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Macquarie University Law Society magazine

Edition 2, 2018 (Volume 24)

State of Nature

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2 | The Brief

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State of Nature

CONTENTS

14 18 20 6 7 8

War with nature: The use of wildlife to fuel conflict in Central Africa Zara Bending and Dr Shireen Daft (staff contributors) Human right to a clean and healthy environment Joanna Chapko Illegal Poaching: The Hunt for Effective Legislative Reform Tessia Tan IN CONTEXT Foreword for ‘The Brief’ Special Environmental Law Edition The Hon. Justice Brian J Preston What's New in the Law? Cynthia Constantin [Social Justice Corner] Ten Years of Closing the Gap Gypsy Bryant

FEATURES

24 26 29

Righting Tangible and Intangible Wrongs George Psihoyios Losing Ground: How the Law is Failing to Solve Our Land Clearing Crisis Morgan Houston The Economic Contributions of Deforestation: The Case of the Indonesian Archipelagos Anjali Nadaradjane ADDITIONALS

10 32 36 37

[A Brief Conversation] Judith Preston Swatilekha Ahmed [Avenues of Your Law Degree] Environmental Law Swatilekha Ahmed [Clerkship Experience] Arda Reznikas, Gilbert+Tobin [A Postcard from Abroad} Exchange at the University of Copenhagen Raveena Randhawa

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D Editor’s Welcome Swatilekha Ahmed Editor in Chief

earest Reader, We are already halfway through 2018 – you blink and you miss it! This year seems an appropriate time to step back and reflect on environmental legal issues. While I am a black thumb at anything related to gardening, and must admit that school camping was possibly the worst part of my Australian high school experience, I enjoy stepping outside every day and revelling in the natural world around me. My interest in environmental law stems from a deep-seated belief that law does not exist in a vacuum, and as one of the most invasive species on Earth, we have a duty to explore and analyse the ways in which environmental issues and legal regulation intersect. This is why this edition is titled ‘State of Nature’ – it is focussed on human interaction with our natural world through a legal perspective. In this edition, we are very lucky to have Chief Justice Brian Preston of the Land and Environment Court contribute a special foreword on the importance of exploring legal issues in the realm of environmental law. We have a must-read interview with Professor Judith Preston on her illustrious career in environmental

law as both a professional and an academic, and you cannot miss the interview with two talented and passionate Macquarie law students who have explored their interest in environmental law in diverse ways. You can read our staff contribution by Zara Bending and Dr Shireen Daft on the use of wildlife resources in the context of conflict, and articles by our student writers on the complex issue of land clearing, the right to a healthy environment, poaching legislation and regulation, and moral jurisprudence in climate change law. You can also read about a very enjoyable exchange experience, a succinct recap of what you need to know about recent legal developments, and a review of inequalities in Indigenous communities. Lastly, I’d like to thank my team of hard-working sub-editors who have all turned out perfected versions of all the pieces in record time, my hardworking Deputy Editor Emalee, our Publications Director, Daniel, and the 2017 Editor-in-Chief Nick for his ongoing support. It takes a village to produce a Brief edition, and I wouldn’t have it any other way. Enjoy!

Events Competitions Tort Law Moot Second semester Junior Client Interview Second semester Witness Examination Second semester

4 | The Brief

Careers Options with Law Fair 16 August Diplomacy and the Law, in collaboration with MUNS

28 August PLT Seminars with ANU and College of Law

Early-mid September

Events

Education

Social Justice Speakers Night 2 4 September

Welcome Back BBQ August SOS 2 August Law Ball 12 October

Social Justice

Wellbeing Seminar August

Trivia Night 5 October Mental Health Month October


O President’s Welcome Leon Warren President Macquarie University Law Society

n behalf of MULS, it is my pleasure to welcome you to the second edition of The Brief for 2018. I commend our Editor-in-Chief, contributors and designer for their work in creating yet another edition that pushes boundaries and challenges the law as we know it. As a law student majoring in environmental management, I am particularly excited to present this special ‘green’ edition and I trust that you will find this edition as engaging and inspiring as I have. There is no doubt that environmental issues are amongst the greatest and most difficult challenges facing the law today. Finding an appropriate balance between public and private interests, particularly in development and conservation, is perhaps one of the most fundamental and enduring dilemmas of law and consequently requires an examination extending beyond the scope of traditional legal boundaries. I praise the editors

Edition 2, Volume 24, May 2018

Editor in Chief Swatilekha Ahmed Deputy Editor Emalee Walker-Philcox Director of Publications Daniel Lim Designer Nathan Li Writers (in alphabetical order) Anjali Nadaradjane, Cynthia Constantin, George Psihoyios, Gypsy Bryant, Joanna Chapko, Morgan Houston, Raveena Randhawa, Dr Shireen Daft, Tessia Tan, Zara Bending

and contributors of this edition for examining these questions from such a diverse range of perspectives – from land clearing and poaching to human rights and resources in war, I am confident that you will find something in this edition that will inspire you to think bigger. I also extend thanks to Chief Justice Brian Preston and Mrs Judith Preston for their contributions to this edition, the field of environmental law generally, and for their ongoing support of Macquarie Law. With the semester now in full swing, MULS has a variety of upcoming events and initiatives to keep you active, social and engaged. With May marking the beginning of the Careers season and plenty of other MULS initiatives on the horizon, I encourage you to be as involved as possible and make the most of the other side of your law degree. Don’t forget to check the MULS calendar, Facebook page and newsletter for the latest updates on all things MULS.

Subeditors Adelaide Falzon, Emalee WalkerPhilcox, Isabella He, James Woodward, Jessica Haddad, Jessica Yao, Nerissa Puth, Sapna Goundan Editorial Review Ilija Vickovich Macquarie University, Sydney Daniel Lim, Director (Publications) Macquarie University Law Society The Brief would like to thank Chief Justice Brian Preston for contributing a foreword on the topic of environmental law, Judith Preston for her valuable time, Shireen Daft and Zara Bending for their staff contribution, and Ashley Avci and Maxwell Edwards for their valuable insights.

Images Shutterstock unless otherwise stated. The Brief’s print edition is published three times a year by the Macquarie University Law Society, Sydney, Australia. View our website at thebrief.muls.org. Disclaimer: All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

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Foreword for ‘The Brief’ Special Environmental Law Edition  The Hon. Justice Brian J Preston Chief Judge of the Land and Environment Court of NSW

T

his special environmental law edition of The Brief is topical and timely. The life sources of the planet – land, air and water – are being depleted, degraded and damaged. By nearly all indicators, the environmental quality of the Earth is decreasing, at an exponential rate. This is specifically evident in the biosphere and the atmosphere. In the biosphere, deforestation and other land clearing is accelerating. The World Resources Institute recorded that the global tree cover loss reached a record 29.7 million hectares in 2016. That is 81, 370 ha per day, 3,390 ha per hour, 56. 5 ha per minute or almost a hectare a second. Deforestation, including by forest fires, is primarily due to agriculture, logging and mining. Such deforestation is having devastating effects on biodiversity. A 2014 study found that current rates of species extinction are around 1000 times the likely background rate of extinction. Estimates of the number of species on Earth vary, ranging between 2 million to 100 million different species. If 0.01% of all species will become extinct each year, this means between 200 to 10,000 species are becoming extinct each year. In the atmosphere, the concentration of greenhouse gases is increasing. The World Meteorological Organisation recorded that the concentration of carbon dioxide in the atmosphere reached 403.3 parts per million in 2016, the highest level in 800,000 years. The causes of the increase in greenhouse gas concentrations are particularly population growth, intensified agricultural practices, increased land use and deforestation, industrialisation and associated energy use from fossil fuels. The rapidly increasing greenhouse gas concentrations are likely to initiate unprecedented changes in 6 | The Brief

climate systems, leading to severe ecological, social and economic disruptions. This downward spiral in the ecological health and integrity of the biosphere and the atmosphere reveals deficiencies in law and governance. Good governance requires clear and effective laws to ensure ecological sustainability as well as effective implementation and enforcement of the laws. The current environmental crisis demonstrates that we lack both effective laws and effective implementation and enforcement. The authors of the articles in this special issue highlight these failures in law and governance. Most address the problems in the biosphere. Anjali Nadaradjane explores deforestation in Indonesia, caused by clearing for agriculture, logging and forest fires. Morgan Houston examines land clearing in Queensland and New South Wales. Tessia Tan focuses on illegal poaching of wildlife. Zara Bending and Dr Shireen Daft canvas the use of wildlife resources in times of war. A common theme in their respective analyses is the failure of the relevant laws and the implementation and enforcement of the laws. Some advocate reform of the laws to partially address the problems identified. George Psihoyios examines a problem in the atmosphere, notably the adequacy and morality of the current climate change law framework. Joanna Chapko addresses a cross cutting issue: the human right to a clean and healthy environment. All of the authors provide useful insights into different failures of law and governance and the devastating consequences for the planet and its people. The articles make a valuable contribution to a much needed conversation about the current ecological and climate crisis.


What’s new in the law?

 Cynthia Constantin

No More Wasting Your Hard-Earned Cash! New Laws on ‘Ticket Scalping’ and Gift Cards The NSW parliament recently passed the Fair Trading Amendment (Ticket Scalping and Gift Cards) Act 2017 which is yet to commence. The legislation provides expiry extensions on gift cards sold in NSW and the prevention on the resale of tickets for a large profit by ticketing sites for entertainment and sporting events. It is estimated that NSW consumers lose up to $60 million a year when gift cards expire with unused value left on them. The new law now prevents the sale of gift cards with an expiry date of less than 3 years after the date of sale. Additionally, it is an offence to sell gift cards which have administrative fees that reduce the redeemable value of the gift cards. Businesses who do not comply with these provisions are subject to a maximum penalty of 50 penalty units. This new law also prevents ticket scalping. This is where buyers obtain tickets and resell them for a huge mark-up price. Section 58G prevents a person who purchased a ticket to re sell the ticket for more than the acquisition cost, therefore preventing the making of profits from a ticket. The original acquisition cost is the original supply cost plus the transaction cost (for example like a booking fee).

Unfair Dismissal claims for contractors; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 The Full Bench of the Fair Work Commission recently held that a person employed under an outer-limit contract could bring a claim for unfair dismissal. To make a claim for unfair dismissal, there must be a dismissal on the “employer’s initiative”. Section 386(2)(a) of the Fair Work Act 2009 (Cth) stipulates that a person is not dismissed if they have been employed under a contract for a fixed period of time and the employment has terminated at the end of that period. An outer-limit contract is different to a fixed term contract in the sense that an outer limit contract provides more flexibility as it can be terminated earlier than the end date. On the other hand, a fixed term contract is for a specified period and usually only ends early if there has been a breach of the contract. The Full Bench of the Fair Work Commission clarified the difference between outer-limit contracts and fixed term contracts, noting the possibility for people employed under outer-limit contracts to be able to bring claims for unfair dismissal. The Full Bench stated that consideration of the entire employment relationship is important for unfair dismissal claims, not just looking at the current employment contract.

Xiao v R (2018) NSWCCA 4 In this case, a managing director of a mining company pleaded guilty early on two counts of insider trading. Overturning previous authority, the NSW Court of Appeal held that when sentencing an offender for a Commonwealth offence, the utilitarian value of an early guilty plea can be taken into account.

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Social Justice Corner

Ten Years of Closing the Gap

W

 Gypsy Bryant

hen children hurt one another, we teach them to apologise and never do it again. It may take some time for children to understand this concept but it should be simple enough for adults to comprehend. Unfortunately, Kevin Rudd’s 361-word apology to the Stolen Generations in 2008 didn’t resonate strongly enough with the government to resource any truly effective and sustainable solutions to the myriad of social, economic and political inequalities that persist for Indigenous people today. One such policy to target these inequalities was the Closing the Gap Statement of Intent and the Closing the Gap Strategy. This movement heralded the concept of eliminating the ‘gap’ between Indigenous and non-Indigenous Australians by targeting significant issues. These include those involving high rates of chronic disease and mortality; low education and training results; poor housing and job opportunities - the strategy appeared as the perfect structure to tear down systemic discrimination and move forward. There has been some success with Closing the Gap. Namely the decrease in child mortality by 33% from 1998, a rise in Year 12 attainment and improvements regarding deaths as a result of chronic disease. However, on the 10th anniversary of the policy an Australian Human Rights Commission report illustrated how the strategy was set out to fail. This was due to the lack of opportunities granted to Indigenous

8 | The Brief

people in making decisions about their own futures despite the government’s explicit focus on partnership. Similarly, the report also referred to frameworks and plans, such as the 2015 Implementation Plan for the National Aboriginal and Torres Strait Islander Health Plan, that collapsed soon after their commencement mostly due to a lack of funding. It is important to note that it will continue to take some time to witness further compelling results through the new frameworks. This is simply the nature of the issue at hand. Despite this, it is difficult to ignore the government’s continuation of certain discriminatory practices, such as the disproportionate level of Indigenous children in out-of-home care allegedly increasing rates of incarceration. The question of how to best support Indigenous people, especially those in remote communities, is still left unanswered. Perhaps it will remain as such until the Australian government becomes more proactively involved in Indigenous affairs. It is difficult to listen to politicians like Malcolm Turnbull say, ‘the solution to closing the gap rests within the imagination, ingenuity, passion and drive of Indigenous people themselves’ - when access to political autonomy for Indigenous people is scarce. The Australian government can no longer assume they know what Aboriginal and Torres Strait Islander people need when the next step towards a solution – being it collaboration or selfdetermination – is entirely possible.


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A Brief Conversation

Speaking with Judith Preston  Swatilekha Ahmed

I

t was a great pleasure to have the opportunity to speak with Judith Preston; an academic at the Macquarie Law School, and an honorary Fellow at the Centre of Environmental Law (CEL) at Macquarie University. Her impressive and admirable experiences include working with the Northern Land Council in Darwin from 1982-84, and working to establish the first public interest environmental legal centre in 1984. She has worked with prominent Sydney law firms ranging from commercial law, to contract law and personal injury matters. Judith and I had an interesting conversation in which I asked her about her career trajectory, the current research she’s engaged in, and her opinions on some of the most important issues and moments in Australian environmental law. This is an abridged version of our conversation for the purposes of the print edition. If you would like to read the complete version, please visit our website at thebrief.muls.org!

Tell us about your career and your interest in

beanbags in class rather than at desks. This was an

environmental law and land rights, and your the

exciting period in environmental law. NSW had just

specialisation in public interest environmental law

passed the Environmental Planning and Assessment

which lead to the setting up of the Environmental

Act 1979 (‘EPA Act’) modelled on the National

Defenders Office NSW in 1983.

Environmental Protection Act 1969 (NEPA) of the

My career has involved advocacy for Aboriginal land

USA. NEPA was enacted to improve public decision-

rights, commercial litigation and academic work.

making by ensuring that environmental factors are

My interest in environmental law was piqued by my

considered equally with social and economic factors.

enrolment in an environmental law course taught

This is achieved through development assessment

by Emeritus Professor Ben Boer at Macquarie

tools such as Environmental Impact Statements

University Law School in 1980. Professor Boer’s

as well as developing and implementing a national

teaching approach and content was inspiring and

environmental policy. Both NEPA and the NSW

involved discussions in ‘buzz groups’ sitting on

EPA Act encouraged public participation. The NSW

10 | The Brief


Act introduced open access to the courts which was a

to have experience in many areas of LEC work.

ground-breaking procedural step for public interest

These programmes also allow students to have

environmental litigation.

access to judicial and legal practitioners and

Following the tradition of Macquarie Law

experts who practice in the Court through seminars

School at that time, I undertook an opportunity

and mentoring. Students have opportunities to

to work with the Northern Land Council (NLC);

experience ‘live client’ initiatives including the Tree

an organisation established in 1973 to assist the

Disputes Helpdesk (the Helpdesk) and the Self

Woodward Royal Commission investigating the

Represented Litigants pro bono scheme.

process of Aboriginal land claims. As a lawyer employed with the NLC, my primary role was to

Can you expand on the ‘live client’ initiative and

assist claimants, particularly female claimants,

the work students are exposed to through this

in the preparation and conducting of land claim

opportunity?

applications under the Aboriginal Land Rights (NT)

Students are able to sit with me to interview and

Act 1976 before the Aboriginal Land Commissioner.

assist clients within the Helpdesk, which is part of a

The land claim hearings were held on site of the

broader clinical programme available for Macquarie

area claimed, so travelling and new skill sets

law students. A pro bono scheme to advise and

particularly around four-wheel driving and camping

represent self-represented litigants appearing in the

were quickly acquired. Other facets of the work

Land and Environment Court has also commenced

involved extensive off-road travel around the Top

as a pilot programme on 6 April 2018.

End of the Northern Territory to take instructions

The Helpdesk is a procedural support service,

and carry out legal work for Aboriginal Traditional

and we work on assisting the public with disputes

owners. I was privileged to take part in this process

between neighbours over property and personal

and to meet and assist some Aboriginal claimants

injury claims arising out of trees and hedges in

to successfully claim their traditional lands back, as

the Land and Environment Court. The relevant

well as working with some prominent lawyers and

legislation, the Trees (Disputes Between Neighbours)

anthropologists.

Act 2006 (NSW), was drafted in such a way to allow

Part of the way through the contract period

applications and hearing to be done without legal

with the NLC, Professor Boer requested that

representation but people can find this difficult. The

I assist with establishing the Environmental

Helpdesk gives clients information and assistance

Defenders Office (EDO NSW) as the first public

on procedure, evidence needed for applications and

interest environmental law centre in NSW which I

preparation for hearing. The Helpdesk encourages

agreed to do.

the clients to think about how to solve the problem *****

rather than considering litigation as the first step.

I feel honoured to have played a key role in the

Sometimes clients haven’t thought about all the

establishment of EDO NSW in undertaking

costs, stress, and the fact they have to live with their

important work in defending the environment,

neighbours after the hearing!

protecting human rights and upholding the rule

This is one of the other advantages of the

of environmental law especially with respect to

Helpdesk for students - the opportunity to see

access to environmental justice along with other

that legal problems can be one of several issues

environmental law centres around Australia.

facing people. Tree and hedge disputes can be

*****

representative of a number of issues in conflict

Academic work has allowed me to explore many

between neighbours. Students face people with a

more areas of legal research, particularly cutting-

number of challenges in their lives such as English

edge areas of environmental law such as biocultural

as second language, financial stresses as well as

heritage protection and climate change law, as

older people who are unwell or do not have access

well as collaborate and learn from practitioners

to computers. Matters dealt with by the Helpdesk

in other complimentary disciplines. I have been

give students a small snapshot of issues that might

fortunate to develop some clinical legal programmes

come up in practice and they have the opportunity

centred around the Land and Environmental

to interact with clients and assist them.

Court (LEC) which allows Macquarie law students

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Are you currently engaged in any further

and imperative to the healthy functioning of a

research into environmental law?

democracy. Legislation which was the subject of

I am currently engaged in completing a Doctor of

Brown v Tasmania is symptomatic of governance

Philosophy in environmental law at the University

that seeks to stifle rights of free speech, public

of Western Sydney. My thesis is exploring the

assembly and peaceful protest in the guise of

way in which Indigenous Knowledge (IK) can

protecting business interests and should not be

be more effectively embedded as a compulsory

supported in law. This could be described as SLAPP

knowledge source in environmental decision-

(Strategic Lawsuits Against Public Participation)

making. The important values and benefits of IK

style legislation designed to have a ‘chilling effect’

have been known to Aboriginal custodians but it

on protests against democratic processes related to

has been relatively recently discovered by Western

governance ,decision-making and actions.

researchers to have environmental benefits.

Courts in Australia are generally conservative

These include addressing biodiversity losses and

rather than activist, confining their role to

combatting adverse climate change impacts through

interpreting the law rather than making new law,

mitigation and adaptation. My thesis aims to

which has had a positive result for democratic rights

consider how the legal framework can accommodate

in the case of Brown v Tasmania. I am in support

the benefits of IK to environmental decision-making

of an active judiciary who seek to develop law in

but also make contributions to social and economic

upholding principles such as democratic freedoms,

benefits on a pathway to self-determination.

human rights, and environment protection. Environmental jurisprudence in NSW particularly

Can you expand on that?

has benefitted from the judges using international

Not every decision takes into consideration

developments in environmental law to extend and

Aboriginal interests. It is increasingly difficult for

enhance rights for the environment and its human

some members of the Aboriginal community to have

and non-human inhabitants.

the specialised knowledge that is needed to support applications for land rights. A legal presumption

There is a strong history of protest relating to

that there will be Aboriginal interests relevant to

environmental protection in Australia. Has the

proposed development would be beneficial, and

face of public participation changed?

proponents should be obliged to seek to find out the

Active dissent including rights of free speech,

identity of the Aboriginal custodians, the knowledge

assembly and protest have been exercised in

they possess (if that is not secret or sacred) and

Australia since the European explorers and English

ways in which the knowledge should be applied

colonists came to our shores to assert control over

appropriately. The thesis spends time investigating

the land and Aboriginal owners by declaring that

the type and range of Aboriginal knowledge. This

the legal doctrines of ‘terra nullius’ and ‘reception [of

incorporates its applications and the reasons that

English law]’ applied.

Indigenous knowledge was only relatively recently

The Wave Hill station walk-off in 1966 was

discovered to be much more useful than previously

a public objection by Aboriginal workers about

thought, from Western perspectives. When you look

Western land ownership, control, and management,

at issues such as native title or self-determination,

which was one of the catalysts for the land

some legislation is very good at defining Aboriginal

rights movement in Australia. Public protests by

interests but when it comes to the detail, duties of

Aboriginal people had started almost thirty years

decision makers are often discretionary and difficult

earlier about a range of important issues facing

to enforce.

Aboriginal people including the implication of Australia Day celebrations. The Green Bans of the

What are the implications of the recent High

1970s led by Jack Mundey on behalf of the Builders

Court decision of Brown v Tasmania in terms

Laborers Federation (BLF) was spawned by an

of the right of citizens to voice opposition to

unlikely alliance between a citizen group from an

government decisions about controversial

affluent suburb of Hunters Hill with the left-leaning

developments?

BLF, to prevent construction work on the site of

The actions and voices of dissent are integral

12 | The Brief

Kelly’s Bush.


The BLF used this protest method effectively to

What would be the benefits of having specific

protect the Rocks (parts of which were later included

legislation to protect the right to a healthy

in a World Heritage site) and the Royal Botanic

environment?

Gardens (a site of national cultural significance).

It would provide another range of opportunities

Alliances like this are not uncommon in citizen

to apply for a different set of legal remedies.

action against inappropriate environmental

Many countries around the world have such

decision-making and developments.

environmentally based human rights such as in the

The composition of environmental protestors has changed over the years to include rural

European Union, or in South America. There are a number of successful cases globally

communities. Examples of this are the Bulga

where people have dealt with issues such as

Milbrodale Progress Association who took legal

inappropriate siting of power plants and polluting

action to stop the expansion of the Warkworth mine

effects of heavy industries near residential areas,

in the Hunter Valley and the youthful litigants in

schools and recreational waters. Remedies that

the landmark climate case of Juliana v US who

litigants have obtained include injunctions and

were joined by Dr James Hansen, an eminent

compensatory damages. Legislated rights of this

scientist who was appointed guardian for future

kind is probably unlikely in Australia in the near

generations in the case.

future, given public conservatism and challenges in

More recently, it is common to see prominent

amending the Federal Constitution.

citizens, actors and musicians such as Leonardo DiCaprio, Angelina Jolie, Bono and Chris Martin

What advice would you give to students wanting

lending their fame to environmental causes.

a career in environmental law?

Using modern technology, actor Shailene Woodley

1. Get out into the environment to truly

documented the police actions in response to

understand how parts of nature are connected

peaceful protests against construction of the Dakota

and why your contribution is vital to the

Pipeline through sacred First Nations’ lands and her

environment’s survival;

subsequent arrest via livestreaming which promotes awareness and support for issues like human and environmental rights.

2. Enrol in environmental law electives and/or undertaking a complementary degree in the natural or human sciences; 3. Get involved with the Macquarie Centre for

What do you think about the right to a healthy environment? Australia is one of fifteen nations that does not recognise this as a human right. What are your thoughts on this?

Environmental Law as a volunteer; 4. Undertake clinical placement units preferably that are related to environmental law; 5. Go to environmental conferences and seminars,

Any legislated rights to protect the environment

read widely and keep up to date with new

and human rights arising out of the use of the

developments;

environment is desirable. I would welcome amending the Constitution or enacting specific

6. Join organisations like the Environmental and Planning Law Association NSW and the Young

legislation to enshrine these rights. However, on

Lawyers Environmental Law Committee;

past performance, it is unlikely that this will be

7. Network with members of the environmental

done in the near future, at Federal level at least. I

law community; and

acknowledge states and territories have made more

8. Develop knowledge and skills in Alternative

progress on legislative support for these issues such

Dispute Resolution approaches and work on

as constitutional acknowledgement in NSW and

understanding different perspectives.

human rights and climate change laws in Victoria. In a related issue, I support the Uluru Statement

I really enjoyed my conversation with Judith - it was

from the Heart for Constitutional Reform for Australia

wonderful to hear from one of the of the pioneers in

to provide an effective First Nations voice in the

the field of environmental law. The Brief would like

Australian Constitution to address misrecognition and

to thank Judith for her time!

mal-recognition as well as the political, economic and social invisibility of Australia’s First Peoples.

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War with Nature:

The Use of Wildlife to Fuel Conflict in Central Africa  Zara Bending and Dr Shireen Daft

‘In central Africa, wildlife trade has become an important means of financing armed conflicts. Armed groups on both sides of conflicts, with the means and access to valuable wildlife, frequently take advantage of their situations to reap financial benefits.’

D

uring the tumultuous time in the early 2000s when the world, and most particularly the African continent was plagued with unrest and civil conflict, many scholars turned their attention to the relationship between resources and conflict. This relationship remains contentious, especially the extent to which resources can motivate or drive conflict. Less contentious is the assertion that resources can fuel and exacerbate existing conflicts. ‘Blood diamonds’ that infamously fuelled conflicts in Sierra Leone, Angola, and Liberia represent the classic example of a conflict resource; with gold, coltan, tin, tungsten, copper, opium, marijuana, cocaine, heroin, coffee, and cocoa also recognised as commodities contributing to conflict across the globe. However, with the exception of timber, very little attention has been given to the exploitation of living resources as a category of conflict resource until very recently. In recent years, the United Nations Security Council and some commentators have begun to recognise that poaching and trafficking of wildlife and wildlife products by armed groups are perpetuating ongoing conflict in central Africa. ‘Blood ivory’ (also referred to as ‘conflict ivory’) not only emerged in popular rhetoric and academic discourse, but also became the subject of Security Council resolutions on the Democratic Republic of Congo (DRC) and the Central African Republic (CAR) in relation to armed groups including: the Lord’s Resistance Army (LRA), Janjaweed, Mai Mai Morgan, Mai Mai Luc, and Séléka. Areas affected include: Virunga National Park, Maiko National Park, Garamba National Park and the Okapi Wildlife Reserve in the DRC; and Chinko, Dzanga-Ndoki,

14 | The Brief

Bamingui-Bangoran and Manovo-Gounda St Floris national parks in the CAR. Indeed, wildlife and wildlife products exploited by these groups share characteristics that typify conflict resources. Conflict Resources According to Global Witness, ‘[c]onflict resources are natural resources whose systematic exploitation and trade in a context of conflict contribute to, benefit from or result in the commission of serious violations of human rights, violations of international humanitarian law or violations amounting to crimes under international law.’ The most iconic example of a conflict resource, and the resource which has most defined the development of law and policy in this area is that of diamonds. The trade in conflict diamonds began in the early 1990s, first employed by Jonas Savimbi’s National Union for the Total Independence of Angola (UNITA) in Angola, and echoed in Sierra Leone by the Revolutionary United Front (RUF). Rebel armies in the DRC also began to use diamonds to fuel the conflict as did Guinea, Liberia and Côte d’Ivoire as well. Most recently, the issue has emerged again, with significant concerns about the trafficking of conflict diamonds from the Central African Republic. However diamonds are just one of many natural resources that are exploited by armed groups during conflict as a chief revenue source to continue the fighting. The intended end uses of conflict resources are not the only defining characteristic of these natural resources. To understand what makes a natural resource a potential ‘conflict resource’


a number of characteristics pertaining to the qualities of the resource itself (for example, ‘lootability’ and ‘traceability’) coupled with modes of access, and geographical context are relevant. Most notably, Le Billon’s classic definition encompasses: ‘the control, exploitation, trade, taxation or protection of natural resources, which contributes to, or benefits from, the context of armed conflict.’In articulating the relationship between resources and conflict, Le Billon explains that conflict resources exist where the ‘resource sector rewards belligerents, making the escalation and prolongation of violent conflict more likely’. Wildlife as a Conflict Resource Capitalising on the momentum of the ‘blood diamond effect’, the illegal wildlife trade was raised before the Security Council several times over the course of 2013, culminating in two landmark resolutions adopted by the United Nations Security Council in January 2014. The resolutions designated trade in ‘wildlife as well as wildlife products’ as a criterion to be considered when imposing Security Council sanctions in the DRC (pursuant to res. 2136) and the CAR (pursuant to res. 2134). The resolutions were primarily designed to target known armed rebel groups. Both resolutions authorise sanctions in the form of travel bans and the freezing of funds, other financial assets and economic resources against targeted individuals engaged in poaching and trafficking as well as individuals or entities supporting their activities. The resolutions also provide mechanisms for identifying and monitoring poachers and traffickers through investigative and reporting tools.

'He Was Full of Hope' by Gillie and Marc (gillieandmarc.com)

Under Article 24 of the UN Charter, the Security Council is vested with the ‘primary responsibility for the maintenance of international peace and security’. The Security Council has been vested with considerable political and legal clout to discharge this responsibility, and under the auspices of Chapter VII of the UN Charter has the unique authority to make decisions that are binding on all Member States. The Security Council, in exercising the power asserted by Article 24, has the authority to define its own jurisdiction. Under Chapter VII, the Security Council is authorised to undertake coercive measures if the Council determines that there exists a ‘threat to the peace, breach of the peace, or act of aggression’ under Article 39. Recognising the role of the illegal trade in wildlife was an ‘unprecedented step’ and is reflective of a slowly broadening interpretation of what Edition 2, 2018 | 15


constitutes a ‘threat to the peace’. Particularly remarkable was that while the Security Council was predominantly concerned with the impact of the conflict on the human population of Central Africa in these resolutions, it also condemned the ‘devastation of natural heritage’, reflecting an eco-sensitive perspective. Ivory became the first wildlife commodity recognised by the UN as contributing to conflict and has been classified as a conflict resource in academic scholarship. Garamba National Park (located in the north-east of Orientale Province in the DRC, sharing a border with South Sudan) is often cited as a case study. In the 1960s, the park boasted 22,000 elephants, however in 2016 it was found to have only 1,100-1,400 elephants remaining. While the role of the LRA in Garamba has eclipsed much of the media coverage, the Group of Experts on the Democratic Republic of Congo actually found that the Congolese military were involved to a greater extent, with soldiers working closely with local poachers by providing weaponry and munitions in exchange for ivory and/or bushmeat. Rhino horns as conflict resources? The increasing use of term ‘blood horn’ invites a critique of whether the current state of rhinoceros poaching qualifies rhino horn as a conflict resource. The current rhino poaching crisis (which began in 2008 with the resurgence of Vietnam as a key country of import) sees the majority of incidents carried out in South Africa which are by and largely driven by the promise of lucrative criminal enterprise for corrupt government officials and transnational crime syndicates, rather than rebels or insurgents. Indeed, while African rhinoceros horn satisfies many of the innate attributes of a conflict resource, it unlikely to currently classify as a ‘conflict resource’ in the same vein as elephant ivory. That is not to say that relevant actors in the region did not profit from rhino poaching during the earlier wars in southern Africa. In fact, in the 1970s and 1980s it was found that groups including UNITA and Mozambican National Resistance (RENAMO) were involved in ivory and horn poaching, passing their spoils through South African military intelligence. 16 | The Brief

But what about the rhinos that used to roam central Africa? The International Rhino Foundation Executive Director, Susie Ellis, has stressed a positive correlation between conflict and poaching in areas where rhinos are now possibly or regionally extinct. What’s more, it was the instability in central Africa and cycle of incursions that prevented much needed ongoing work and research, and so the precise nature of the relationship is unlikely to reveal itself. However, based on the information at hand, we conclude that it is likely that rhinoceros horn was exploited for conflict in central Africa. This conclusion aligns with confirmation that poaching during periods of conflict in significant parts of the region had first affected rhinos before progressing to elephants. The death of Sudan, Earth’s last male Northern White Rhinoceros (Ceratotherium simum cottoni) in March 2018 offers a sobering reminder as the last of his kind in Garamba National Park was sighted in 2006, a drastic drop from over 2000 in the 1960s. Results and Reflections Recognising wildlife as a conflict resource in specific situations allows the international security architecture to contribute to the response currently being generated by conservationists and those focused on the criminal enterprise elements of wildlife trafficking. This places attention on the consequences of poaching, not only on wildlife and local ecosystems, but also on the humanitarian crises that are fuelled by such resources. However, care must be taken not to supplant efforts designed to protect species with an overtly anthropocentric response. Also concerning is an increasing militarisation of the narrative of conservation. Language about the ‘war on poaching’ is becoming more prevalent, accompanied by a normalised militarised response to poachers, and the emergence of ‘poacher-as-terrorist’ archetypes. The pervasiveness of these kinds of narratives have led some scholars to observe a shift from ‘fortress conservation and war for biodiversity’ towards ‘war by conservation ’wherein conservation, security and counter insurgency are more closely integrated, whereby global security constitutes an important underlying driver while biodiversity conservation is of secondary importance.


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Edition 2, 2018 | 17


The Right to a Safe and Healthy Environment:

Where can we find it?  Joanna Chapko

Introduction Discourse surrounding the environment flourished in the second half of the twentieth century. As a result, a plethora of rights designed to regulate the state of the environment through policymaking are visible in domestic contexts and internationally today. In March 2018, John Knox – the United Nations Special Rapporteur on Human Rights and the Environment – called on the international community to recognise the ‘human right to a safe and healthy environment’ in a global instrument. This article will explore the origins of this right in the international context followed by an examination of its occurrence in the regional and national context. The International Context Human rights signal public commitments within the international community. The nation state is the primary mechanism that enforces each human right. The rights provide legal empowerment through substantive and/ or procedural measures. These rights generally involve a claim to universality on all people. When the first international human rights instruments were drafted, there was insufficient concern to warrant the inclusion of a human right to a safe and healthy environment. First18 | The Brief

generation rights were concerned with noninterference with individuals and second-generation rights were collective rights for the benefit of society. Environmental rights can be considered part of a third generation of human rights that are designed to respond to changing circumstances within the international community. In 1962, American conservationist Rachel Carson composed the first written suggestion to specify the right to a safe and healthy environment in her book ‘Silent Spring.’ Despite this, there is no internationally accepted definition of what constitutes a safe and healthy environment. For this reason, the human right to a safe and healthy environment is inferred from other recognised rights, namely the rights to life and health. First, the non-binding 1972 Stockholm Declaration affirms that people as ‘both creature[s] and moulder[s of their] environment’ have a ‘fundamental right….and a solemn responsibility to protect and improve the environment for present and future generations.’ This is the symbolic basis for the right to a safe and healthy environment. This is supplemented by the 1992 Rio Declaration on Environment and Development, and United Nations General Assembly Resolution 45/94, the latter of which stipulates that ‘environmental protection is a precondition to the enjoyment of universally guaranteed human rights.’ The effectiveness of each of these


instruments is contested; however, they form the basis of a regional and national understanding of the right to a safe and healthy environment. The Regional Context Despite the international legal basis for the right, a human right to a safe and healthy environment is more visible in the regional context. This is because the international legal order is highly decentralised and reliant on the voluntary compliance of nation states. According to Canadian environmental lawyer David Boyd, the regional implementation of a right to safe and healthy environment has strengthened national policy as it prevents governments from ‘rolling back’ effective laws made by their predecessors. In Africa, Article 16 of the African Charter is the basis of the human right to a safe and healthy environment. This is evident in treaty commission decisions and national constitutional mandates in sub-Saharan Africa. In Asia, enforcement of the right is recognised in national constitutional courts, most notably in India. In Europe, the European Court of Human Rights, the Aarhus Convention, and national constitutional mandates, primarily in Eastern Europe, govern the enforcement of the right. Finally, in Latin America, Articles 10 and 11 of the Additional (San Salvador) Protocol to the American Convention on Human Rights expressly recognise rights to the environment. This is inferred as a step towards recognising an express right to a safe and healthy environment. Therefore, at the regional level, regional treaties or national constitutions embody the right to a safe and healthy environment. According to David Boyd’s research, over 100 Federal Constitutions have guaranteed a right to a safe and healthy environment since 1992. However, constitutional recognition primarily occurs in developing nations, which use the right as a shield against corporations, and in former Eastern Bloc nations who seek to embrace ‘environmental democracy’ to solidify their membership in the European Union. This reflects the balance between policy-making and concern for the state of the environment that occurs in the regional context. Australia’s national policymaking mirrors this.

The National Context In Australia, the recognition of a human right to a safe and healthy environment is untenable at the federal level. The Federal Constitution does not include a Bill of Rights that would recognise a safe and healthy environment. If the right was recognised in a binding international instrument to which Australia is a state party it may be enforceable in the federal context through the Environment Protection and Biodiversity Act 1999 (Cth) – Australia’s central piece of environmental legislation. The Australian Panel of Experts on Environmental Law recommended in late 2017 that recognition of the right to a ‘clean and healthy environment’ must occur in order for Australia to have a successful environmental democracy. ‘Clean’ is used interchangeably with ‘safe.’ This may be possible at the state level where human rights charters can exist. As such, Victoria, the Australian Capital Territory and Queensland (with a soon-to-be developed human rights charter) can take steps to recognise a safe and healthy environment as a human right. Conclusion The international, regional and national context contains variations of the right to a safe and healthy environment. The right has: an absence of a definition or binding international instrument, a slew of interpretations in the regional context, and it struggles to find grounding in our national context. Like all human rights, its greatest triumph is the aspiration to achieve the betterment and protection of a certain feature of society. However, as is usually the case, the implementation of an abstract concept such as rights always falls short of expectations. Despite this, even if the right to a safe and healthy environment appears enigmatic and paradoxical, it deserves credence in policymaking. The state of the environment is relative to the emphasis that decision makers place on protecting and enhancing it. A safe and healthy environment seems like a good place to start.

Edition 2, 2018 | 19


Illegal Poaching: On the Hunt for Effective Legislative Reform

ď € Tessia Tan

INTRODUCTION 7,700% - that is the rate by which illegal rhino hunting increased between 2007 and 2013. This unprecedented increase in illegal poaching represents an epidemic that pushes more and more animals to the brink of extinction. Illegal poaching, defined as the unlawful hunting or capturing of animals, is a pervasive issue with potential ramifications for biodiversity, ecological sustainability and ecological relations. Exacerbated by a growing illegal wildlife trade, dealing in rare commodities, illegal plant harvesting is increasing at an equally alarming rate. Thus, domestic and international law reform is necessary to preserve our finite natural wonders. 20 | The Brief


ILLEGAL WILDLIFE TRADE The multimillion-dollar animal byproducts industry is largely responsible for the prevalence of illegal poaching. With opportunists seeking to profit from the sale of luxury items including ivory, leather and pelts, trade regulations do little to minimise clandestine illegal trade. Historically, luxury brands have played a significant role in perpetuating illegal hunting due to the popularity of fur and leather garments. Although luxury fur fashion has become somewhat taboo, the use of animal byproducts is, nevertheless, experiencing resurgences. Similarly, private collectors engage in unlawful animal trafficking and “trophy hunting”. With the anonymity of the internet, the illegal wildlife trade consequently thrives in contravention of international treaty and customary law. Moreover, the clandestine nature with which illegal poaching still occurs means that many poachers employ illegal firearms. Increases in violent crime mean that local people are in just as much danger as the animals being hunted. Accordingly, anti-poaching enforcement and regulation of the illegal wildlife trade should be addressed simultaneously, as much of illegal poaching contributes directly to the illegal wildlife trade. ILLEGAL HARVESTING OF FLORA Endangered animals are also threatened by illegal plant harvesting, which destroys the habitats of countless species. Most notably, illegal logging to satisfy excessive demand for energy and paper in western consumerism has caused the systematic destruction of scores of orangutan rainforest habitats. Such threats to global biodiversity warrant our immediate attention, due to both the moral implications of such widespread loss of life and the potentially far-reaching consequences for local and global ecosystems, the climate, and the sustainability of our planet.

Similarly, many plant species used in traditional herbal medicines are also being harvested to the brink of ecological collapse. Since the sale of many of these herbal remedies is not technically unlawful, illegal harvesters operate virtually unencumbered by any regulation or law enforcement. New demand for herbal medicine in developed western states has further stimulated what was already a flourishing import/export trade of illegally harvested plants. Subsequently, as these herbal remedies are often harvested from protected areas, the wanton disregard of illegal harvesters has left many protected areas facing devastating deforestation and ecological collapse. Hence, illegal flora harvesting must also be considered to effectively regulate illegal poaching. RECREATIONAL HUNTING Additionally, many countries that fall victim to illegal poaching are those that allow recreational hunting. Since some wildlife hunting is permitted for the legitimate sale of food, ornaments and medicine, this opens the gates to the overexploitation of a multitude of species. As wildlife trade escalates to cater for increasing demand, hunting quickly becomes unsustainable. Research shows that legal hunting results in the deaths of tens of millions of animals each year. Justified by some as a necessary evil to manage ‘pest’ populations, research indicates that recreational hunting is neither an effective nor humane solution for managing animal populations. Rather, to their own detriment, underdeveloped countries that boast endemic exotic species legalise recreational hunting as a means of increasing tourism revenue. Indeed, while recreational hunting presents a short-term solution for stimulating otherwise small economies, it is ultimately an adversely unsustainable practice. Ultimately, the best we can do, short of these countries initiating their own domestic law reform, is to educate foreign tourists regarding the dire consequences of recreational hunting and push for ongoing international legal reform. Edition 2, 2018 | 21


INTERNATIONAL TREATIES AND REGULATING BODIES The Migratory Bird Treaty Act was the first international agreement for the protection of wildlife, effectively outlawing the trade of migratory birds for profit. While this instrument represented an initial step towards animal protection, its specificity meant it did little for the vast majority of effected species. In the 1960s, the implementation of the Convention on International Trade in Endangered Species (CITES) was the most comprehensive international instrument against illegal poaching and while it made great strides towards the protection of all endangered species, difficulties enforcing penalties across international jurisdictions has meant that illegal poaching still flourishes. Alternatively, international bodies such as the European Union play a fundamental role in promoting wildlife protection. Using its global influence, the European Union, in conjunction with the Council of Europe, ensures that the animal welfare agenda is considered within domestic legislation of all member states, as well as instituting numerous comprehensive inter-union animal welfare conventions in accordance with the Bern Convention. Other regulatory bodies such as the International Whaling Commission are responsible for ensuring the protection of specific species that face imminent extinction as a result of unsustainable commercial activity. The main shortcoming of all these regulatory efforts has been their failure to adequately enforce their provisions and penalties, particularly where they occur on private land. For example, although the ivory trade has been banned since 1989, its continued longevity has meant that many species of elephant and rhinoceros have been categorically decimated. The complete extinction of the Western Black Rhino represents a bleak reminder of what awaits all hunted species unless global regulation

22 | The Brief

can be improved. So how can we, as a society, better confront this global pandemic? On an individual level, donating to initiatives such as savetherhino.org will increase awareness and provide funding for anti-poaching organisations to combat this issue at its source. Likewise, demanding domestic law reform will spur legislators to prioritise this issue in their political agendas. As such, Australian legislators are only just beginning to realise that we can no longer leave the enforcement of animal welfare to regulatory bodies and non-profit organisations as they simply do not have the resources or authority to maintain compliance. Instead it has been suggested that police involvement would be an effective deterrent and enforcement mechanism for crimes against animal welfare. Accordingly, as criminalisation of animal hunting and cruelty will likely significantly impact the incidence of animal crime, we must consider strengthening the government’s ability to prosecute offenders in a domestic context. Internationally, as a member of an increasingly globalised society, we can encourage foreign domestic law reform, foster international cooperation and demand animal law reform and embargos on wildlife trade from our trade partners and allies. Additionally, a global enforcement framework will mitigate the jurisdictional difficulties that have weakened existing legislative efforts. CONCLUSION Illegal poaching is a complex global issue that cannot be effectively regulated without considering the prevalence of the illegal wildlife trade and legal recreational hunting. It is clear that enforcement measures must be made more effective, legislation more comprehensive, international cooperation encouraged, and awareness increased, before endangered species and biodiversity are lost forever.


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Edition 2, 2018 | 23


‘Righting Tangible and Intangible Wrongs’ An Attempt to Embed Moral Jurisprudence into Our Climate Law Framework  George Psihoyios

Y

ou would be forgiven for believing that society does not feel one iota of threat posed by the contemporaneous change in the Earth’s climate. Unfortunately for lawmakers and the political class, the scientific consensus has not reached a gleeful assessment, as the ramifications of anthropogenic climate change are not just a short-term future problem, but they are very much occurring right now. The dangerous biophysical impacts caused by climate change do not discriminate based on any social, geographic or economic qualifier. It is the opinion of this writer, that the current framework lacks a guiding environmental jurisprudence to encourage reform in civil litigation as it relates to climate-change related damages. The purpose of this article is to highlight the relevance of Kantian legal morality and solastalgia theory in championing the embedment of ‘unjust enrichment’, to bring relief for victims of climate change. Firstly, Immanuel Kant’s theory of legal morality is no different to jurisprudence as a philosophical discipline, in which all legal principles are built on. Kant’s brand of moral jurisprudence squarely aligns with deontology, 24 | The Brief

which is the normative ethical position that judges the morality of an action based on legally codified rules and duties. Central to the legal philosophy of Kant is the idea of the categorical imperative, defined in his 1785 piece ‘Groundwork of the Metaphysics of Morals’ as the evaluation of motivations for maxims of an action. Kantianism presents three formulations of the categorical imperative: ‘(I) universalisability of form, (II) respect of humanity as an end in itself, (III) harmonisation of individual maxims within a kingdom of ends’. In expanding on the meaning of these three formulations, Kantianism first calls on individuals to act according to a maxim which can be considered as a universal law. The second tenet of the categorical imperative implores people to engage in an action which they see as beneficial to humanity, irrespective of whether that action is self-afflicted or affects others. Finally, Kant’s metaphor of the universal kingdom of ends describes a society composed of rational beings that are capable of moral deliberation and advocates that individuals should modify their maxims to suit this universalist ideal. We now turn to the relevance of solastalgia, a recently coined term by the pioneering Australian


environmental sociologist, Glenn Albrecht as a principle that can be applicable as a form of harm in law. According to Khanna Sanjay in his analysis of Albrecht’s work: ‘Solastalgia describes a palpable sense of dislocation and loss that people feel when they perceive changes to their local environment as harmful’. Albrecht’s 2014 study in the West Australian rural community Newdegate was particularly interesting, by way of the fact that a nearby coal mine had been blamed for disrupting the local climate. The academic had paraphrased the opinion of one farmer, stating that: ‘Although seasonal rainfall was valued for its economic benefits, seasonal rainfall was also valued for bringing life and abundance to the landscape’. In a quintessential case between a community against a mining corporation and a consenting authority, Chief Justice Preston of the Land and Environment Court considered the neologism. In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited, Chief Justice Preston stated: ‘The Association submits that the resident evidence demonstrates that there has been a negative experience of the community to environmental change already, and that is Professor Albrecht’s concept of solastalgia.’ Despite it being federal government responsibility when it comes to climate change regulation, the New South Wales Land and Environment Court has provided precedent to positively consider solastalgia a form of climate change related harm. The final piece of this environmental jurisprudence is the practical result of its integration, namely the recognition of ‘unjust enrichment’ litigation as an operating principle of climate-change related tort. It is incontrovertible to argue against the relevance held by unjust enrichment as a principle of international law and to some extent, domestic law. Broadly in terms of domestic English tort, the principle of unjust enrichment is when a defendant has enriched itself at the expense of the plaintiff in the context of unfair circumstances. Unjust enrichment is also codified as a ‘general principle of international law’, achieved by way of Article 38 1(c) of the Statute of the International Court of Justice, which applies the general principles of law recognised by civilised nations i.e. case law. ADC v Hungary is

one of several landmark decisions enshrining the unjust enrichment principle between both a state and a private entity or another country entirely. Aura Weinbaum as the Executive Editor of the Pacific Rim Law & Policy Journal Association, is one of several pioneering academics advocating for small Pacific nations to take legal action in tort against major pollutants. Weinbaum argues that the Pacific nation Tuvalu, as a Small Island Developing State (SIDS), should utilise an unjust enrichment approach to recovering damages under the auspices of the International Court of Justice. However, suppose we were to apply the arguments made by Weinbaum on unjust enrichment into the Australian climate law framework context. Similar to the way in which the case management principles operate within the Uniform Civil Procedural Rules (UCPR), that is that legal proceedings must be “just, quick and cheap”, there is a three-step test that could be implanted in statute. Weinbaum from the Law of Restitution loosely paraphrased these three elements as being identified as: ‘1) an enrichment must accrue to the defendant, 2) the enrichment must occur at the expense of the plaintiff, and 3) the enrichment must be unjust’ Both Albrecht and Weinbaum echo Kant’s ideological vision that one must rise to the act of protecting society and its inhabitants. This is especially if the very tangible and intangible makeup of that social and biophysical structure is at risk. The adoption of this environmental moral jurisprudence, with unjust enrichment as its statutory and case law by-product, would be akin to the effect posed by the three core principles of case management. Such jurisprudence would also be the fusion of Kantian morality, that we must act for the greater good and solastalgia, as a harm that is susceptible to damages. Ultimately the argument and question that I am putting forward to you the reader, is that if we can ask the courts to act as justly, cheaply and fairly as possible to achieve righteousness, why can’t the same sentiment be applied to unjust enrichment and climate change? Is not the outcome of initiating an environmental moral jurisprudence the equivalent to a pursuit of absolute justice for affected plaintiffs and our ecosystem overall?

Edition 2, 2018 | 25


Losing Ground:

How the Law is Failing to Solve Our Land-Clearing Crisis  Morgan Houston

B

y 2030, 3 million hectares of untouched forest will have been demolished in eastern Australia. Queensland sees to the majority of land-clearing in Australia and is the only place in the developed world that has been put on the list of global deforestation fronts by the World Wildlife Fund International. With more than 1500 football fields worth of native woodland being cleared every day in Queensland, Australia’s land-clearing crisis is the main cause of species extinction. Three quarters of Australia’s threatened flora and fauna are listed with habitat loss as their main threat. Land-clearing in Queensland drives sediment pollution into the Great Barrier Reef, adding to its vulnerability. Importantly, land-clearing is intensifying climate change with Australia’s greenhouse gas emissions caused by deforestation sharply rising. This crisis is steered by the inadequacy of Australia’s environmental laws and the refusal of the government to enforce existing restrictions. Law is the tool to control the worsening landclearing, but the government is failing to use it. For example, strict laws passed in Queensland in 2004 led to the lowest rate of land-clearing 26 | The Brief

by 2010. However, in 2012, the breaking of an election promise by Liberal National party’s Campbell Newman saw the removal of these laws and resulting intensification of landclearing rates. Similarly, in NSW in 2016, the Coalition government announced its intention to repeal three key pieces of legislation that protected native flora and fauna with the effect of making land-clearing easier. These changes were put in place in August of 2017 and raise significant concern for the relatively small amount of vegetation remaining in NSW. The clearing of vegetation on rural land in NSW is legislated by the Local Land Services Act 2013 and the Biodiversity Conservation Act 2016. Land-clearing in urban areas and land zoning for environmental protection is legislated by the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. The right to clear the landscape is an attitude that has been deeply embedded in Australian farming culture over many decades. This belief is reinforced by laws and government policy. Dr Leonie Seabrook, a landscape ecologist from the University of Queensland, states that the perception in the 1980s was that there were


endless forests and the positive view of the development of wild areas led to land-clearing being a “social norm.” Farmers that disobey this widespread perception today face harsh treatment and social isolation from other farmers based on fear and defensiveness. Behind this army of bulldozers and landclearers is a pervasive network of lawmakers and enforcement agencies. The debate surrounding this issue is seen through the situation at a property called Olive Vale in Queensland. In 2015, its owners were approved to clear 31000 hectares by the Queensland government. After clearing 1700 hectares, the bulldozing was halted by federal government investigators following concerns about the effects on threatened species and the Great Barrier Reef. Under the federal Environmental Protection and Biodiversity Conservation Act 1999 (EPBC), actions must be referred to the federal government if they’re likely to impact “matters of national environmental significance.” The department warned the project would impact on 17 protected species, including Australia’s rarest bird, the buff-breasted button-quail. However, significant pro-clearing interests began to take force and despite the property being situated in a catchment prone to causing sediment run-off into the Great Barrier Reef, the Cairns Post reported that Federal Liberal MP for Cairns, Warren Entsch, believed such concerns were unfounded. Entsch had once owned Olive Vale and proposed the environment conservationist groups had no scientific basis and were exaggerating the situation in order to raise funds. Despite the federal government’s claims that it expected the landholder to refer the clearing for assessment

within weeks, no referral was witnessed, and it was further found that the owners had ignored the need for approval and gone ahead with a further clearing of 100 hectares of land. After repeated government claims that it had secured the promise of the owners to refer the action, attacks on environmentalists through media were made again. According to the public register of application, no request for approval has ever been made. This lack of transparency in Olive Vale highlights the inadequacy of laws and refusal to enforce any such restrictions by government departments. This weakening of land-clearing laws is widespread. The World Wildlife Fund found that 86% of properties that plan to or have cleared more than 1 hectare of land are destroying either an endangered ecosystem, the habitat of an endangered species or are occurring inside a catchment that flows into the Great Barrier Reef. These factors appear to meet the criteria of issues likely to impact matters of national environmental significance that warrant referral under the EPBC. However, according to this referral list, 99.92% of these properties are going ahead without federal approval. This failure to implement laws is greatly impacting Australian fauna. Under the EPBC Act, the federal government has the capacity to identify land that is critical to the survival of a species and place it on the national critical habitat register. Whilst it is an offence to knowingly damage habitat on this list, these provisions apply only to commonwealth land. This significantly reduces the strength of this register to protect the habitat of numerous species found on state or private-owned land. Edition 2, 2018 | 27


Importantly, there has been no listing of any critical habitat on the register since 2005 despite the fact that habitat loss is a main driver of species extinction. The Department of the Environment and Energy claims threatened species habitat does not need to be listed on the register to activate the environmental assessment provisions of the EPBC Act as there are recovery plans and conservation advices. However, this claim further highlights the inadequacy and lack of transparency of environmental laws as the approval process for developments allows ministers to approve land-clearing at their discretion. According to conservationists, if the critical habitat register was used more regularly and compulsorily, Australian wildlife would be granted inalienable protection for their survival. The tools exist to combat the land-clearing crisis, but they are not being implemented. In 2016, alongside the Biodiversity Conservation Act, the government introduced codes that exempted land-clearing in a variety of circumstances from normal development assessment requirements. After a challenge filed by the Nature Conservation Council, these laws that make land-clearing in NSW easier have been recently ruled invalid by the NSW Land

28 | The Brief

and Environment Court as a result of a lack of approval from the environment minister before their implementation. However, the government had the option to reintroduce these codes. The self-assessible codes allowed farmers to decide whether an area could be cleared and would lead to an increase of 45% in clearing. The government swiftly reinstated the codes on the 10th of March with David Witherdin, the CEO of Local Land Services, stating that the remade codes gave landowners the “tools and certainty they need.” However, this reinstatement disregards the advice of leading scientists and leaves 99% of koala habitat on private land exposed to clearing, suggesting that enforced regulations are the “tools and certainty” that Australia needs. David Morris, the chief executive of the Environmental Defenders’ Office NSW, has declared this “a legal and policy low point for NSW.” The vulnerability of the normal development assessment requirement emphasises the inadequacy of the laws needed to protect Australian biodiversity. With less than 50% of Australia’s original wilderness still in existence, Australia needs accountability and transparency in the implementation of its environmental laws and regulations.


The Economic Contributions of

Deforestation: The Case of the Indonesian Archipelagos

S

ď € Anjali Nadaradjane

ituated on an archipelago of almost 18,000 islands that span across the Pacific and Indian Oceans, Indonesian forests are a treasure chest. Approximately 10-17% of the world’s known plants, animals and birds inhabit the thick tropical greenery of these forests. Unfortunately, the negative impacts of deforestation including Indonesia’s forest fires and how its role in fuelling the palm oil industry have pervaded the media. It shrouds the multiple economic benefits that deforestation brings for impoverished farmers and the Indigenous Dayaks of Sumatra and Kalimantan. This article will address the economic contributions of deforestation to provide a more balanced and clarified light on the issue.

Forest fires and the Dayaks The Indigenous Dayaks are a forest-dependent cultural group often comprised of impoverished and traditional farmers. This culture is accustomed to using slash-and-burn techniques to clear away land for farming. This technique has been administered for hundreds of years and holds great significance for the traditional culture of the Dayaks. They retain the belief that the fire serves as an effective way of achieving an abundant harvest. This process serves as a significant source of income and a vital resource for the Dayaks. The fire produces nutrientrich ash, encourages natural afforestation and enables the Dayaks to plant dry rice, rambutan, durian and other endemic fruits of the area. Edition 2, 2018 | 29


Furthermore, the burnt land is used to grow rattan gardens, fruit gardens, rubber fields, mixed rice and crop fields. Unfortunately, the economic livelihood of the Dayaks is being challenged and impinged upon by laws seeking to reduce the uncontrollable forest fires that are causing haze pollution across the Indo-Pacific. Indonesia’s deforestation slashand-burn techniques contravene ASEAN’s 2002 Transboundary Haze Pollution Agreement. The agreement was instigated in response to vast forest fires which permeated the region from 1997-98 causing a blanket of haze to descend across neighbouring countries including Brunei Darussalam, Malaysia, Singapore and Thailand. In reality, the haze pollution arises from the abundance of gold and coal extractors who have invaded the area and are using similar burn techniques to hack and export the forests. In 2014, the government passed legislation to ban forest fires under the Law on Plantation Act. This extended to the Dayak’s forest burning techniques even when the uncontrollable nature of the fires are not related to their activities, but to those of commercial companies. As a result, the Dayaks are facing fines and imprisonment by the military if they do not cease their slashand-burn techniques. This has undermined their autonomy to manage their own lands, their economic livelihoods and their right to retain their traditional lifestyle. Moreover, this legislation contradicts Article 26 of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) which states that: “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use.”

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Unfortunately, many are ignorant of the fact that the Dayak’s slash-and-burn techniques are carefully supervised. A variety of factors including the size of the land, the direction of the wind and the timing are taken into account. Palm oil industry and deforestation The palm oil industry has been closely linked to deforestation and habitat degradation as the clearing away of land and forests is necessary for the development of the oil palm plantations. However, NGOs including Friends of the Earth, World Wildlife Fund and Greenpeace have actively denounced the expansion of the palm oil industry due to its link to deforestation. The arguments asserted by these environmental bodies include that Indonesia’s tropical forests are suffering due to the scattering of palm oil plantations across the land. Activists from advanced countries are quick to denounce deforestation in developing countries such as Indonesia, yet they fail to consider that nine-tenths of all deforestation occurred prior to 1950. For civilisation to progress, people have cleared vast amounts of forested land to provide themselves with shelter, food, warmth and a multitude of objects. For Indonesia, the exportation of natural resources are significantly derived from deforestation. Additionally, a London-based consulting firm Europe Economics conducted a study that analysed palm oil’s land efficiency and cost-efficiency in order to glean its beneficial impacts for the economy. The results indicated that palm oil imports add approximately $39 billion to GDP growth globally and creates 2.9 million jobs worldwide. The World Wildlife Fund notes that palm oil


trees produce high-quality oils used for cooking, food products, detergents, cosmetics and to a smaller extent biofuels. Palm oil also happens to be a very productive crop. The demand and global production of palm oil are increasing exponentially. Indonesia has used palm oil as a major vehicle for ameliorating rural socioeconomic circumstances and providing a reliable income for the impoverished. In Indonesia alone, the palm oil industry sector provides approximately 4 million jobs to smallholders and labourers. Smallholder plots of palm oil plantations account for about 40% of the total crop area. In addition, across both Malaysia and Indonesia, 11 million more people are indirectly dependent on the industry. In 2008, Indonesia produced over 18 million tonnes of palm oil and by 2020, Indonesia is estimated to produce almost 60 million tonnes. As a food staple, palm oil will become a significant resource in promoting food security. Unfortunately, environmental activists disagreeing with the approach have undertaken smear campaigns against the industry to discourage consumers. However, a boycott has detrimental consequences as it serves only to exacerbate land and resource requirements. Unlike palm oil, other alternatives such as soybean production require significantly more land as well as inputs in fertilisers, pesticides, water and fuel. Compared to the approximately 12-19 million hectares of land permitted for palm oil, approximately 95 million hectares would need to be allocated to soybean production. Furthermore, palm oil is popular for its lower price. Switching to less reliable substitutes would be more expensive and would detrimentally impact manufacturers and consumers. Finally,

as the palm oil industry comprises a viable and significant growth industry for Indonesia, it would slash jobs significantly. This would primarily affect small farmers whose lack of alternative employment may motivate them to undertake less preferable activities such as logging, often in an illegal capacity. Balancing economic and environmental considerations Deforestation presents a multitude of economic benefits in Indonesia. It is a significant part of their economy as deforestation provides an economic livelihood for impoverished farmers, small landowners and indigenous groups. However, with the rise of haze pollution in Indonesia which impinges upon the air quality of neighbouring countries in ASEAN and concerns over the mass deforestation arising from palm oil growth, a balanced approach needs to be reached. Regarding the Dayaks, one possible technique is to educate the local people on nonpollutive methods to clear the land. However, as the slash-and-burn techniques are traditional to their culture, the government is better placed to instigate harsher moratoriums for commercial companies to regulate their behaviour. In regard to palm oil, to achieve more sustainable palm oil production on the market, palm oil farmers and companies should consider engaging more with the Roundtable on Sustainable Palm Oil (RSPO), which aims to develop, which aims to develop, implement, verify and monitor credible global standards for the entire supply chain of sustainable palm oil.

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Avenues of Your Law Degree

Where can Environmental Law Take You? An interview with Macquarie students, Ashley Avci and Maxwell Edwards  Swatilekha Ahmed

I

t was a sunny Sunday afternoon on which I had the pleasure to have a conversation with two very passionate and intelligent Macquarie law students on their interests and advocacy work in environmental law. Ashley Avci is currently studying a combined Bachelor of Laws and a Bachelor of Environment at Macquarie, and has a demonstrated interest in Animal Law. She has worked on researching and drafting legislation in her time working with a Member of NSW Parliament and has co-founded Shark Conservation Australia, a not-for-profit organisation focused on education, advocacy and law reform for the conservation and protection of shark species. She is also the Project Officer for the NSW Young Lawyers Animal Law Committee and Macquarie University’s Centre for Environmental Law’s (CEL) Jane Goodall Institute Australia’s Roots & Shoots program. Maxwell Edwards, who is currently working as a consultant at KPMG, studied a combined Law and Arts degree at Macquarie, with a major in Public Policy and Governance. He has studied all of the environmental law electives available at Macquarie, and has worked with the 32 | The Brief

NSW Environmental Defenders Office (EDO). Currently Maxwell is completing a Masters in Environmental Law. I start with a question on what environmental law electives Maxwell and Ashley have taken at Macquarie. Maxwell has taken environmental law, international environmental law, planning and local government law, advanced topics in environmental law, climate change law, and animal law. Ashley says that she chose Macquarie because it was at the time the only university in NSW that offered a bachelor of environment, and she is currently majoring in environmental management. I’m interested to hear about an elective that I’ve noticed many of my colleagues taking – climate change law, which is co-taught by Chief Justice Brian Preston and Judith Preston. Ashley observes that it’s a complex area, because both the scope of the subject and the public awareness is growing. She highlights that the unit covers issues such as Australia’s current climate change regime and responsibilities under international agreements such as the Paris Agreement.


While at first glance, climate change law may seem like a bit of a niche unit, Maxwell and Ashley’s experiences quickly dispel that notion for me. Maxwell says: ‘One of the things that I find fascinating is that environmental law isn't as isolated as other areas of law. I think that environmental law as an elective was really eye opening in that regard, because we think about law as ‘here’s torts, here’s contracts, here’s equity,’ etc. But environmental law is more like an underlying principle that can occur in every one of those areas. This reflects how multifaceted and complex environmental protection is. To learn environmental law is to reconceptualise your understanding of the broader context that connects all legal issues.’ I move onto work and advocacy. While Maxwell is busy with his current work in risk, he gives some really interesting soundbites into his time working with the Environmental Defenders Office. One of the interesting topics Maxwell has covered during his time working at the Environmental Defenders Office is coalmine expansions. In his words: ’I worked with the litigation and public policy team, mostly with litigation. There is a lot of coalmine expansion going on now. A big thing that came up was water quality and another one was putting an open pit mine in pristine nature. Water quality was a major issue, and coalmine developments were indifferent to it. It involved constitutional law such as ministerial concurrence and technical things such as neutral or beneficial effect about water quality. It gets very judicially interpretative and is kind of all over the shop. It’s mostly fighting mines…much cooler than fighting crime!’ Ashley has taken her interest in advocacy in a different direction, focusing on her interest in animal law. She has been working heavily with marine conservation-based non-governmental organisations (NGOs) on issues such as shark conversation and dolphins in captivity. I know that Ashley plays a crucial role as Project Officer at CEL’s Roots and Shoots program, so I ask her about her work there. She says: ‘I am working on a single-use plastic campaign at university with the Centre For Environmental Law. Last year through the CEL we became the first university worldwide

to establish Jane Goodall’s Roots and Shoots program which has been running since the early 90s in schools. Last year we were really lucky to have a special visit from Jane Goodall to Macquarie and it was great to tie her visit in with the Roots and Shoots program. In my role as project officer for the program, it’s my job to research, discover and design prospective environmental projects. During my research, I learned a lot about university policies such as the ‘Sustainability Strategy.’ I found that people who run events typically do not know how to receive a gold or silver star rating. A lot of the suggestions don’t get implemented as the policy is unclear and not mandatory.’ Ashley has been working with an expert in marine debris at Macquarie, Dr Scott Wilson, to work on policy and amendments to university guidelines through the CEL. She looks forward to working with student societies such as the Macquarie University Sustainability Squad (MUSS) on initiatives such as a plastic-free petition and movie screenings. She also has co-founded an organisation called Shark Conservation Australia. She says that sharks are a keystone species, which means that they play a crucial role in regulating the ecosystem. She says: ‘A quarter of all shark species are threatened with extinction, largely due to the demand for shark fin soup. Shark fin is viewed as a delicacy in many cultures. In order to circumvent the practice of live shark finning here in Australia, the Government established legally sanctioned shark fisheries. The fisheries are designed to catch the whole shark, fin the shark once it is dead and sell the cheap meat as ‘flake’ in fish and chip shops — so that they can profit from the export of shark fin. The imports and exports of shark fin are primarily to countries which do not have shark finning regulations and Australia is playing a huge role in that. Threats to the survival of shark species are well and truly local, national and international. Because of this, and the critical role that sharks play in keeping the ocean healthy, I felt that there needed to be an organisation focused primarily on sharks.’ As a keystone species, Ashley says that if sharks were eradicated, the oceans would not exist as we know them today, thereby affecting a lot of other marine species. She says: Edition 2, 2018 | 33


‘It’s been estimated that fisheries may collapse by 2050 and without sharks in the ocean I am so concerned about food security in the future. Prospective conflict over resources and food in the future becomes an international environmental law problem’ I switch back to Maxwell. When we started corresponding over email, Maxwell sent me his bio, which is how I came to discover that Maxwell had a previous life as a chef! I ask how he made the jump from searing scallops to public policy and litigation. He laughs, saying that working as a chef was a way to put himself through law school, although sometimes it was more demanding than law! He says: ‘I’ve always been interested in the legal side of things and litigation. I started doing law and finance, but I hated it. I took a public policy elective and loved it. I still have that mentality now, where even though I’m really passionate about law, I’m almost more interested in regulation and public policy. I think in environmental law it’s better to be proactive than reactive and public policy is a big part of that. It can be good to remember that there are ways to create positive change in that regard. Just having a real love of the outdoors was why I got into it.’ Maxwell is from the land of Justin Trudeau – British Columbia in Canada, and I ask what is different from Maxwell’s homeland in Canada to Australia in terms of environmental legal awareness. He notes that while it varies from region to region, inland towards Alberta, where the economy is based on oil, the issue is more complex. As he notes: ‘it’s an issue, but many Canadians see keeping food on the table as more of an issue.’ In this way, Maxwell says, it’s similar to Australia as they are both resourcebased economies. Herein lies the rub, as Hamlet would say – it’s almost the central issue of environmental law: balancing present economic interests against future generational interests, and you cannot necessarily blame either side for their opinion. Maxwell says: ‘That’s the eternal issue with environmental law - ecological destruction is presented as a choice, and by phrasing it that way then vested interests can stack the other side of that decision. I saw a morning news program 34 | The Brief

where one side was saying we need to focus on environmental issues and the other side said we need to focus on jobs and health care funding… by making environmental protection seem mutually exclusive to anything else, society will continuously lower it as a priority.’ Ashley agrees. She says that she had to do a lot of research on business and corporate ethics, and her research found that when people were not directly affected, it was more likely that they would make immoral or unethical decisions. I’m also interested in how Maxwell combines his interest in environmental issues with his work at KPMG. He gives me one example of working with a superannuation fund, noting that more and more often, companies are interested in incorporating environmentally sustainable practices. ‘One company we are working with now is a super fund. They are trying to change what they invest in, which is property development, to environmental energy. We are advising them through that process. It’s been interesting seeing how risk has started to incorporate environmental law more and more as previously it’s been just a box to tick. We used to just tick that box and a lot of the time companies interpreted that very superficially. Increasingly companies are being put under pressure. When I was working with the EDO, we looked at the impact statements of mines, which commonly would address the emissions they would generate but not the (way higher) follow on emissions from the use of the resource. In terms of risk assessment, those indirect considerations are often the most important.’ ***** Ashley has worked at NSW State Parliament as a policy, media and legislative advisor, and during her time there, she drafted two NSW Bills on outlawing puppy farming and the keeping of dolphins in captivity. I ask her about the unique challenges about working in the field of animal law, and she has some insightful observations on the way the legislation defines them. ‘A lot of people don’t know that animals are considered as property under the law. The law is designed to guide human behaviour but also has an ethical component to it and it’s ironic that the law that’s designed to uphold animal welfare


standards considers animals as property. They’re not property in the commons sense that we think of. Humans are allowed to use them as the law allows. That’s one of the biggest challenges that we face. To compare it, we have corporations and vessels that are provided with legal personality, animals who are living, don’t have that. That’s our biggest challenge.’ Environmental law in general intersects with a lot of other areas of law, and it’s really interesting to hear from both Maxwell and Ashley the ways in which they have had to work with other areas of law to address specific environmental issues. Ashley’s work on the Food Amendment Bill brings up a constitutional issue because the Constitution provides for freedom of trade between all states, which negated the possibility of banning trade of shark fin. Ashley says: ‘In the US they were able to outlaw the trade. In Australia, the situation is different. Section 92 of the Constitution provides for freedom of trade between all states. When looking at the trade of shark fin on a state level we really had to get creative. I did a lot of research and got to know the issue from top to bottom - when people say that law students aren’t creative that’s not true, because you have to think outside of the box when trying to address these issues. So we looked at making an amendment to the Food Act through a shark fin prohibition. The Bill has the ability to outlaw the use, sale and preparation of any shark fin product or derivative, NSW wide, although it wouldn’t restrict trade. The point is, you have to start somewhere, and it will set a precedent for them to look at the trade more at a national level. It’s more of a tactical thing to create momentum for a campaign because eventually we do want a national ban.’ ***** My last question for the day is what advice Ashley and Maxwell would give to other students who are interested in dipping their toes into environmental law. Ashley encourages students to focus on their personal interest and advocacy. She says: ‘Start a hundred percent by asking “what matters to me?” You need to ask yourself what you would want future generations to have and enjoy. A lot of people say “I care about the

environment, but I don’t know where to start.” That’s where I would start. You ask yourself, what do you believe is unjust? A lot of my work is based on normative questions and looking at social issues and where I feel that the law is lagging behind. You look at the rule of law, which is about fairness and justice. What would you change to make it more just? What would you change about current environmental law policies if you could? Passion, coupled with fierce determination and dedication is what makes a great advocate. You can be the most passionate person, but environmental law is complex; it is growing and moving fast —you need to think outside the box and be creative.’ Maxwell notes that it’s all part of a bigger mindset and the key thing that environmental law has taught him is that all problems are interconnected. He says: ‘I think everyone should try and set an example. We learn a lot about context in environmental law and how all problems are interconnected, which subsequently means that environmental advocacy is needed in every profession. Reform is needed on such a large scale that environmentalists shouldn't just work as environmental lawyers. My advice is: follow your passions, whatever they may be, and apply the critical thinking and conscientiousness you learn in environmental law to any problems you encounter along the way.” Ashley agrees, noting that people should play to their strengths but incorporate the wider context-based critical approach that environmental law and animal law has taught her. I have to agree with both Ashley and Max. Our conversation draws to a close, and while I’m eager to head out to lunch, my conversation with them has given me a lot of food for thought. Environmental law is complex and involves the input of many stakeholders and requires both bottom-up and top-down change and awareness. Thank you to both Ashley and Maxwell for taking the time to have this chat with me, and best of luck for the future! If you have any specific questions you would like to ask, you can send me an email at thebrief@muls.org, and I will forward it onto Ashley or Maxwell. Edition 2, 2018 | 35


Arda Reznikas

Clerkship Experience

Gilbert + Tobin

Why did you choose G+T? I chose G+T as I wanted to start my career off in a top tier firm, and everywhere I looked it was consistently ranked tier 1 in the areas of law I was interested in (competition law and corporate law). Of course, I’d also heard so much about G+T being the most innovative firm, and its proud, progressive social stance. Ultimately, I felt like the firm was both culturally and professionally aligned with my interests. What were some of the questions you were asked during your interview? I think I should firstly note that my interviews felt more like conversations than interviews. The experience was definitely more conversational than at some other firms. I think that an aspiring clerk should always be prepared for some standard questions. Why that specific firm? What type of law interests you? What do you like outside of the law? How would you deal with having competing responsibilities? You should always be prepared to answers questions about your key skills, like teamwork, leadership and time management, with examples. But at my interview, I think the greatest aspect to it was that I got to ask my interviewers questions, and really hear what they had to say about the firm and their experiences. It was more like a chat than an interview. How did you go about tailoring your CV/ cover letter to each firm that you applied to? Research, research, research. I can’t stress how important it is to research your firm. Check what your firm is known for, what it’s strong at and what its culture is like. What recent matters has it been involved in? What awards has it won? What deals have they done?

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I think the key is to not copy and paste a standard cover letter for every application. It really needs to read like you’ve thought about that specific firm, spent time researching it, and really want to work for that firm. You also need to think about yourself fitting in with that firm and make someone else think that you will. So, select your achievements, skills and attributes that you think that firm will prize. Describe a typical day as a clerk? A typical day as a clerk began with getting into Barangaroo in the morning, grabbing a coffee from G+T’s café, admiring some great Barangaroo views, having a chat with the other clerks, before heading to my desk. Most often I’d have some work to get on with from the previous day. If I’d finished working on something, my mentor or buddy would always have something interesting for me to help out with. Often we’d have some great clerkship activities running during the day – like the Design Jam competition or my pro bono project. Lunch usually meant catching up with the other clerks to talk about what they were up to in their practice groups. Usually after work, I’d catch up with some clerks, unless it was a clerkship sports night over at Rushcutters Bay, or firm drinks. What was the highlight of your clerkship? The people and the culture of the firm. During my clerkship rotations, I sat right next to a partner and a senior lawyer, and was always included on matters they were working on. I was invited to meetings/calls with clients and given real responsibilities – I never felt like I was ‘just’ a clerk. I learnt so much about the law, but also the clients’ industries. I think these are due to the culture at G+T. Its open plan office spaces really encourage participation.


A Postcard from Abroad

Exchange at the University of Copenhagen, January-December 2017  Raveena Randhawa

What University did you complete your exchange at? Tell us a bit about the subjects you studied. What was the most interesting subject? I particularly wanted to study international law subjects at the University of Copenhagen as I felt that it would be interesting to learn from a European perspective because the European Union legal system is vastly different from the Australian legal system. During my one-year exchange I studied: • International Human Rights Law • Peaceful Settlement of International Disputes • Great Trials in Western Legal History • European Union Intellectual Property Law • Law of Armed Conflict The most interesting subjects I studied were ‘Great Trials in Western Legal History’ and ‘European Union Intellectual Property Law’. I enjoyed ‘Great Trials in Western Legal History’ because I love history. The class covered a wide scope throughout history, from the trials of Socrates to Nuremburg. The ‘European Union Intellectual Property Law’ was interesting because I got to learn about the practical application of technological directives, regulations and issues the is EU grappling with in contemporary society. Why did you choose that particular university? Scandinavia has a very distinct and different way of life to the rest of Europe and I thought it would be interesting to experience it. This experience was also accessible because the language of instruction was English. I have also travelled to central and western Europe before but never to Scandinavia, and I thought this would be a great place as a base of travel to further explore.

In what ways is life as a law student different at the University of Copenhagen to life at Macquarie University? Studying at the University of Copenhagen was vastly different from Macquarie as the workload is considerably less but more self-directed. We had a 3-hour interactive seminar for each subject which was not recorded and noncompulsory. The exams were worth 100% and were usually 20-minute oral exams where you would sit with the professor and verbally discuss and analyse the course content, which sounds very nerve-wracking but ultimately, I preferred this way of examination. Tells us about the unique aspects of the University of Copenhagen, such as traditions, architecture, and extracurricular activities! One of the main traditions at the University of Copenhagen were the ‘Friday Bars’. These run from 4pm Fridays until the early hours of Saturday. I enjoyed a relaxed vibe of beer pong and a great old school hip hop and RnB playlist. Each faculty at the university holds their own ‘Friday Bars’ throughout the semester so it’s not unusual to see a group of people with shopping trolleys full of beer walking through the university on a Friday. The University of Copenhagen has its faculties split up across the city and does not have one main campus like Macquarie does. The law faculty on south campus is very new as it only opened in January 2017, so buildings and facilities are quite sleek, modern and exude Scandinavian minimalistic design.

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How do Danish students balance all their study, social and working commitments? Life as a student in Denmark is extremely different from Australia. This is because tertiary education is free in Denmark and every Danish student over 18 is entitled to SU –monetary support from the government to pursue their higher studies. Also, internships for university students are not as prolific and important for employment in Denmark as they are in Australia. As a result many more students choose to work outside their field of study. Did you participate in any work experience, volunteering or internships? I volunteered at the Roskilde Festival, which is a music festival in Roskilde – 30 minutes outside Copenhagen, working as a bartender at a gin bar with a group of friends for two 12-hour shifts. It was gruelling, but if you volunteer your ticket is free, and therefore it was a small price to pay for 7 days of free music! While I did not work during the semester, many international students volunteer at the Studenterhuset - which is a cafe for all university students in Copenhagen. They offer cheap drinks and have lots of activities such as movies, games and student dinner nights. It is a great way to meet people! 38 | The Brief

What advice would you have for a law student participating in an exchange programme? Go with the flow! Things often don’t work out as planned, especially when travelling, for example when my friend and I spent our last 30 hours in Reykjavik with no accommodation and no sleep. These are usually the most unforgettable parts of your journey! It is also worth doing an introductory language course if it is offered at your exchange university. It helps an appreciation and understanding about the language and culture of the country you are in, and also helps you navigate your way through experiences as simple as grocery shopping so you don’t end up buying live yeast instead of butter like a friend of mine did in Copenhagen! Also, travelling is fun but don’t forget to actually live in your city and explore it too! For Copenhagen specific advice: buy a bike! And try to live in a hall of residence with Danes because they know how to throw a party like no other and are the most unforgettable, fun friends. What would you have done differently if you got the opportunity again? The one thing I would do differently would be to buy a bike earlier in order to cycle more in Copenhagen. I originally did not participate because I thought I would be too unsteady and end up holding up traffic! Cycling really is an integral part of the Danish lifestyle that I regrettably did not participate in fully.


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