Pub Date : 2022-01-23DOI: 10.38127/uqlj.v40i3.6217
Rebecca Nelson
Australia leads the world in formally dedicating private land to environmental conservation, helping governments protect critical biodiversity without straining the public purse. In Queensland, the booming resources sector threatens this biodiversity protection, even beyond landholders’ well-recognised lack of veto power over mining approvals on their land. Three structural legal biases increase this vulnerability. To differing degrees, Queensland’s laws assume that mining affects only land under or adjoining mining tenures, overlooking scientifically likely longer-distance impacts (‘boundary bias’); they emphasise protecting built and commercial infrastructure over ecological assets, overlooking significant investment in species and ecosystems (‘infrastructure bias’); and they allow consideration of proposed mining in isolation, without considering cumulative impacts on ecological assets (‘singularity bias’). Fortunately, Queensland law and policy precedents suggest potential corrective reforms.
{"title":"Regulating Hidden Risks to Conservation Lands in Resource Rich Areas","authors":"Rebecca Nelson","doi":"10.38127/uqlj.v40i3.6217","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6217","url":null,"abstract":"Australia leads the world in formally dedicating private land to environmental conservation, helping governments protect critical biodiversity without straining the public purse. In Queensland, the booming resources sector threatens this biodiversity protection, even beyond landholders’ well-recognised lack of veto power over mining approvals on their land. Three structural legal biases increase this vulnerability. To differing degrees, Queensland’s laws assume that mining affects only land under or adjoining mining tenures, overlooking scientifically likely longer-distance impacts (‘boundary bias’); they emphasise protecting built and commercial infrastructure over ecological assets, overlooking significant investment in species and ecosystems (‘infrastructure bias’); and they allow consideration of proposed mining in isolation, without considering cumulative impacts on ecological assets (‘singularity bias’). Fortunately, Queensland law and policy precedents suggest potential corrective reforms.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44350883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-13DOI: 10.38127/uqlj.v40i3.6125
Narelle Bedford, Tony McAvoy SC, Lindsey Stevenson-Graf
This article provides a First Nations standpoint on climate change, informed by human rights law and legal education. It is co-authored by a Yuin woman who is a law academic, a Wirdi man who is a Queens Counsel, and a human rights law academic. The article argues that for any responses to climate change to be effective, they must be grounded in the perspectives, knowledge, and rights of First Nations peoples. The utility of human rights instruments to protect First Nation interests in a climate change milieu is explored at the international and domestic levels. Concomitantly, structural change must begin with the Indigenisation of legal education and the embedding of legal responses to climate change into the law curriculum. A holistic approach is necessary.
{"title":"First Nations Peoples, Climate Change, Human Rights and Legal Rights","authors":"Narelle Bedford, Tony McAvoy SC, Lindsey Stevenson-Graf","doi":"10.38127/uqlj.v40i3.6125","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6125","url":null,"abstract":"This article provides a First Nations standpoint on climate change, informed by human rights law and legal education. It is co-authored by a Yuin woman who is a law academic, a Wirdi man who is a Queens Counsel, and a human rights law academic. The article argues that for any responses to climate change to be effective, they must be grounded in the perspectives, knowledge, and rights of First Nations peoples. The utility of human rights instruments to protect First Nation interests in a climate change milieu is explored at the international and domestic levels. Concomitantly, structural change must begin with the Indigenisation of legal education and the embedding of legal responses to climate change into the law curriculum. A holistic approach is necessary. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45972454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-01DOI: 10.38127/uqlj.v40i3.6103
Monica M. Taylor
This article addresses the impact of the climate crisis on the mental health of young people in the context of legal education. It reviews the evidence on youth mental health regarding the climate crisis and applies it to what is already known about law student well-being. Drawing on theories of learning design, the article considers a range of pedagogical strategies that law schools can use to engage students who are committed to action on climate change through law. A case study, the Climate Justice Initiative at The University of Queensland School of Law, is presented as one example of what is possible. This article emphasises the significance of a partnership approach to student engagement and contends that this may yield benefits especially in the context of climate change-related legal work. Despite the negative psychological impact of the climate crisis on law students, it concludes that there are practical activities that law schools can and should initiate to support student well-being.
{"title":"Climate Crisis, Legal Education and Law Student Well-Being","authors":"Monica M. Taylor","doi":"10.38127/uqlj.v40i3.6103","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6103","url":null,"abstract":"This article addresses the impact of the climate crisis on the mental health of young people in the context of legal education. It reviews the evidence on youth mental health regarding the climate crisis and applies it to what is already known about law student well-being. Drawing on theories of learning design, the article considers a range of pedagogical strategies that law schools can use to engage students who are committed to action on climate change through law. A case study, the Climate Justice Initiative at The University of Queensland School of Law, is presented as one example of what is possible. This article emphasises the significance of a partnership approach to student engagement and contends that this may yield benefits especially in the context of climate change-related legal work. Despite the negative psychological impact of the climate crisis on law students, it concludes that there are practical activities that law schools can and should initiate to support student well-being. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45474339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-01DOI: 10.38127/uqlj.v40i3.6105
Danielle Ireland-Piper, Nick James
It is customary in an introduction for guest editors to explain the theme of the special issue and introduce the authors. While we intend to do both of these things, we also want to explain why we chose to undertake this project and address and acknowledge some omissions.
{"title":"Why We Did This, What's Included, and What We Missed","authors":"Danielle Ireland-Piper, Nick James","doi":"10.38127/uqlj.v40i3.6105","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6105","url":null,"abstract":"It is customary in an introduction for guest editors to explain the theme of the special issue and introduce the authors. While we intend to do both of these things, we also want to explain why we chose to undertake this project and address and acknowledge some omissions. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44776290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.38127/uqlj.v40i3.6047
Nicole Graham
First Nations analyses, climate science, social science and legal research indicate the significant role of private law in facilitating the conditions of climate change. Private law is a contingent feature of planetary health because its key concepts and institutions concentrate the legal rights to capital — the goods of life — in the private sphere. Private entitlements can act as shields against collective interests. Reforming law to address the climate crisis involves greater regulation of private interests to pursue the global goal of sustaining organised human societies, and thus addressing conflict between individual freedoms and collective exigencies. Reform depends on a differently educated generation of legal thinkers and practitioners.
{"title":"Teaching Private Law in a Climate Crisis","authors":"Nicole Graham","doi":"10.38127/uqlj.v40i3.6047","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6047","url":null,"abstract":"First Nations analyses, climate science, social science and legal research indicate the significant role of private law in facilitating the conditions of climate change. Private law is a contingent feature of planetary health because its key concepts and institutions concentrate the legal rights to capital — the goods of life — in the private sphere. Private entitlements can act as shields against collective interests. Reforming law to address the climate crisis involves greater regulation of private interests to pursue the global goal of sustaining organised human societies, and thus addressing conflict between individual freedoms and collective exigencies. Reform depends on a differently educated generation of legal thinkers and practitioners. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48332018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.38127/uqlj.v40i3.6043
W. Bonython
Tort law presents doctrinal barriers to plaintiffs seeking remedies for climate change harms in common law jurisdictions. However, litigants are likely to persist in pursuing tortious causes of action in the absence of persuasive policy and regulatory alternatives. Ongoing litigation in Smith v Fonterra Co-operative Group Ltd in New Zealand and Sharma v Minister for Environment in Australia highlights tensions between torts doctrine and climate change litigation in both countries. Regardless of its ultimate outcome, that litigation provides a valuable opportunity to integrate theoretical questions about the legitimacy of judicial lawmaking, and intersectional critical legal perspectives, into the teaching of torts.
{"title":"Tort Law and Climate Change","authors":"W. Bonython","doi":"10.38127/uqlj.v40i3.6043","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6043","url":null,"abstract":"Tort law presents doctrinal barriers to plaintiffs seeking remedies for climate change harms in common law jurisdictions. However, litigants are likely to persist in pursuing tortious causes of action in the absence of persuasive policy and regulatory alternatives. Ongoing litigation in Smith v Fonterra Co-operative Group Ltd in New Zealand and Sharma v Minister for Environment in Australia highlights tensions between torts doctrine and climate change litigation in both countries. Regardless of its ultimate outcome, that litigation provides a valuable opportunity to integrate theoretical questions about the legitimacy of judicial lawmaking, and intersectional critical legal perspectives, into the teaching of torts. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46631726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.38127/uqlj.v40i3.6045
Margaret A Young
Climate change is a global problem. This characterisation has major consequences for international law, domestic law and legal education. Drawing on legal developments, scholarship and pedagogy, this article has three main claims. First, it argues that lawyers dealing with climate change require proficiency across different areas of law, not just the law that seeks to limit greenhouse gas emissions. Secondly, to better understand how these areas of law fit together, and how they should fit together, the article points to relevant theories, including ideas relating to fragmentation and regime interaction within international law. Thirdly, the article examines ways in which legal education can encourage ethical and moral evaluations as well as strategic awareness, especially to ensure that legal action to address climate change does not perpetuate inequalities and injustice within the community of states. Legal education and law have important roles in mitigating climate change and in fostering a sensibility that recognises the unequal burdens between and within countries. In training the arbiters of global destiny, today’s law schools must continue to critique the law’s relationship with modern production and consumption patterns.
{"title":"Climate Change and Law","authors":"Margaret A Young","doi":"10.38127/uqlj.v40i3.6045","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6045","url":null,"abstract":"Climate change is a global problem. This characterisation has major consequences for international law, domestic law and legal education. Drawing on legal developments, scholarship and pedagogy, this article has three main claims. First, it argues that lawyers dealing with climate change require proficiency across different areas of law, not just the law that seeks to limit greenhouse gas emissions. Secondly, to better understand how these areas of law fit together, and how they should fit together, the article points to relevant theories, including ideas relating to fragmentation and regime interaction within international law. Thirdly, the article examines ways in which legal education can encourage ethical and moral evaluations as well as strategic awareness, especially to ensure that legal action to address climate change does not perpetuate inequalities and injustice within the community of states. Legal education and law have important roles in mitigating climate change and in fostering a sensibility that recognises the unequal burdens between and within countries. In training the arbiters of global destiny, today’s law schools must continue to critique the law’s relationship with modern production and consumption patterns. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43699027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-07DOI: 10.38127/uqlj.v40i3.6033
J. Crowe
Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one’s part to combat climate change; (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do; (3) in any event, the duty to do one’s share to combat climate change still applies, even if it is ultimately futile; and (4) this is because not doing one’s share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome.
{"title":"'It Makes No Difference What We Do'","authors":"J. Crowe","doi":"10.38127/uqlj.v40i3.6033","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6033","url":null,"abstract":"\u0000 \u0000 \u0000Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one’s part to combat climate change; (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do; (3) in any event, the duty to do one’s share to combat climate change still applies, even if it is ultimately futile; and (4) this is because not doing one’s share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43572429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-23DOI: 10.38127/uqlj.v40i2.5777
L. Aitken
To realise that there is no Court in Australia with unlimited jurisdiction is at one stroke to recognise the continuing importance of Justice Leeming’s standard work, and the relevance of this second edition. The ‘autochthonous expedient’, as Sir Owen Dixon named it, has much to answer for: it leads inexorably to a bifurcated system of state and federal courts, which has many toils and snares for the unwary. To compound the problem, the state courts enjoy a large amount of ‘invested’ federal jurisdiction, which means that on many occasions they exercise it without appreciating the fact that they have done so.
{"title":"Authority to Decide","authors":"L. Aitken","doi":"10.38127/uqlj.v40i2.5777","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5777","url":null,"abstract":"\u0000 \u0000 \u0000To realise that there is no Court in Australia with unlimited jurisdiction is at one stroke to recognise the continuing importance of Justice Leeming’s standard work, and the relevance of this second edition. The ‘autochthonous expedient’, as Sir Owen Dixon named it, has much to answer for: it leads inexorably to a bifurcated system of state and federal courts, which has many toils and snares for the unwary. To compound the problem, the state courts enjoy a large amount of ‘invested’ federal jurisdiction, which means that on many occasions they exercise it without appreciating the fact that they have done so. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"113 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41256089","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-29DOI: 10.38127/uqlj.v40i2.5721
Rebekah E. McWhirter
The European Convention on Human Rights has given rise to the most extensive and influential case law of any human rights jurisdiction, and the inclusion of an express infectious diseases exception to the right to liberty suggests that its jurisprudence is likely to provide the best available guidance to states on the circumstances in which such measures may be justifiable and lawful. However, this article argues that the principles developed to date are limited in their applicability to the current crisis, and are insufficient for determining the appropriate balance between public health and the right to liberty when seeking to control the spread of a large-scale, highly infectious disease.
{"title":"The Right to Liberty in a Pandemic","authors":"Rebekah E. McWhirter","doi":"10.38127/uqlj.v40i2.5721","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5721","url":null,"abstract":"\u0000 \u0000 \u0000The European Convention on Human Rights has given rise to the most extensive and influential case law of any human rights jurisdiction, and the inclusion of an express infectious diseases exception to the right to liberty suggests that its jurisprudence is likely to provide the best available guidance to states on the circumstances in which such measures may be justifiable and lawful. However, this article argues that the principles developed to date are limited in their applicability to the current crisis, and are insufficient for determining the appropriate balance between public health and the right to liberty when seeking to control the spread of a large-scale, highly infectious disease. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42693746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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