance social and economic development with environmental concerns; but, in reality, when offsetting is proposed, impacts to biodiversity are certain and effective offsets are not. Offsetting is explored through two case studies from the Hunter Valley of New South Wales – retention offsets for the critically endangered North Rothbury Persoonia at the Huntlee New Town Site near Branxton, and restoration offsets for Green and Golden Bell Frogs on Kooragang Island. When driven by politics and economics, biodiversity offsetting schemes risk being no more than “successful ‘symbolic policies’”, hollow attempts to curb biodiversity decline.

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For the pdf version of the table of contents, click here: WAU – EPLJ Vol 31 Pt 2 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 3) contains the following material:

Articles

The rule of law, the public interest and the management of natural resources in Australia – Douglas E Fisher

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

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One stop shop for environmental approvals a messy backward step for Australia – Dr Chris McGrath

The new Australian Government is establishing what it calls a “one stop shop” for environmental approvals. This principally involves entering approval bilaterals with State and Territory governments to accredit their decisions as satisfying any approval requirements under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Federal Environment Minister claims that the one stop shop “will slash red tape and increase jobs and investment, whilst maintaining environmental standards”. Whether the claimed benefits are achievable is an open question and there are serious potential problems with the proposed system. There is remarkably little evidence to support the claim that significant time and costs savings will be achieved by the policy. It also undermines one of the key functions and benefits of the EBPC Act in practice – to provide an appropriate level of oversight for State government decisions. This problem will be exacerbated if the Australian Government breaks its pre-election commitment to retain power for decisions on State government projects.

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Australian World Heritage in danger – Simon Marsden

This article analyses recent Australian developments under the World Heritage Convention with respect to Macquarie Island, the Great Barrier Reef and the Tasmanian Wilderness. It reviews the state of conservation of each of these properties which have been (Macquarie Island), or are (Great Barrier Reef and Tasmanian Wilderness), at risk of inscription on the List of World Heritage in Danger. The primary focus is upon international law and the Great Barrier Reef, the site that is the most iconic and subject to the greatest threats. The purpose of this List and the process by which properties can be inscribed on it are reviewed in the context of Australia’s compliance with its obligations under the Convention.

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Protecting third party rights of appeal, protecting the environment: A Tasmanian case study – Madeleine Figg

The importance of public participation in environmental and planning law is well established. Despite this, policies to “streamline” environmental approval processes are in vogue in many Australian jurisdictions, leaving public participation opportunities, including third party rights of appeal, vulnerable to restriction. Through a case study of the Tasmanian Resource Management and Planning System and an examination of practitioner experience, this article demonstrates that allowing accessible third party rights of appeal in planning systems frequently leads to better decision-making, as well as providing a means of achieving better environmental outcomes. Calls for reform should be directed at improving access issues, rather than limiting or abolishing third party appeal rights.

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The e-waste dilemma: Are international measures and product stewardship schemes a solution? – Zada Lipman and Matthew Ind

The disposal of e-waste is an increasing challenge due to the acceleration in its volume and the environmental and human health hazards associated with its disposal. The issue is not confined to domestic waste disposal, but presents international complexities as large volumes of e-waste find their way to developing countries, testing their fragile environmental and human health regulatory systems. The global community has responded by adopting a number of measures, ranging from international conventions regulating movement of hazardous material through to domestic policies and legislation seeking to control products throughout their life cycle. This article will examine the problems associated with the disposal of e-waste and evaluate some of the measures that have been adopted to address them. A particular focus will be the use of product stewardship arrangements, including the Product Stewardship Act 2011 (Cth).

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2030 vision: An analysis of proposed structural reforms of the European Union’s Emissions Trading Scheme – Joshua Prentice

With a surplus of over two billion emissions allowances on the market, the carbon price under the European Union’s Emissions Trading Scheme has plummeted since 2008. Important changes to reduce free allocation of emissions allowances were implemented in 2013. However, further structural reforms are necessary to correct the imbalance between supply and demand for emissions allowances. In January 2014, the European Commission proposed two structural reforms – sharpening the annual linear reduction factor and introducing a market stability reserve. This article analyses the potential effectiveness of these reform proposals, which will be essential for ensuring that the European Union meets its overall 40% emissions reduction target by 2030 in a cost-effective manner.

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For the pdf version of the table of contents, click here: WAU – EPLJ Vol 31 Pt 3 Contents.

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 4) contains the following material:

COMMENT

• A peek around Kevin’s Corner: Adapting away substantive limits?

Articles

Theory to practice: Adaptive management of the groundwater impacts of Australian mining projects – Jessica Lee

Adaptive management is an approach to natural resource management that has gained increasing traction in Australia. Despite its appearance in a growing number of natural resource policies and regulatory instruments there remains little consideration of what adaptive management really means, how it is faring in practice and what legal mechanisms are required for its effective implementation. This article examines adaptive management in the context of groundwater impact management at Australian mines. The article first constructs a theoretical model for the practice of adaptive management and uses the United States experience to identify some primary legal obstacles to its effective implementation. The practice of adaptive groundwater management at two Australian mining projects is assessed. Each case study is evaluated against the identified primary legal obstacles with a view to assessing whether similar difficulties are being experienced in Australia. Finally, the article recommends a legal framework for the improved implementation of adaptive groundwater management at Australian mining projects that will address the legal obstacles currently being faced.

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The precautionary principle, the coast and Temwood Holdings – Hon Justice Stephen Estcourt

In 1999, Stein J, then of the New South Wales Court of Appeal, observed extra judicially that how the rhetoric of the precautionary principle could be operationalised was one of the challenges for the first decade of the 21st century. French comparative law and environmental law specialist, Professor Nicolas de Sadeleer, expressed the view in 2002 that the logic of the law, with its quest for certainty, finds itself out of step with the quest of science to describe unpredictable natural phenomena and environmental threats that are inherently uncertain. The aim of this article is to endeavour to see how far Australia has come since 1992 in “operationalising” the precautionary principle, particularly in relation to planning and development applications relating to the coast. The conclusion is that the cases referred to demonstrate that there is no lack of flexibility in Australian courts and tribunals in accommodating scientific uncertainty, and in balancing the precautionary principle and the other components of environmentally sustainable development with the continuing pressure for development of the Australian coast.

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 “Marginal improvements in the West”: New approaches to managing complex environmental and planning cases in the State Administrative Tribunal of Western Australia – Peter McNab

The practical application of the theory of incrementalism can lead to “marginal gains” in a variety of complex processes, including those of business and government. This article discusses that theory (and its counterparts) with reference to three recent State Administrative Tribunal of Western Australia cases. The use of facilitative dispute resolution processes combined with other court and tribunal methods are examined to see whether any “marginal gains” have been achieved in the handling of complex environmental/planning processes in the State Administrative Tribunal.

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Science hubris and insufficient legal safeguards – Paul Martin and Jacqueline Williams

In the pursuit of efficient natural resource governance, market instruments offer many benefits, so too science-informed regulation. However, there are unrecognised fundamental risks with power invested in property owners or technical experts to determine how best natural resources are to be governed. In this article the authors discuss some recent developments in science and property based resource governance in water management in Australia as an illustration of more pervasive developments around the world. The authors suggest that while it is important to take advantage of innovations that can improve the effectiveness and efficiency of natural resource governance, it is no less important to create mechanisms to guard against the hubris that can be tacitly embedded. Such hubris has implications for the human rights of users and stewards of the environment, particularly Indigenous and rural communities, whose economic and educational disadvantages can be compounded by institutionalisation of particular forms of privilege.

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For the pdf version of the table of contents, click here: WAU – EPLJ Vol 31 Pt 4 Contents.

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Are you a law student in New South Wales, or a young lawyer under the age of 36 years or with less than five years’ experience? Are you looking for the chance to be published in the highly prestigious Environmental & Planning Law Journal? Then get your entry in for the 2014 Environment and Planning Law Essay Competition, for your chance to win cash, vouchers, prizes, and potential publication!

Essays should be no more than 2,500 words, and can cover any current issue in the area of environment and planning law. The best essay will also have the chance to be published (subject to review) in Thomson Reuters Environmental & Planning Law Journal. The Journal is headed by General Editor Dr Gerry Bates, Adjunct Professor of the Australian Centre for Climate and Environmental Law (ACCEL) at the University of Sydney.

The competition is organised by the Law Society of New South Wales Young Lawyers Environment and Planning Law Committee. Entries closes at midnight 20 October 2014. For further details, including a link to a list of suggested essay topics, see the NSW Young Lawyers flyer.

To find out more about the Environmental & Planning Law Journal, including details on how to submit (non-competition) articles, click here.

Are you looking for new avenues in which to share your insights?

Have you already written an article on Environmental or Planning Law that you would like to see published, or do you know someone who has?

Do you want your name, your institution’s name or your firm’s name recognised for academic and professional leadership in Environment and Planning and related disciplines?

What is the Environmental and Planning Law Journal?

The Environmental and Planning Law Journal is the recognised vehicle in Australia for the publication of high-quality, in-depth analysis and comment on all aspects of environmental law and policy.

The EPLJ specialises in cutting-edge analysis, publishing well-respected articles that cover significant developments across the environmental spectrum, including climate change and the impact on corporate law.

The journal has broad scope, addressing topics such as:

• integrated natural resources management;
• the ramifications of planning decisions;
• energy development;
• impacts on biodiversity;
• sustainability strategies;
• corporate liability and law enforcement;
• and environmental assessment.

Distinguished General Editor

The Environmental and Planning Law Journal benefits from the oversight of Dr Gerry Bates, General Editor.

Dr Bates is an Adjunct Professor of Environmental Law at the Australian Centre for Climate and Environmental Law at The University of Sydney.

The General Editor works with an Advisory Board of experienced practitioners and academics to provide in-depth discourse on all aspects of environmental law and policy.

Invitation for Submissions

The General Editor is now inviting submissions for articles, letters, comments, reviews or case notes for publication in the Environmental and Planning Law Journal. The journal welcomes submissions from judges, practitioners and academics as well as law students. The journal issues quarterly and complies with the Higher Education Research Data Collection (HERDC) Specifications for peer review.

If you would like to become a contributor, please email your contribution or comments to the Production Editor, Environmental and Planning Law Journal, at  lta.eplj@thomsonreuters.com, for forwarding to the General Editor.

For article submission requirements, please go to www.thomsonreuters.com.au/support/as_contributors.asp.

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The latest issue of the Environmental and Planning Law Journal (Volume 31 Part 5) contains the following material:

Articles

Compliance with Indigenous cultural heritage legislation in Queensland: Perceptions, realities and prospects – Michael J Rowland, Sean Ulm and Jill Reid

Since 1959, various pieces of legislation have been enacted in Queensland which include provisions for the protection of Indigenous cultural heritage. To date there has been very limited assessment of compliance with or the efficacy of these laws. The number of prosecutions under both Commonwealth and State legislative regimes is difficult to measure, but deemed to be low. This article explores a broad range of explanations both for the lack of prosecutions and also for the lack of research on compliance in general. It provides examples of prosecutions and attempted prosecutions under the various legislative regimes in Queensland, demonstrating that the reasons for compliance/noncompliance are complex. It is proposed that cultural heritage legislation in Queensland needs to be developed and controlled by a responsible government authority that can set standards and monitor all aspects of cultural heritage management. Cultural heritage management should also be incorporated at every level of environmental planning. Reporting of all cultural heritage activities should be mandatory. The current largely self-assessable and minimally regulated legislation fails to meet best practice cultural heritage management standards and its effectiveness is also difficult to measure.

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Restorative justice intervention in an Aboriginal cultural heritage protection context: Conspicuous absences? – Mark Hamilton

In the author’s previous work, (2008) 25 EPLJ 263, the successful use of restorative justice conferencing in the Land and Environment Court of New South Wales decision of Garrett v Williams (2007) 151 LGERA 92; [2007] NSWLEC 96 was canvassed. This article explores the development, or rather the lack thereof, in the use of restorative justice conferencing for offences against cultural heritage under the National Parks and Wildlife Act 1974 (NSW) since Garrett v Williams. Despite what appear ideal opportunities for both the Land and Environment Court and the New South Wales Parliament to promote the use of restorative justice conferencing, no such opportunities have been taken. These in the author’s view are lost opportunities to further restorative justice intervention in an Aboriginal cultural heritage protection context.

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Carbon pricing and renewable energy innovation: A comparison of Australian, British and Canadian carbon pricing policies – Karen Bubna-Litic and Natalie Stoianoff

Introducing its now-abolished carbon price from July 2012, Australia argued that a price on carbon would reduce greenhouse gas emissions by improving energy efficiency and increasing investment in clean technology innovation. The United Kingdom has priced carbon since 2008 and is in the process of major electricity market reform with the aim of attracting £100 billion of infrastructure investment. British Columbia in Canada introduced a carbon tax in 2008, providing support for clean technology industries through a variety of allowances and operating subsidies. This article compares the United Kingdom, Canada and Australia, to assess the evidence base and policy experience of these jurisdictions in carbon pricing. In so doing, the article identifies what lessons can be learnt from these policy frameworks in order to promote investment in low-carbon innovation.

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Implementing legislative and governance frameworks for integrated catchment management: The gap between theory and practice – Kate Matthews

Using the Victorian catchment management and land-use planning systems as a case study, this article evaluates the delivery of integrated catchment management (ICM) legislation and governance arrangements. A key finding is that despite being relatively strong “on paper”, practical implementation of ICM in Victoria is hampered by poor resourcing, a lack of communication between agencies, and differing views as to what ICM means in practice.

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The future of Land and Environment Court oversight of major project offsets – Vanessa Walsh

Policy-makers in New South Wales have recognised the need for a transparent and consistent response to the assessment of offsets proposals in addressing the biodiversity impacts of major projects. This follows a high-profile rejection of a biodiversity offset proposal by the Land and Environment Court (LEC) for a coalmine extension in the Hunter Valley. A policy and methodology for calculating offset requirements has since been prepared by the New South Wales Government and will be used by consent authorities in approving new major project development. This article examines how this policy is likely to impact upon the LEC’s important role in the oversight of offset proposals in both its merits review and judicial review jurisdiction. Whether implemented administratively or through legislation, this article concludes that oversight is likely to continue despite moves by the New South Wales Government to limit recourse to the LEC.

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For the pdf version of the table of contents, click here: WAU – EPLJ Vol 31 Pt 5 Contents.

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