Environmental constitutional reform in the developing world : shifting the perspective of international law?

In recent years a growing number of states have chosen to recognise environmental issues in their national constitutions. Some have added declarations about the value of the environment, some have sought to restrict or regulate government’s ability to take action which would potentially harm the environment, while others have proclaimed that citizens possess a right to an environment of a particular quality. A survey of these constitutional provisions reveals that the majority of reform in this area has come from developing states, including a number of states which have been designated as among the least developed countries in the world. The increasing focus on constitutional environmental rights appears to represent a shift in the attitude of developing and emerging economies, which could in turn be influential in setting the tone of the environmental rights debate more broadly, with potential to shape the future development of international law in the area. This chapter examines constitutional environmental rights in an attempt to determine whether consistent state practice can in fact be identified in this area which might form the basis of an emerging norm. It will also analyse some of the potential contributing factors to the proliferation of a constitutional right to a good environment among developing states, and the implications for the development of customary international law.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Submission to expert panel on constitutional recognition of Indigenous people

Submission recommended addition of a new 'self-enacting' preamble and enacting words to the Commownealth Constitution, and replacement of the 'race power' by a series of more specific powers relating to the recognition of native title and laws of the indigenous people.

Constitutional Law

"This book systematically explores and clarifies the complexities of Austrealian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments." -- book cover "Constitutional Law examines the foundational principles and concepts of this area of law. Written by practicing lawyers and lecturers in the subject, this book aims to provide an accessible yet comprehensive introductory text for Australian students. In eight parts this book systematically explores and clarifies the complexities of Australian Constitutional law and provides valuable critical analysis suitable for students, academics and government departments. An excellent resource for law students, Constitutional Law provides visual summaries in the form of flow charts, and each chapter includes key concepts and end-of-chapter discussion questions, further reading and useful websites and links. It also introduces students to key examinable areas, legal style essays, problems and assessment." -- publisher website

Archimedes, aid/watch, constitutional levers and where we now stand

Archimedes is reported as famously saying: 'Give me a place to stand and I will move the earth.' He was referring to the power of levers. His point was that a person of ordinary capacity with a place to stand, a fulcrum and a level could change the path of planets. This principle of physics is a metaphor for how the common law has moved over the last millennium. Courts have found a stable foundation on which to stand, such as the constitutional bedrock or well-grounded precedent, and, using cases as fulcrums and legal principles as levers, the have moved the law. Australia is at a critical juncture in the development of the law of charities. The High Court of Australia has held that political purposes can be charitable in certain circumstances. The Parliament of Australia has not only enshrined this in a statutory definition of charity but has done so with a preamble to the legislation which affirms the basis for this development in residing in the 'unique nature and diversity of charities and the distinctive and important role that they play in Australia'.

A disaggregate discrete choice model of transportation demand by elderly and disabled people in rural Virginia

This paper uses a correlated multinomial logit model and a Poisson regression model to measure the factors affecting demand for different types of transportation by elderly and disabled people in rural Virginia. The major results are: (a) A paratransit system providing door-to-door service is highly valued by transportation-handicapped people; (b) Taxis are probably a potential but inferior alternative even when subsidized; (c) Buses are a poor alternative, especially in rural areas where distances to bus stops may be long; (d) Making buses handicap-accessible would have a statistically significant but small effect on mode choice; (e) Demand is price inelastic; and (f) The total number of trips taken is insensitive to mode availability and characteristics. These results suggest that transportation-handicapped people take a limited number of trips. Those they do take are in some sense necessary (given the low elasticity with respect to mode price or availability). People will substitute away from relying upon others when appropriate transportation is available, at least to some degree. But such transportation needs to be flexible enough to meet the needs of the people involved.

Multi-scale bio-inspired place recognition

This paper presents a novel place recognition algorithm inspired by the recent discovery of overlapping and multi-scale spatial maps in the rodent brain. We mimic this hierarchical framework by training arrays of Support Vector Machines to recognize places at multiple spatial scales. Place match hypotheses are then cross-validated across all spatial scales, a process which combines the spatial specificity of the finest spatial map with the consensus provided by broader mapping scales. Experiments on three real-world datasets including a large robotics benchmark demonstrate that mapping over multiple scales uniformly improves place recognition performance over a single scale approach without sacrificing localization accuracy. We present analysis that illustrates how matching over multiple scales leads to better place recognition performance and discuss several promising areas for future investigation.

Protecting World Heritage sites from the adverse impacts of climate change : obligations for States Parties to the World Heritage Convention

Through its mandate to protect and preserve places of ‘outstanding universal value’, the World Heritage Convention provides an unlikely yet effective tool in global efforts to mitigate climate change. The practical efficacy of the Strategy to Assist States Parties to Implement Appropriate Management Responses (‘the Strategy’), which represents the World Heritage Committee’s primary response to the threats posed by climate change to World Heritage sites, is undermined by its weak stance on mitigation. This paper argues that the World Heritage Convention imposes stronger obligations on States Parties than those contained in the Strategy, including a duty on States Parties to commit to ‘deep cuts’ in greenhouse gas emissions. In order to ensure the continuing success of the World Heritage Convention States Parties must engage in extensive mitigation strategies without delay.

Equal shared parental responsibility and shared care post-return to Australia under the Hague Child Abduction Convention

This article explores the outcomes experienced by abducting primary carer mothers and their children post-return to Australia under the Hague Convention on Civil Aspects of International Child Abduction.1 The circumstances faced by families that experience international parental child abduction are examined by considering how part VII of the Australian Family Law Act 1975 (Cth) is applied to resolve parenting disputes post-return. At present, the statutory criteria found in part VII encourage an equal shared parental responsibility and shared care parenting approach.2 This emphasis aligns children’s best interests with collaborative parenting3 and their parents living within close geographical proximity of each other to facilitate the practicalities of the approach.4 Arguably, these statutory criteria guide the exercise of judicial discretion to determine a child’s best interests towards a parenting arrangement that is incompatible with the lifestyle and functional characteristics of these families.

Re-examining habitual residence as the sole connecting factor in Hague Convention child abduction cases

This article critiques the usefulness of habitual residence as the sole connecting factor in Hague Convention child abduction cases. This is achieved by examining the quality of this jurisdiction in light of changes in the gender dynamics underpinning international parental child abduction and the transnational family phenomenon. Arguably, the child’s habitual residence as a home environment of the nature anticipated by the Convention’s drafters is an increasingly outdated construct. This is due to an increase in both the number of abducting primary-carer mothers, and their families’ growing mobility. Judicial determinations of habitual residence made during Conven- tion return proceedings are entrenched in the state-centric paradigm. This paradigm is becoming increasingly incompatible with the lives of families which experience international parental child abduction.

A study of outcomes post-return to Australia under the Hague Child Abduction Convention for abducting primary-carer mothers and their children

This article reports the findings of an empirical study of outcomes experienced by abducting primary-carer mothers and their children post-return to Australia under the Hague Child Abduction Convention. The study specifically focused on legal and factual outcomes post-return to Australia as the child's habitual residence. The study contributes an original critique of the Convention's operation by examining the collective operation of Convention return proceedings and Pt VII proceedings under the Family Law Act 1975 (Cth) post-return. Convention return proceedings, and the resolution of the substantive parenting dispute post-return to Australia, are not distinct stages operating in isolation. Viewing them as such is a purely theoretical exercise divorced from the reality of the lives of transnational families. Arguably, a better measure of the Convention's success is the outcomes it produces as part of the entire system designed to address the contemporary problem of international parental child abduction. When a child is returned to Australia this system includes the operation of Australian family law.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

A Submission to the Senate Legal and Constitutional Affairs Committee on the Copyright Amendment (Online Infringement) Bill 2015 (Cth)

The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect,recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull. In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don’t make money: * Complaining about piracy. * Calling your customers thieves. * Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. This submission considers a number of key elements of the Coalition Government’s Copyright Crackdown. Part 1 examines the proposals in respect of the Copyright Amendment (Online Infringement) Bill 2015 (Cth). Part 2 focuses upon the proposed Copyright Code. Part 3 considers the question of safe harbours for intermediaries. Part 4 examines the question of copyright exceptions – particularly looking at the proposal of the Australian Law Reform Commission for the introduction of a defence of fair use. Part 5 highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law.