A new legal avenue for pricing GHG emissions? To trade or to tax?

In a September 2010 media release the Prime Minister of Australia presented the terms of reference for the newly established Multi-Party Climate Change Committee. Although the Committee is charged with considering climate change mitigation measures in general, specifically the Committee must consider an appropriate mechanism for the establishment of a carbon price. The purpose of this article is to provide an overview of the mechanisms to be considered by the Climate Change Committee, including the use of emissions trading and carbon levies in other jurisdictions. This article argues that for any effective investigation of a carbon price for Australia to occur, a thorough knowledge of other jurisdictions’ methods for carbon pricing is essential.

Submission to the Legal Affairs and Community Safety Committee - Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012

This submission addresses the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012 which has as its objectives (1) the introduction of a Boot Camp Order as an option instead of detention for young offenders and (2) the removal of the option of court referred youth justice conferencing for young offenders. As members of the QUT Faculty of Law Centre for Crime and Justice we welcome the invitation to participate in the discussion of these issues which are critically important to the Queensland community at large but especially to our young people.

Defining and describing what we do : doctrinal legal research

The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

International tax cooperation in the Post-GFC era

Over the last five years we have observed the fallout from the global financial crisis (GFC). International cooperation and jointly adopted policies have dominated many of the solutions to the problems which have arisen. Initially, many nations in response to the GFC, implemented a two pronged short term solution by undertaking fiscal intervention and delivering rescue packages aimed at first, bailing out financial institutions and second, preventing or minimising the impact of a recession. Both programs involved large amounts of domestic spending. It was difficult in early 2007 to foresee the reduction that nations were about the face in domestic revenue collected. Five years on, not only have the first line effects of the GFC reduced the revenue raised by governments around the world, but the consequential costs associated with the rescue packages have also depleted domestic revenue bases. The response by stakeholders has been to attempt to secure domestic revenue bases through fiscally sustainable measures. Domestic sovereignty allows the levying of taxes as a nation chooses. However, rather than raise domestic taxes, revenue may also be increased by stemming the flow of income and capital to low and no-tax jurisdictions. The intervening five-year period since the GFC allows a unique insight into the response by nations and international organisations to tax evasion, tax avoidance and aggressive tax competition through the cross border flows of capital and the resulting affect that the GFC has had on international tax cooperation. By investigating the change in the international tax landscape over the last five years, which reveals the work done by stakeholders in developing fiscally responsible responses to the problems that have arisen, it may be possible to predict the trajectory of the international tax landscape over the next five years.

Legal issues related to Accountable-eHealth systems in Australia

Information privacy requirements of patients and information requirements of healthcare providers (HCP) are competing concerns. Reaching a balance between these requirements have proven difficult but is crucial for the success of eHealth systems. The traditional approaches to information management have been preventive measures which either allow or deny access to information. We believe that this approach is inappropriate for a domain such as healthcare. We contend that introducing information accountability (IA) to eHealth systems can reach the aforementioned balance without the need for rigid information control. IA is a fairly new concept to computer science, hence; there are no unambiguously accepted principles as yet. But the concept delivers promising advantages to information management in a robust manner. Accountable-eHealth (AeH) systems are eHealth systems which use IA principles as the measure for privacy and information management. AeH systems face three main impediments; technological, social and ethical and legal. In this paper, we present the AeH model and focus on the legal aspects of AeH systems in Australia. We investigate current legislation available in Australia regarding health information management and identify future legal requirements if AeH systems are to be implemented in Australia.

Legal, cultural and practical developments in responding to female genital mutilation : can an absolute human right emerge?

Female genital mutilation (FGM) is a cultural practice involving the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from smaller incisions, to removal of the clitoris and labia, and narrowing or even closing of the vagina. FGM predates and has no basis in the Koran, or any other religious text. Rather, it is a cultural tradition, particularly common in Islamic societies in regions of Africa, motivated by a patriarchal society’s desire to control female bodies and lives. The primary reason for this desire for control is to ensure virginity at marriage, thereby preserving family honour, within a patriarchal social structure where females’ value as persons is intrinsically connected to, and limited to, their worth as virgin brides. Recent efforts at legal prohibition and practical eradication in a growing number of African nations mark a significant turning point in how societies treat females. This shift in cultural power has been catalysed by a concern for female health, but it has also been motivated by an impulse to promote the human rights of girls and women. Although FGM remains widely practiced and there is much progress yet to be made before its eradication, the rights-based approach which has grown in strength embodies a marked shift in cultural power which reflects progress in women’s and children’s rights in the Western world, but which is now being applied in a different cultural context. This chapter reviews the nature of FGM, its prevalence, and health consequences. It discusses recent legal, cultural and practical developments, especially in African nations. Finally, this chapter raises the possibility that an absolute human right against FGM may emerge.

Making a case for social impact assessment in urban development : social impacts and legal disputes in Queensland, Australia

Urban land use planning and policy decisions are often contested, with the multiple stakeholders (business, developers, residents, policymakers and the wider community) frequently holding opposing viewpoints about the issues and best solution. In recent years, however, the participatory process of social impact assessment (SIA) has received significant attention as a way to mitigate conflict, facilitating negotiation and conflict resolution. This paper examines how social impacts have informed development appeals in Australia, focussing on ten cases from the Queensland Planning and Environment Court (QPEC). Half are appeals from community members (typically neighbours) wanting to oppose approvals and half from organisations appealing against City Councils’ decisions to deny their development applications. While legal challenges do not necessarily reflect attitudes and practices, they provide a means to begin to assess how social impacts (although not often explicitly defined as such) inform development related disputes. Based on the nature and outcomes of 10 QPEC cases, we argue that many legal cases could have been avoided if SIA had been undertaken appropriately. First, the issues in each case are clearly social, incorporating impacts on amenity, the character of an area, the needs of different social groups, perceptions of risk and a range of other social issues. Second, the outcomes and recommendations from each case, such as negotiating agreements, modifying plans and accommodating community concerns would have been equally served thorough SIA. Our argument is that engagement at an early stage, utilising SIA, could have likely achieved the same result in a less adversarial and much less expensive and time-consuming environment than a legal case.

Educational accountability tests, social and legal inclusion approaches to discrimination for students with disability : a national case study from Australia

The UN Convention on the Rights of Persons with Disability (CRPD) promotes equal and full participation by children in education. Equity of educational access for all students, including students with disability, free from discrimination, is the first stated national goal of Australian education (MCEETYA 2008). Australian federal disability discrimination law, the Disability Discrimination Act 1992 (DDA), follows the Convention, with the federal Disability Standards for Education 2005 (DSE) enacting specific requirements for education. This article discusses equity of processes for inclusion of students with disability in Australian educational accountability testing, including international tests in which many countries participate. The conclusion drawn is that equitable inclusion of students with disability in current Australian educational accountability testing in not occurring from a social perspective and is not in principle compliant with law. However, given the reluctance of courts to intervene in education matters and the uncertainty of an outcome in any court consideration, the discussion shows that equitable inclusion in accountability systems is available through policy change rather than expensive, and possibly unsuccessful, legal challenges.

The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Heritage language for young Chinese Australian adults in urban Australia : Capital and habitus in fields

Studies of Heritage Language learners‟ commitment and their ethnic identity are increasing, yet there is scant sociological research addressing topics relating to Chinese Heritage Language learners. Drawing on Bourdieu‟s signature notions of „habitus‟, „capital‟, and „field‟, this mixed methods study investigates two problems: (1) impacts of “Chineseness” and accessible resources on Chinese Heritage Language proficiency of young Chinese Australian adults in urban Australia; and (2) the meanings of Chinese Heritage Language to these young people.

Does legal heritage affect obesity? The channel of motor vehicle dependence

We find a robust relationship between motor vehicle ownership, its interaction with legal heritage and obesity in OECD countries. Our estimates indicate that an increase of 100 motor vehicles per thousand residents is associated with about a 6% point increase in obesity in common law countries, whereas it has a much smaller or insignificant impact in civil law countries. These relations hold whether we examine trend data and simple correlations, or conduct cross-section or panel data regression analysis. Our results suggest that obesity rises with motor vehicle ownership in countries following a common law tradition where individual liberty is encouraged, whereas the link is small or statistically non-existent in countries with a civil law background where the rights of the individual tend to be circumscribed by the power of the state.

Legal issues in the design and implementation of environmental offset and environmental trading frameworks

The Queensland Government released its new Environmental Offset Policy in July 2008. This policy creates a set of overarching principles which are to be incorporated into existing environmental offset policy. This article is the final article in a set of three interrelated articles discussing the operation and implementation of environmental offsets in Queensland. The first article discusses the Environmental Offsets Discussion Paper and the existing environmental offset requirements. No significant changes have been made to these existing offset requirements under the new Environmental Offset Policy. This article also touches briefly on the legal issues associated with design and implementation of environmental offset and trading frameworks. The second article considered the compatibility of different land tenure arrangements in Queensland against the requirements for the creation and trade of environmental offsets. The third article being the present article, discusses the application of the new Environmental Offset Policy while also analysing the legal issues associated with environmental offsets in further detail.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

A study of Beijing‘s competitive advantage as an emergent media capital

The development of creative industries has been connected to urban development since the end of the 20th century. However, the causality of why creative industries always cluster and develop in certain cities hasn‘t been adequately demonstrated, especially as to how various resources grow, interact and nurture the creative capacity of the locality. Therefore it is vital to observe how the local institutional environment nurtures creative industries and how creative industries consequently change the environment in order to better address the connection between creative industries and localities. In Beijing, the relocation of CCTV, BTV and Phoenix to Chaoyang District raises the possibility of a new era for Chinese media, one in which the stodginess of propaganda content will give way to exciting new forms and genres. The mixing of media companies in an open commercial environment (away from the political power district of Xicheng) holds the promise of more freedom of expression and, ultimately, to a =media capital‘ (Curtin, 2003). These are the dreams of many media practitioners in Beijing. But just how realistic are their expectations? This study adopts the concept of =media capital‘ to demonstrate how participants, including state-media organisations, private media companies and international media conglomerates, are seeking out space and networks to survive in Beijing. Drawing on policy analysis, interviews and case studies, this study illustrates how different agents meet, confront and adapt in Beijing. This study identifies factors responsible for the media industries clustering in China, and argues that Beijing is very likely to be the next Chinese media capital, after enough accumulation and development, although as a lower tier version compared to other media capitals in the world. This study contributes to Curtin‘s =media capital‘ concept, develops his interpretation on the relationship of media industries and the government, and suggests that the influence over the government of media companies and professionals should be acknowledged. Therefore, empirically, this study assists media practitioners in understanding how the Chinese government perceives media industries and, consequently, how media industries are operated in China. The study also reveals that despite the government‘s aspirations, China‘s media industries are still greatly constrained by institutional obstacles. Hence Beijing really needs to speed up its pace on the path of media reform, abandon the old mindset and create more room for creativity. Policy-makers in China should keep in mind that the only choice left to them is to further the reform.