The diversity of interests in environmental governance : a challenge for the rule of law

The function of environmental governance and the principle of the rule of law are both controversial and challenging. To apply the principle of the rule of law to the function of environmental governance is perhaps even more controversial and challenging. A system of environmental governance seeks to bring together the range of competitive and potentially conflicting interests in how the environment and its resources are managed. Increasingly it is the need for economic, social and ecological sustainability that brings these interests – both public and private – together. Then there is the relevance of the principle of the rule of law. Economic, social and ecological sustainability will be achieved – if at all – by a complex series of rules of law that are capable of enforcement so as to ensure compliance with them. To what extent do these rules of law reflect the principle of the rule of law? Is the principle of the rule of law the formally unstated value that is expected to underpin the legal system or is it the normative predicate that directs the legal system both vertically and horizontally? Is sustainability an aspirational value or a normative predicate according to which the environment and its resources are managed? Let us deal sequentially with these issues by reviewing a number of examples that demonstrate the relationship between environmental governance and the rule of law.

The rules of autogeddon : sex death and law in J G Ballard’s Crash

It was reported that the manuscript of Crash was returned to the publisher with a note reading ‘The author is beyond psychiatric help’. Ballard took the lay diagnosis as proof of complete artistic success. Crash conflates the Freudian tropes of libido and thanatos, overlaying these onto the twentieth century erotic icon, the car. Beyond mere incompetent adolescent copulatory fumblings in the back seat of the parental sedan or the clichéd phallic locomotor of the mid-life Ferrari, Ballard engages the full potentialities of the automobile as the locus and sine qua non of a perverse, though functional erotic. ‘Autoeroticism’ is transformed into automotive, traumatic or surgical paraphilia, driving Helmut Newton’s insipid photo-essays of BDSM and orthopædics into an entirely new dimension, dancing precisely where (but more crucially, because) the ‘body is bruised to pleasure soul’. The serendipity of quotidian accidental collisions is supplanted, in pursuit of the fetishised object, by contrived (though not simulated) recreations of iconographic celebrity deaths. Penetration remains as a guiding trope of sexuality, but it is confounded by a perversity of focus. Such an obsessive pursuit of this autoerotic-as-reality necessitates the rejection of the law of human sexual regulation, requiring the re-interpretation of what constitutes sex itself by looking beyond or through conventional sexuality into Ballard’s paraphiliac and nightmarish consensual Other. This Other allows for (if not demands) the tangled wreckage of a sportscar to function as a transformative sexual agent, creating, of woman, a being of ‘free and perverse sexuality, releasing within its dying chromium and leaking engine-parts, all the deviant possibilities of her sex’.

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

The role of law in responding to climate change : emerging regulatory, liability and market approaches

Climate change presents as the archetypal environmental problem with short-term economic self-interest operating to the detriment of the long-term sustainability of our society. The scientific reports of the Intergovernmental Panel on Climate Change strongly assert that the stabilisation of emissions in the atmosphere, to avoid the adverse impacts of climate change, requires significant and rapid reductions in ‘business as usual’ global greenhouse gas emissions. The sheer magnitude of emissions reductions required, within this urgent timeframe, will necessitate an unprecedented level of international, multi-national and intra-national cooperation and will challenge conventional approaches to the creation and implementation of international and domestic legal regimes. To meet this challenge, existing international, national and local legal systems must harmoniously implement a strong international climate change regime through a portfolio of traditional and innovative legal mechanisms that swiftly transform current behavioural practices in emitting greenhouse gases. These include the imposition of strict duties to reduce emissions through the establishment of strong command and control regulation (the regulatory approach); mechanisms for the creation and distribution of liabilities for greenhouse gas emissions and climaterelated harm (the liability approach) and the use of innovative regulatory tools in the form of the carbon trading scheme (the market approach). The legal relations between these various regulatory, liability and market approaches must be managed to achieve a consistent, compatible and optimally effective legal regime to respond to the threat of climate change. The purpose of this thesis is to analyse and evaluate the emerging legal rules and frameworks, both international and Australian, required for the effective regulation of greenhouse gas emissions to address climate change in the context of the urgent and deep emissions reductions required to minimise the adverse impacts of climate change. In doing so, this thesis will examine critically the existing and potential role of law in effectively responding to climate change and will provide recommendations on the necessary reforms to achieve a more effective legal response to this global phenomenon in the future.

Second Life machinima enhancing the learning of law : Lessons from successful endeavours

A traditional approach centred on weekly lectures, perhaps supported by a tutorial programme, still predominates in modern legal education in Australia. This approach tends to focus on the transmission of knowledge about legal rules and doctrine to students who adopt a largely passive role. Criticisms of the traditional approach have led to law schools expanding their curricula to include the teaching of skills, including the skill of negotiation and an appreciation of legal ethics and professional responsibility. However, in a climate of limited government funding for law schools in Australia, innovation in legal education remains a challenge. This paper considers the successful use of Second Life machinima in two programs, Air Gondwana and Entry into Valhalla and their part in the creation of engaging, effective learning environments. These programs not only engage students in active learning but also facilitate flexibility in their studies and other benefits. The programs yield important lessons concerning the use of machinima innovations in curricula, not only for academics involved in legal education but also those in other disciplines, especially those that rely on traditional passive lectures in their teaching and learning approaches.

Legal Regulation of Corporate Social Responsibility : A Meta-Regulation Approach of Law for Raising CSR in a Weak Economy

"Even though Corporate Social Responsibility (CSR) has become a widely accepted concept promoted by different stakeholders, business corporations' internal strategies, known as corporate self-regulation in most of the weak economies, respond poorly to this responsibility. Major laws relating to corporate regulation and responsibilities of these economies do not possess adequate ongoing influence to insist on corporate self-regulation to create a socially responsible corporate culture. This book describes how the laws relating to CSR could contribute to the inclusion of CSR principles at the core of the corporate self-regulation of these economies in general, without being intrusive in normal business practice. It formulates a meta-regulation approach to law, particularly by converging patterns of private ordering and state control in contemporary corporate law from the perspective of a weak economy. It proposes that this approach is suitable for alleviating regulators' limited access to information and expertise, inherent limitations of prescriptive rules, ensuring corporate commitment, and enhance the self-regulatory capacity of companies. This book describes various meta-regulation strategies for laws to link social values to economic incentives and disincentives, and to indirectly influence companies to incorporate CSR principles at the core of their self-regulation strategies. It investigates this phenomenon using Bangladesh as a case study."--publisher website

Admissions of law or fact?

In Pollock v Thiess Pty Ltd, McMeekin J considered two applications for the withdrawal of deemed admissions. The judgment provides important guidance on pleadings and deemed admissions under the Uniform Civil Procedure Rules 1999 (Qld).

The rule of law, the public interest and the management of natural resources in Australia

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.

Retrospectivity and the rule of law

This book analyses and refines the arguments for and against retrospective rule making, concluding that there is one really strong argument against it: the expectation that, if an individual's actions are considered by a future court, the legal consequences of that action will be determined by the law that was discoverable at the time the action was performed. This argument, which goes to the heart of the rule of law, is generally determinative. However, in some cases the argument does not run and this book suggests that, in some areas of law, reliance should be actively discouraged by prospective warnings that the law is subject to change.

Teachers reporting child sexual abuse : towards evidence-based reform of law, policy and practice

This report presents the results of the largest study ever conducted into the law, policy and practice of primary school teachers’ reporting of child sexual abuse in New South Wales, Queensland and Western Australia. The study included the largest Australian survey of teachers about reporting sexual abuse, in both government and non-government schools (n=470). Our research has produced evidence-based findings to enhance law, policy and practice about teachers’ reporting of child sexual abuse. The major benefits of our findings and recommendations are to: • Show how the legislation in each State can be improved; • Show how the policies in government and non-government school sectors can be improved; and • Show how teacher training can be improved. These improvements can enhance the already valuable contribution that teachers are making to identify cases of child sexual abuse. Based on the findings of our research, this report proposes solutions to issues in seven key areas of law, policy and practice. These solutions are relevant for State Parliaments, government and non-government educational authorities, and child protection departments. The solutions in each State are practicable, low-cost, and align with current government policy approaches. Implementing these solutions will: • protect more children from sexual abuse; • save cost to governments and society; • develop a professional teacher workforce better equipped for their child protection role; and • protect government and school authorities from legal liability.

Safety-restraint use rate as function of law enforcement and other factors : preliminary analysis

Persistent use of safety restraints prevents deaths and reduces the severity and number of injuries resulting from motor vehicle crashes. However, safety-restraint use rates in the United States have been below those of other nations with safety-restraint enforcement laws. With a better understanding of the relationship between safety-restraint law enforcement and safety-restraint use, programs can be implemented to decrease the number of deaths and injuries resulting from motor vehicle crashes. Does safety-restraint use increase as enforcement increases? Do motorists increase their safety-restraint use in response to the general presence of law enforcement or to targeted law enforcement efforts? Does a relationship between enforcement and restraint use exist at the countywide level? A logistic regression model was estimated by using county-level safety-restraint use data and traffic citation statistics collected in 13 counties within the state of Florida in 1997. The model results suggest that safety-restraint use is positively correlated with enforcement intensity, is negatively correlated with safety-restraint enforcement coverage (in lanemiles of enforcement coverage), and is greater in urban than rural areas. The quantification of these relationships may assist Florida and other law enforcement agencies in raising safety-restraint use rates by allocating limited funds more efficiently either by allocating additional time for enforcement activities of the existing force or by increasing enforcement staff. In addition, the research supports a commonsense notion that enforcement activities do result in behavioral response.

Digital constitutionalism and the role of the rule of law in the governance of virtual communities

This project proposes a new conceptual framework for the regulation of social networks and virtual communities. By applying a model based upon the rule of law, this thesis addresses the growing tensions that revolve around the public use of private networks. This research examines the shortcomings of traditional contractual governance models and cyberlaw theory and provides a reconstituted approach that will allow public constitutional-type interests to be recognised in the interpretation and enforcement of contractual doctrine.