National Australasian Convention, Sydney 1891

Photograph of the delegates of the 1891 Australasian Convention held in Sydney.

Integrated natural resource management in Australia: the opportunity offered by a national coastal policy

Under the Australian Constitution the management (and planning) of Crown Land is a State and Territory Government responsibility. When this is considered in conjunction with the Offshore Constitutional Settlement, which affirmed that coastal waters out to three nautical miles (in general) offshore were also the responsibility of State and Territory Governments, then clearly coastal management in Australia is largely a State/Territory responsibility.

Beyond three nautical miles it is a different story. Under the United Nations Law of the Sea Convention (UNCLOS), which Australia ratified in October 1994, Australia claims jurisdiction out to 200 nautical miles and beyond (Wescott, 2000). These waters cover an area including the Antarctic claim of over 15 million square kilometres or twice the land area of Australia.

Hence in marine and coastal terms we have the national (Commonwealth) Government managing the oceans and seven State and Territory governments largely in charge of coastal management (coastal land and coastal waters). Heading "up river", State and Territory Governments plan and manage catchments.

Given the uncoordinated relationships between Australian coastal management policy and both catchment management policy and Australia's Ocean Policy (Commonwealth of Australia, 1998a and b), the Commonwealth Government's commitment to a "National Coastal Policy" presents an opportunity to progress the integration of natural resources management for the first time in decades.

Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.

What can Australia learn from the Europeans about public participation? Article 6 of the Aarhus Convention and environmental impact statements

The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) is the only international convention that is exclusively devoted to public participation in environmental matters. Although it is European in origin, much of the detail of the Convention draws upon national environmental legislation, including aspects of the Australian environmental legal system. This article compares the public review provisions relating to environmental impact statements in Australia with Art 6 of the Convention governing "Public Participation in Decisions on Specific Activities". The article finds that much of the Australian laws with some exceptions satisfy the minimum requirements of public participation in Art 6.

Temporary protection and the refugee convention in Australia,Denmark, and Germany

This paper reports on a comparative study of temporary protection (TP) mechanisms in Australia and selected European jurisdictions. Specifically, it analyzes policy developments and trends in the use of TP mechanisms in Denmark, Germany, and Australia through a systematic examination of the evolution of “substitute protection” mechanisms; their implications for “effective protection” and their impacts on key stakeholders. The policy analyses are augmented by interviews and survey questionnaires with key NGO service providers in the three target jurisdictions. The paper argues that the traditional link between Refugee Convention protection and national territorial jurisdiction and responsibility is being undermined by extraterritorial processing and offshoring arrangements.