Graduate Diploma in Energy and Resources Law

Climate change is a pressing environmental, economic and social problem. Global warming is predicted to have wide-ranging impacts, and it presents enormous challenges for conventional models of law and socio-economic governance due to its pervasive character, long-term effects and the need for dynamic change in many of the fundamental areas of life. This subject examines the challenges for law in driving that change, from the United Nations Framework Convention on Climate Change (UNFCCC) and its associated Paris Agreement, to international trade and litigation, to federal and state legislative responses, through to local effects including on Indigenous peoples. The lecturer is active in research and advice in climate change law and governance in the international and domestic law spheres.

Principal topics include:

• The scientific basis for global warming and physical impacts of climate change
• The international legal framework, including the UNFCCC, Kyoto Protocol, Paris Agreement and associated international instruments
• Social and cultural impacts and legal responses, such as human rights protection
• The schemes for reducing emissions from deforestation and forest degradation (REDD).
• The role of the World Trade Organization (WTO) in climate change governance, particularly with respect to renewable energy technologies and the disciplining of fossil fuel subsidies
• The interaction of climate change regimes with other international law frameworks; eg World Heritage, refugee law and security
• The federal legislative framework for climate change mitigation and adaptation, including direct action plans, market mechanisms and carbon trading
• State-based legislative and regulatory responses to climate change
• Climate change regulation and its impact on corporate entities
• Bio-sequestration and carbon capture and storage
• The nature of climate change litigation

This highly topical subject analyses the rights of Indigenous peoples in Australia, Canada, the United States and New Zealand. Topics discussed include Aboriginal title and the doctrine of discovery, treaties, land and resource rights, self-determination, and Indigenous families and justice. The subject will be taught from a critical perspective, comparing and assessing the treatment of Indigenous rights in the four jurisdictions. In exploring these issues, the subject will also examine aspects of legal pluralism, and assess a variety of normative and political justifications for Indigenous rights.

Principal topics include:

• History of the concept of Aboriginal title and the doctrine of discovery
• Concepts of sui generis agreement-making between Indigenous peoples and governments
• Implications of distinctions between government obligations and Indigenous rights
• Overview of current practice
• Law applicable to Indigenous entities
• Legal framework for Indigenous governance
• Human rights and their influence on Indigenous rights
• Remedies.

Adequate, reliable and sustainable supplies of energy are crucial to modern societies, and their assurance demands the close and continuous involvement of governments. This subject explains the challenges—affordability, security of supply, safety, control of monopoly, sustainability in an age of global warming—that the economic and technical characteristics of different energy sources present to governments in Australia, and analyses the regulatory tools that they have at their disposal for responding to such challenges. It shows how the law can function both as an essential vehicle for such regulation and as a constraint on its content. The lecturer is a leading international authority on oil and gas law and has published extensively in the field of regulation.

Principal topics include:

• The nature of regulation, its development in Australia and its relationship with law
• General explanations and justifications for regulation
• The techniques of regulation
• Regulatory issues posed by the supply of different types of energy:
  • Mineral energies: coal, petroleum and uranium
  • Network energies: electricity, gas
  • Renewable energies
• The Australian federal environment for energy regulation. Two or more case studies of Australian energy regulation:
  • Electricity and gas: from state monopolies to regulated national markets
  • Mined energies: securing effective exploitation, managing resource conflicts
  • Renewable energies: regulatory incentives
• Cross-cutting issues in energy regulation:
  • Regulatory authorities
  • Forms of regulation: prescription versus goal-based regulation; discretion versus rules; legislation versus contract
  • Regulatory review and evaluation.

Environmental law deals with some of the most vital but also highly controversial issues within Australia and the global society. Environmental issues are a prominent feature of public debate, scientific research and regulatory action and this subject canvasses how law has evolved in response to such challenges, as well as identifying where reform may be required. The subject equips students with a strong grounding in the foundational principles of environmental law in Australia by reference to the Commonwealth Environment Protection and Biodiversity Act 1999, as well as relevant pollution control and biodiversity legislation. In addition, it provides an introduction to international environmental law dealing with questions such as trans-boundary harm and World Heritage protection, as well as considering how international influences have shaped the direction of Australian environmental law.

This subject will provide an examination of the development and current scope of Australian environmental law, with a focus on the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and related state environmental protection legislation.

Principal topics include:

• The growing importance of international law, with the recognition that environmental protection issues cross regulatory boundaries
• Greater integration between relevant discipline areas concerned with environmental protection
• Greater diversity in environmental law approaches, including integration with other regulatory areas such as planning, natural resource management, water use and indigenous land management, and financial measures and economic instruments.

These themes will be illustrated by case studies in the following areas:

• Environmental law: The drivers of change
• Environmental actors, including public interest litigation
• The range of legal and regulatory tools deployed in environmental law, including consideration of market mechanisms
• The interaction of law and science, with a focus on the precautionary principle
• Integration and complexity challenges in implementing environmental law with a focus on biodiversity protection
• International law trends, including trade and environment and climate change governance.

This new subject will consider cutting-edge issues in the law governing the liability of public authorities. Government liability is a field of great practical significance for government and those who interact with government. It also raises difficult issues of theory, lying at the border of public law and private law, and complex policy questions, such as the balance to be struck between interests in individual redress and public interests including the preservation of public finances. The subject will focus on the law of Australia and common law jurisdictions.

The subject will consider significant issues that arise across the major fields of liability. Within the law of torts the course will consider: public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services; misfeasance in public office; malicious prosecution; private and public nuisance; trespassory torts; statutory immunities or defences that provide special protection to public authorities; particular difficulties relating to governments direct and vicarious liability; and issues in the law of damages, including the novel subject of vindicatory damages. Within the law of unjust enrichment, the subject will consider the different grounds on which public authorities can be stripped of unjust gains, and particular issues associated with claims for the return of taxes unlawfully demanded. In the law of contract, the course will consider various special rules that may apply to government contracts including immunities, and will consider the consequences where contracts are entered into without authority. The subject will also consider the history of law reform proposals that seek to make government compensate for ultra vires administrative action, and the role of ex gratia payments.

Principal topics include:

• The law of torts
  • Public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services
  • Misfeasance in public office
  • Malicious prosecution
  • Private and public nuisance
  • Trespassory torts including false imprisonment
  • Vicarious liability of public authorities
  • Statutory immunities and special defences for public authorities
  • Damages awards against public authorities including vindicatory damages
• The law of unjust enrichment
  • Grounds for seeking restitution against public authorities
  • Recovery of unlawfully demanded taxes
  • Special defences for public authorities
• The law of contract
  • Special rules regulating government contracts
  • Consequences of ultra vires contracts
• Compensation beyond private law
  • Law reform proposals for compensation for ultra vires administrative action
  • Ex gratia payments.

International commercial arbitration is the most important method globally for resolving cross-border commercial disputes. The focus of this subject is on the basic principles of international commercial arbitration law and is taught from the perspective of both the practitioner advising clients and the scholar interested in advanced research. There will be a particular focus on the desirability of arbitration compared with other dispute resolution methods, the relationships between the courts and arbitrators, drafting techniques and developments in Australia and other countries.

Principal topics include:

• The nature of international arbitration
• Applicable law in international arbitration
• The Australian procedural regime and an introduction to the UNCITRAL Model Law
• Enforcing international arbitration agreements
• Appointment and qualifications of arbitrators
• Misconduct of arbitrators
• Privacy and confidentiality
• Enforcement and challenge of awards.

Newspaper headlines frequently concern global economic issues, from trade disputes between countries and investment claims by foreign investors against sovereign states, to countries facing balance-of-payments crises and seeking assistance from the International Monetary Fund (IMF). This subject examines the law governing global economic issues. It is designed both as a comprehensive introduction in its own right to this important field, as well as a foundation for further exploration through specialist subjects in the curriculum. It begins with a historical and theoretical background to the field before turning to focus on international trade law, particularly the rules and dispute settlement procedures of the World Trade Organization (WTO). It then discusses contemporary developments in international trade law and policy, including the negotiations for regional or bilateral preferential trade agreements. The subject then considers international investment law, examining key substantive obligations relating to investor protection and investor-state dispute settlement mechanisms (particularly through the International Centre for Settlement of Investment Disputes (ICSID)). Finally, the subject provides an introduction to the lending policies and practices of international financial institutions, particularly the IMF and the World Bank.

Principal topics include:

• Nature, evolution and context of international economic law
• The law of the WTO
• Dispute settlement in the WTO
• International investment law
• Investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention
• International financial institutions (particularly the IMF and the World Bank).

The mining industry is international in character and many mining and exploration companies operate in multiple foreign jurisdictions. This subject examines the legal, fiscal and regulatory regimes that govern mineral exploration and production internationally, with a particular emphasis on exploration and mining in developing countries. It deals with the negotiation of mining development agreements with host governments, regulatory schemes and fiscal regimes, community agreements, principles of sustainability and international norms affecting the mining sector. The lecturer has extensive practical experience in mineral ventures in a number of different jurisdictions.

Principal topics include:

• Mining development agreements
• Mineral ownership
• Legal structures
• Exploration regimes
• Fiscal regimes
• Foreign investment controls
• Marketing and financing issues
• Communities and indigenous peoples
• Land access issues
• Sustainable development principles
• International frameworks and norms applicable to mining.

This subject considers the legal issues and structure of transactions relating to the exploration, production and marketing of petroleum that, owing to its economic and strategic importance, is the most important commodity traded worldwide. This subject will give students a detailed understanding of how crude oil and gas are exploited and marketed worldwide. It will cover how countries establish sovereignty over petroleum resources and how host governments or their national (state-owned) oil companies contract with private companies to explore and develop oil and gas resources. This subject also reviews and analyses key contracts among petroleum companies, and contracts between petroleum companies and petroleum-services contractors, that facilitate exploration, development and marketing of petroleum. As petroleum is one of the most politically charged commodities, this subject will also consider extra-territorial anti-corruption law and political risk. In a broader sense, this subject will help students develop better analytical skills—especially the ability to critically evaluate contracts.

Principal topics include:

• Host government contracts
• Joint bidding, confidentiality, exploration and farmout agreements
• Joint operating and unitisation agreements
• Managing and contracting to avoid corruption problems
• Managing and allocating risk in service contracts.

This subject will address a selection of the most significant and cutting edge issues in the law governing public administration. Importantly the subject will take a contextual approach, placing administrative law principles in the context of the administrative processes they are designed to regulate, and considering the role of law in the design and working of government administration. It will seek to consider cutting edge issues in administrative law not only through the lens of legal analysis but also from the perspective of public officials, who are the addressees of and must work with administrative law principles. The subject will focus on the law of Australia and other common law jurisdictions.

The subject is divided into three parts. Part one, on decision-making, will address the distinction and interrelationship between discretion and rules, including the use and legal status of government policy and official guidance; administrative procedures, including in terms of e-governance; and the place of good governance values in government rule-making, including values of transparency, accountability and participation. Part two, on judicial-executive relations, will consider government strike-back against judicial decisions, both in the context of judicial review and public authority liability, and the interplay between judicial review and government resource allocation. Part three, on ‘new principles, new challenges’, will critically examine and chart the implications for public administration of emergent doctrines such as proportionality, legitimate expectations and duties of consultation.

The subject will be of interest to lawyers with interests in public law, and of especial interest to lawyers working in or who advise government, and to anyone with an interest in how law frames and operates within public administration.

Principal topics include:

• Administrative decision-making
  • Administrative discretion and rules, with a case study on the use and legal status of administrative policy and guidance
  • Administrative decision-making procedures and the role of legal norms
  • Government rule-making and good governance values including transparency, accountability and participation
• Judicial-government relations
  • Government responses to judicial decisions and the impact of judicial decisions on public administration, with cases studies in judicial review and government liability
  • Judicial review and government resource allocation
• New principles, new challenges
  • Emergent doctrines and their implications for public administration, with case studies on proportionality, legitimate expectations and duties of consultation.

The delivery of major energy and resources projects is an organic process which involves multifaceted interactions with the law. In this subject, students will gain insights into the way that advising on such projects involves navigating an often-challenging intersection of construction and regulatory systems, drawing on aspects of property law, environmental law, native title, finance, banking and commercial law.

Students will also engage with the need for reform in major project delivery, with the cost of project delivery in Australia already prohibitive and globally uncompetitive.

The subject will examine how major energy and resources projects are defined, designed, structured and developed, the pressure points for successful and cost-efficient project delivery in Australia, and the areas where conflicts and disputes emerge and how they are managed.

Principal topics include:

• Project scoping from feasibility to design, including examination of recent studies on procurement practices and a simulated workshop on feasibility models, risk analysis and front-end engineering and design (FEED)
• Overview of regulatory approval frameworks for major project delivery in the energy and resources sector, including a case study-based discussion of the interaction of such frameworks with construction document development and management
• Project delivery models and frameworks in the energy and resources sector
• Examination of leading causes of project stress and failure, including the need for proactive forensic planning
• Interactive case study where students collaboratively examine particular aspects of project design and execution
• Current approaches to dispute management in major project delivery, including exercises examining common problems encountered in drafting dispute resolution clauses in project documentation, as well as a discussion of contemporary and innovative approaches to dispute management and avoidance in major projects.

Mineral and petroleum resources have shaped Australia’s history, economy, society and environment for more than 150 years and continue to do so. The exploitation of these resources involves governments as proprietors and regulators, together with private enterprise as explorers and developers. The complex relationship between governments and private enterprise provides the central theme of the subject. Australia’s federal system of government adds to the complexity of that relationship. The subject begins by identifying fundamental legal issues that occur in most countries in the exploration for and production of mineral and petroleum resources. It then examines the ways in which these issues are resolved in Australia, using statutory title regimes and government agreements. The effectiveness of the Australian approach to these matters is examined in the international context of legal arrangements employed for management of mineral and petroleum resources elsewhere in the world.

Principal topics include:

• Terminology: the meaning of ‘mineral’ and ‘petroleum’
• Jurisdiction over mineral and petroleum resources
• Property in mineral and petroleum resources
• Statutory exploration and production titles
• Government royalties
• Petroleum production controls and unit development
• Dealings and registration
• Private royalties
• Access to land
• Environmental controls
• State agreements
• Unconventional gas
• Underground storage
• Greenhouse gas storage
• Uranium
• Case study 1: Mineral Resources (Sustainable Development) Act 1990 (Vic)
• Case study 2: Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).

The High Court’s 1993 Mabo decision and the Native Title Act 1993 (Cth) enable Aboriginal peoples and Torres Strait Islanders to seek the recognition in Australian law of rights arising under their traditional laws and customs in respect of land or waters, as native title. Native title groups may also seek compensation in certain cases for acts that have extinguished or otherwise affected their native title.

A determination of native title by the Federal Court requires proof of matters including the content of the relevant traditional laws and customs, the nature of the rights and interests, and the connection of the native title claim group with the land or waters by those laws and customs. Other matters to be addressed at trial include whether particular rights and interests are capable of being recognised by the common law, and whether valid laws or executive acts of the state or Commonwealth have extinguished native title such that it may not be recognised. Establishing native title also raises issues that are both theoretical and practical, such as the nature of ‘law’ and ‘tradition’, and the interaction between two systems of law.

Once native title is recognised, or a claim is registered, native title holders must engage with other elements of Australian law including state land management and resource extraction regimes, negotiate with other land users including mining companies, make and implement agreements, and manage the proceeds of those agreements using contemporary legal tools such as companies and trusts. Native title holders must manage their recognised native title rights and interests through a corporation that holds the native title on trust for them or manages it as their agent.

The lecturer has many years of academic scholarship in this area, engagement in law reform debates and providing practical, client-focused legal advice.

Principal topics include:

• Aboriginal and Western relationships with land: two systems of law
• Recognition of native title: the Mabo decision and the Native Title Act
• Proof of native title
• Native title practice: role and obligations of a lawyer for a native title group
• Decision-making by native title groups
• Extinguishment of native title
• Dealings with native title: future acts and agreements
• Alternative approaches to land justice in Australia
• Managing native title: commercial native title rights, tax, native title corporations, native title and land management, etc.
• Compensation for invalid acts affecting native title
• International and comparative approaches.

This subject examines the law applicable to planning and development projects within Victoria. A detailed analysis of the Planning and Environment Act 1987 (Vic) and its application will be supplemented by an examination of the various political and economic aspects that are continually at play in the Victorian planning regime. The subject will also address the interaction of the Victorian planning regime with a number of other statutory processes relevant to the development of land within Victoria, such as those contained within the Environment Protection Act 1970 (Vic), the Subdivision Act 1988 (Vic), and the Building Act 1993 (Vic).

A key component of the subject will be a case study concerning a hypothetical development proposal.

Principal topics include:

• The conceptual framework for planning law in Victoria
• Evaluation of the various components of the Victorian planning regime, focusing on the operation of the Planning and Environment Act 1987 (Vic) and the Victoria Planning Provisions
• The role of key actors under the Victorian planning regime (such as the Victorian Minister for Planning and municipal councils) and the key processes established under the regime
• The review of decisions made under the regime (both in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria) and the powers available to relevant planning authorities under the Planning and Environment Act 1987 (Vic)
• Particular problems that arise in the Victorian planning system such as the fair and equitable distribution of undesirable land uses, the limitation of urban sprawl within metropolitan Melbourne, the appropriate level of public participation in decision-making processes, and the need to deliver sound planning outcomes in a timely and efficient manner
• The interaction of the Planning and Environmental Act 1987 (Vic) and the Building Act 1993 (Vic).

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturers are leading practitioners in this area and they introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.

Private sector involvement in the financing, delivery and operation of public infrastructure is nothing new; it is, however, constantly evolving. The public appetite for social and economic infrastructure is insatiable, yet must constantly be tempered by economic constraints. Alongside the increasingly sophisticated and internationalised market for funding and technical capacity, there has been in recent years a renewed focus upon the policy bases for public private partnerships (PPPs) by governments and the broader community. Navigating all this in its legal context is one of the great ongoing challenges faced by the construction industry and its legal advisers. This subject, taught by two leaders in the field who bring a wealth of experience to the classroom, is designed to equip students to respond to this challenge.

Principal topics include:

• Historical perspectives on private involvement in the delivery of public infrastructure, how it has changed over time and lessons learnt
• Approaches to the categorising of PPP projects, including the broad distinction between ‘economic’ and ‘social’ infrastructure
• The dynamics of financing versus the fiscal responsibility of repayments and funding
• Features specific to the structuring and procurement of projects within each of these categories, including fundamental aspects such as the need to secure an income stream in relation to economic infrastructure and the relevance of the distinction, in relation to social infrastructure, between delivery of physical infrastructure and delivery of services
• Features specific to particular sectors within each of these categories (eg toll roads, power stations, water, health care, education and corrections)
• The various policy frameworks in place in Australia (and leading international agencies) for evaluation and engagement of private sector involvement in public infrastructure delivery
• Drivers that underpin the structuring, negotiation and delivery of PPP projects, including financing, probity and value for money (including public sector comparator mechanisms), competition, tax (including issues derived from Australia‘s federal structure as opposed to unitary systems in other countries) and construction risk.

The exploitation of mineral and petroleum resources involves substantial risk. The resources joint venture provides a commercial opportunity to manage this risk. It is a particular legal relationship: an association of persons (natural or corporate) to engage in a common undertaking to generate a product to be shared among the participants. Management of the undertaking is divided: the participants determine some matters by agreement at the outset of the relationship; the power to determine other matters is vested in a committee on which the participants are represented and entitled to vote; a manager (or operator) is appointed by the participants to conduct agreed activities, on their behalf, within the scope of the common undertaking (exploration, development production). This subject examines the legal issues involved in this complex relationship, together with ancillary transactions (such as farmouts). In doing so, it considers the capacity of the common law to respond to commercial imperatives. It also evaluates the effectiveness of legal documentation employed in establishing the joint venture relationship.

The lecturer, a former Dean of Melbourne Law School, has published extensively in the fields of energy and resources law and served as President of the Australian Mineral and Petroleum Law Association.

Principal topics include:

• Statutory titles, government agreements and production-sharing agreements
• Farmouts
• Joint ventures and operations
• Unit development
• The operator/manager
• Fundamentals of contract law and property law
• Assignment
• Liability
• Default
• Disclosure and confidentiality
• Sole risk
• Termination
• Codification.

Outer space, high seas, the deep seabed and Antarctica are areas governed by international law using the same set of legal principles centred around international management, non-appropriation, equitable use and peaceful purposes. The importance of these international areas and their resources has increased exponentially over the past 30 years due to globalisation and the need for these resources. New technologies, increasing demands for new resources, climate change and exotic tourism, driven by a tripling of the global economy over the next 30 years, mean that their importance will again increase dramatically. Management of these areas and their valuable resources is a rapidly developing area of international law that will affect many different areas of commerce and the law. This subject provides a unique opportunity to learn from two international lawyers with practical experience in the field.

Principal topics include:

• What are international areas, what is their importance and what are future trends in their use?
• The historical development of regulations governing the use of international areas and their resources, such as fishing, oil and gas extraction, pollution and access to orbits
• Law governing major international areas and their natural resources, including:
  • high seas
  • deep seabed
  • Antarctica
  • atmosphere
  • outer space
• Current issues and developments, in particular:
  • management of resources in the deep seabed, continental shelves, polar regions and celestial bodies
  • the right to protest at sea in connection with the use of natural resources
  • equitable access to outer space orbits, especially geostationary orbits
  • challenges of tourism in the deep sea, outer space and Antarctica
  • environmental impacts of human activities (polar melting; space debris; ocean fertilisation; marine pollution and dumping)
  • new and emerging uses of these areas (eg geo-engineering and the use of plant genetic resources for food and agriculture).

This subject focuses on legal and policy issues concerning the regulation of environmental quality. The first part of the subject considers the theoretical foundations of environmental regulation, including economic and non-economic perspectives on environmental degradation; the scientific predicate for environmental regulation; the objectives of environmental regulation; the valuation of environmental benefits; the distributional consequences of environmental policy; and the choice of regulatory tools, such as command-and-control regulation, taxes, marketable permit schemes, liability rules and informational requirements. The second part analyses the political dimensions of environmental law, including the role of the various institutional actors, the allocation of regulatory authority in a federal system, and public choice explanations for environmental regulation. The third and major part of the subject analyses, from legal and policy perspectives, the principal United States (US) environmental statutes, particularly the Clean Air Act, the Clean Water Act and the statutes regulating hazardous substances.

Principal topics include:

• Economic and non-economic perspectives on environmental degradation
• Scientific predicate for environmental regulation: Risk assessment
• Objectives of environmental regulation: Risk management
• Distributional consequences of environmental policy
• Choice of regulatory tools: Command-and-control regulation, marketable permit schemes and effluent fees
• Choice of regulatory tools: Deposit-refund systems, liability rules and informational approaches
• Federalism and environmental regulation
• Environmental law and public choice
• US Clean Air Act
• US Clean Water Act
• US Resource Conservation and Recovery Act (RCRA)
• US Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Introduction; potentially responsible parties.

Water law and natural resources management are fundamental to human society, environmental protection and many aspects of economic productivity. Legal rules around water co-evolved with the development of many societies. Water is both necessary for life but also a source of conflict. This subject considers the international laws governing water, including principles addressing trans-jurisdictional water governance for major river systems. It canvasses emerging questions, such as whether there is a human right to water, and climate change impacts on water availability. It examines the development of common law rules around water allocation and water quality that retain an important role in water management. There is a major focus on indigenous water rights.

The general development of statutory-based water law, concentrating on the Australian federal and Victorian situation, provides the main case study of water law and governance. The subject examines the water law reforms leading to adoption of the national Water Act 2007, and covers the federal legislation, such as the development of environmental water regulation and water trading. It provides an examination of the Victorian water legislation, which explores catchment and natural resources management issues. The subject has a focus on groundwater and looks at impacts on groundwater due to mining and fracking. This subject covers urban water laws, with a focus on novel uses, such as water recycling and storm water capture.

Principal topics include:

• International law and policy governing water, including examination of relevant treaties and conventions
• Water rights: including human rights and cultural rights – especially those of Indigenous peoples
• An overview of the current system of Australian statutory regimes for surface water and groundwater allocation and use
• Australian national water and resource management reforms, including the National Water Initiative
• The Water Act 2007 (Cth), including water trading and water planning
• Environmental water regulation
• Victorian water laws, including water authorities and governance models
• Water quality: addressing point source and diffuse water pollution
• Integrated catchment and natural resource management, including relevant catchment management legislation
• Urban water laws, including alternative water uses such as stormwater, and innovative recycling models such as water-sensitive urban design.

Climate change is a pressing environmental, economic and social problem. Global warming is predicted to have wide-ranging impacts, and it presents enormous challenges for conventional models of law and socio-economic governance due to its pervasive character, long-term effects and the need for dynamic change in many of the fundamental areas of life. This subject examines the challenges for law in driving that change, from the United Nations Framework Convention on Climate Change (UNFCCC) and its associated Paris Agreement, to international trade and litigation, to federal and state legislative responses, through to local effects including on Indigenous peoples. The lecturer is active in research and advice in climate change law and governance in the international and domestic law spheres.

Principal topics include:

• The scientific basis for global warming and physical impacts of climate change
• The international legal framework, including the UNFCCC, Kyoto Protocol, Paris Agreement and associated international instruments
• Social and cultural impacts and legal responses, such as human rights protection
• The schemes for reducing emissions from deforestation and forest degradation (REDD).
• The role of the World Trade Organization (WTO) in climate change governance, particularly with respect to renewable energy technologies and the disciplining of fossil fuel subsidies
• The interaction of climate change regimes with other international law frameworks; eg World Heritage, refugee law and security
• The federal legislative framework for climate change mitigation and adaptation, including direct action plans, market mechanisms and carbon trading
• State-based legislative and regulatory responses to climate change
• Climate change regulation and its impact on corporate entities
• Bio-sequestration and carbon capture and storage
• The nature of climate change litigation

This highly topical subject analyses the rights of Indigenous peoples in Australia, Canada, the United States and New Zealand. Topics discussed include Aboriginal title and the doctrine of discovery, treaties, land and resource rights, self-determination, and Indigenous families and justice. The subject will be taught from a critical perspective, comparing and assessing the treatment of Indigenous rights in the four jurisdictions. In exploring these issues, the subject will also examine aspects of legal pluralism, and assess a variety of normative and political justifications for Indigenous rights.

Principal topics include:

• History of the concept of Aboriginal title and the doctrine of discovery
• Concepts of sui generis agreement-making between Indigenous peoples and governments
• Implications of distinctions between government obligations and Indigenous rights
• Overview of current practice
• Law applicable to Indigenous entities
• Legal framework for Indigenous governance
• Human rights and their influence on Indigenous rights
• Remedies.

This subject examines the legal framework governing natural resources and renewable energy in China, with particular focus on mineral deposits, living organisms, and climate resources (i.e., wind, sunlight and atmospheric moisture). The objective is to provide students with a practical understanding of this important area of economic regulation, and an appreciation of the broader normative considerations (i.e., efficiency and redistribution) that are applicable to similar issues elsewhere. This subject draws from the lecturer’s extensive academic scholarship on resources law, regulatory theory, and Chinese legal system.

Principal topics include:

• The normative theoretical framework for assessing resources law, in particular the controversies and ambiguities surrounding the conceptions of economic efficiency and redistributive fairness 
• The constitutional framework in China governing natural resources, in particular provisions on property rights, ownership/allocation of natural resources, and environment protection.
• The core legislation/regulation governing natural resources and renewable energy in China with emphasis on provisions governing allocation, extraction/exploitation, and transfer
• The social, economic and political factors shaping the respective approaches towards natural resources management
• The strengths and weakness of the regulatory regime and general implications for natural resources management

Adequate, reliable and sustainable supplies of energy are crucial to modern societies, and their assurance demands the close and continuous involvement of governments. This subject explains the challenges—affordability, security of supply, safety, control of monopoly, sustainability in an age of global warming—that the economic and technical characteristics of different energy sources present to governments in Australia, and analyses the regulatory tools that they have at their disposal for responding to such challenges. It shows how the law can function both as an essential vehicle for such regulation and as a constraint on its content. The lecturer is a leading international authority on oil and gas law and has published extensively in the field of regulation.

Principal topics include:

• The nature of regulation, its development in Australia and its relationship with law
• General explanations and justifications for regulation
• The techniques of regulation
• Regulatory issues posed by the supply of different types of energy:
  • Mineral energies: coal, petroleum and uranium
  • Network energies: electricity, gas
  • Renewable energies
• The Australian federal environment for energy regulation. Two or more case studies of Australian energy regulation:
  • Electricity and gas: from state monopolies to regulated national markets
  • Mined energies: securing effective exploitation, managing resource conflicts
  • Renewable energies: regulatory incentives
• Cross-cutting issues in energy regulation:
  • Regulatory authorities
  • Forms of regulation: prescription versus goal-based regulation; discretion versus rules; legislation versus contract
  • Regulatory review and evaluation.

This subject explores the legal and regulatory structures affecting foreign investors seeking to participate in the development of energy resources in so-called ‘emerging markets’, and in particular in the restructuring of formerly socialist economies. Russia will be used as an example of an emerging market presenting particular characteristics and problems that provide important insights into emerging markets elsewhere in the world.

The subject coordinator has conducted research on ‘emerging markets’ over many years, and has extensive practical experience as an adviser in these matters. His work is widely published in numerous books and journal articles.

Principal topics include:

• Corruption and money laundering
• Liability for human rights abuses
• Forms of foreign investment and commercial transactions
• Local accreditation
• Taxation
• The privatisation process
• Intellectual property protection
• Import-export regulations
• Currency controls
• Project and conventional financing
• Banking
• Development and regulation of capital markets
• Securities and commodities exchanges
• Financing
• Environmental protection.

There will be daily simulated negotiation exercises.

This subject examines some legal aspects of a modern entertainment industry – in particular, contractual arrangements and intellectual property rights, as well as publicity and privacy rights. Particular reference will be made to the United States, home of the largest entertainment industry in the world, and Australia, which of course has its own important entertainment industry, but other countries will also be considered. The focus will be both on the written law (with an emphasis on legal development and policy) and the law as it is practised, with the latter part of the course devoted to a contract negotiation exercise. Cases and examples will mostly come from the fields of music, book publishing, the visual and performing arts and live theatre.

Principal topics include:

• The entertainment industry and measures of social value; stakeholders within and outside the industry; need for law; range of relevant laws
• Intellectual property and misappropriation: copyright and neighbouring rights, moral rights, trade mark rights, publicity rights, passing off, trade secret protection and unfair competition
• Contracting in the entertainment industry: licensing, joint ventures, examples of contracts in use (such as book publishing, music touring, character merchandising), and processes and strategies adopted in negotiation
• Expansion of rights: technological developments, sui generis or incremental responses, United States and Anglo-Australian approaches
• Privacy and related issues: implications for industry practice and entertainers
• Practical exercises on negotiation and drafting book and merchandising contracts (explored in a workshop environment).

International commercial arbitration is the most important method globally for resolving cross-border commercial disputes. The focus of this subject is on the basic principles of international commercial arbitration law and is taught from the perspective of both the practitioner advising clients and the scholar interested in advanced research. There will be a particular focus on the desirability of arbitration compared with other dispute resolution methods, the relationships between the courts and arbitrators, drafting techniques and developments in Australia and other countries.

Principal topics include:

• The nature of international arbitration
• Applicable law in international arbitration
• The Australian procedural regime and an introduction to the UNCITRAL Model Law
• Enforcing international arbitration agreements
• Appointment and qualifications of arbitrators
• Misconduct of arbitrators
• Privacy and confidentiality
• Enforcement and challenge of awards.

Newspaper headlines frequently concern global economic issues, from trade disputes between countries and investment claims by foreign investors against sovereign states, to countries facing balance-of-payments crises and seeking assistance from the International Monetary Fund (IMF). This subject examines the law governing global economic issues. It is designed both as a comprehensive introduction in its own right to this important field, as well as a foundation for further exploration through specialist subjects in the curriculum. It begins with a historical and theoretical background to the field before turning to focus on international trade law, particularly the rules and dispute settlement procedures of the World Trade Organization (WTO). It then discusses contemporary developments in international trade law and policy, including the negotiations for regional or bilateral preferential trade agreements. The subject then considers international investment law, examining key substantive obligations relating to investor protection and investor-state dispute settlement mechanisms (particularly through the International Centre for Settlement of Investment Disputes (ICSID)). Finally, the subject provides an introduction to the lending policies and practices of international financial institutions, particularly the IMF and the World Bank.

Principal topics include:

• Nature, evolution and context of international economic law
• The law of the WTO
• Dispute settlement in the WTO
• International investment law
• Investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention
• International financial institutions (particularly the IMF and the World Bank).

International environmental law is the field of public international law concerned with the protection of the natural environment, and those aspects of the built environment recognised as world cultural heritage. It is a vitally important branch of international law, seeking as it does to safeguard the environment on which humanity depends for its very existence. International environmental law seeks to integrate the activities of diverse actors—states, international organisations, businesses, communities and non-government organisations (NGOs) and uses a wide range of legal tools (including economic instruments and participatory mechanisms) to address pressing environmental concerns. This subject explores the critical governance and regulatory dimensions of international environmental law, as well as introducing you to cases and treaties that have been pivotal to the development of this area of international law. The lecturers in the subject are international environmental law experts, with both academic and practical experience in the field, which will be drawn into the delivery of a stimulating and relevant subject.

Principal topics include:

• The need for international environmental law and its historical development
• Fundamental principles and concepts necessary for an understanding of international environmental law, eg sustainable development, precautionary principle and 'polluter pays' principle
• The principal institutions and actors involved in the creation, implementation and enforcement of international environmental law
• The principal cases and treaties that have been influential in the development of international environmental law
• Current issues of concern in international environmental law, including atmospheric pollution and climate change, the protection of the oceans, species protection and biodiversity, and international trade.

The mining industry is international in character and many mining and exploration companies operate in multiple foreign jurisdictions. This subject examines the legal, fiscal and regulatory regimes that govern mineral exploration and production internationally, with a particular emphasis on exploration and mining in developing countries. It deals with the negotiation of mining development agreements with host governments, regulatory schemes and fiscal regimes, community agreements, principles of sustainability and international norms affecting the mining sector. The lecturer has extensive practical experience in mineral ventures in a number of different jurisdictions.

Principal topics include:

• Mining development agreements
• Mineral ownership
• Legal structures
• Exploration regimes
• Fiscal regimes
• Foreign investment controls
• Marketing and financing issues
• Communities and indigenous peoples
• Land access issues
• Sustainable development principles
• International frameworks and norms applicable to mining.

This subject considers the legal issues and structure of transactions relating to the exploration, production and marketing of petroleum that, owing to its economic and strategic importance, is the most important commodity traded worldwide. This subject will give students a detailed understanding of how crude oil and gas are exploited and marketed worldwide. It will cover how countries establish sovereignty over petroleum resources and how host governments or their national (state-owned) oil companies contract with private companies to explore and develop oil and gas resources. This subject also reviews and analyses key contracts among petroleum companies, and contracts between petroleum companies and petroleum-services contractors, that facilitate exploration, development and marketing of petroleum. As petroleum is one of the most politically charged commodities, this subject will also consider extra-territorial anti-corruption law and political risk. In a broader sense, this subject will help students develop better analytical skills—especially the ability to critically evaluate contracts.

Principal topics include:

• Host government contracts
• Joint bidding, confidentiality, exploration and farmout agreements
• Joint operating and unitisation agreements
• Managing and contracting to avoid corruption problems
• Managing and allocating risk in service contracts.

The law of the sea relates to the allocation of jurisdiction and peaceful uses of the seas and oceans, the equitable and efficient utilisation of marine resources, and the study, protection and preservation of the marine environment. Historically concerned with the ‘freedom of the seas’ for sovereign states, the law of the sea must also address contemporary and emerging challenges such as climate change, marine species preservation, pollution, overlapping territorial claims and national security. The overarching legal regime of the United Nations Convention on the Law of the Sea (UNCLOS) is supplemented by specific agreements as well as market techniques and supply chain oversight. This subject provides an overview and critique of the established and newly forming international regimes – and their interaction – and is informed by an institutional approach that acknowledges the influence of dispute settlement systems, non-state participation and transnational and administrative practices. The lecturers have published widely on fisheries law, trade law, the law of the sea and on the interaction between international legal regimes.

Principal topics include:

• The Law of the Sea Convention and associated instruments governing the high seas, including the Fish Stocks Agreement
• Divisions of jurisdiction within the Law of the Sea, including key notions of the territorial sea, exclusive economic zones (EEZ), areas beyond national jurisdiction (high seas) and the sea-bed area
• Voluntary instruments of the Food and Agriculture Organisation, including the Compliance Agreement, the Code of Conduct for Responsible Fisheries and the Port State Measures Agreement, as well as emerging views on the ecosystem approach and marine protected areas
• The International Convention for the Regulation of Whaling
• World Trade Organization (WTO) rules relating to subsidies, labelling and restrictions on illegal, unreported and unregulated (IUU) fishing
• The Convention on the International Trade in Endangered Species (CITES) and other multilateral environmental agreements (MEAs)
• Marine pollution, including microplastics and greenhouse gas emissions from bunker fuels
• Relevant dispute settlement bodies, including the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), arbitral bodies and the WTO.

Other topics may include:

• Marine protected areas, including efforts to create a new legally binding international agreement on Biodiversity Beyond National Jurisdiction (BBNJ)
• Freedoms of the seas in contested areas of jurisdiction (such as Sea Shepherd and Greenpeace’s Arctic Sunrise)
• Overlapping maritime claims such as the ruling on the South China Seas issued by an arbitral tribunal based at the Permanent Court of Arbitration
• The role of indigenous rights, subsistence and artisanal practices
• Selected regional approaches to fisheries management
• The influence of legal approaches to climate change, especially with respect to low-lying island coastal states.

The delivery of major energy and resources projects is an organic process which involves multifaceted interactions with the law. In this subject, students will gain insights into the way that advising on such projects involves navigating an often-challenging intersection of construction and regulatory systems, drawing on aspects of property law, environmental law, native title, finance, banking and commercial law.

Students will also engage with the need for reform in major project delivery, with the cost of project delivery in Australia already prohibitive and globally uncompetitive.

The subject will examine how major energy and resources projects are defined, designed, structured and developed, the pressure points for successful and cost-efficient project delivery in Australia, and the areas where conflicts and disputes emerge and how they are managed.

Principal topics include:

• Project scoping from feasibility to design, including examination of recent studies on procurement practices and a simulated workshop on feasibility models, risk analysis and front-end engineering and design (FEED)
• Overview of regulatory approval frameworks for major project delivery in the energy and resources sector, including a case study-based discussion of the interaction of such frameworks with construction document development and management
• Project delivery models and frameworks in the energy and resources sector
• Examination of leading causes of project stress and failure, including the need for proactive forensic planning
• Interactive case study where students collaboratively examine particular aspects of project design and execution
• Current approaches to dispute management in major project delivery, including exercises examining common problems encountered in drafting dispute resolution clauses in project documentation, as well as a discussion of contemporary and innovative approaches to dispute management and avoidance in major projects.

Mineral and petroleum resources have shaped Australia’s history, economy, society and environment for more than 150 years and continue to do so. The exploitation of these resources involves governments as proprietors and regulators, together with private enterprise as explorers and developers. The complex relationship between governments and private enterprise provides the central theme of the subject. Australia’s federal system of government adds to the complexity of that relationship. The subject begins by identifying fundamental legal issues that occur in most countries in the exploration for and production of mineral and petroleum resources. It then examines the ways in which these issues are resolved in Australia, using statutory title regimes and government agreements. The effectiveness of the Australian approach to these matters is examined in the international context of legal arrangements employed for management of mineral and petroleum resources elsewhere in the world.

Principal topics include:

• Terminology: the meaning of ‘mineral’ and ‘petroleum’
• Jurisdiction over mineral and petroleum resources
• Property in mineral and petroleum resources
• Statutory exploration and production titles
• Government royalties
• Petroleum production controls and unit development
• Dealings and registration
• Private royalties
• Access to land
• Environmental controls
• State agreements
• Unconventional gas
• Underground storage
• Greenhouse gas storage
• Uranium
• Case study 1: Mineral Resources (Sustainable Development) Act 1990 (Vic)
• Case study 2: Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).

From corporate self-regulation to multi-stakeholder certification, transnational private regulation is exploding. Multinational firms and powerful governments often succeed in exploiting the resulting overlaps and intersections amongst actors and institutions to bypass unattractive forums, shift decision-making to preferred arenas, shape outcomes in their favour and impose their desired rules on others. Marginalized equity-seeking actors such as workers, indigenous peoples, subsistence producers and industry-affected communities sometimes resist these efforts successfully. Rarely, they even exploit these overlaps and intersections to advance their own interests. Using real-world examples and cutting-edge interdisciplinary theory, the subject examines how powerful actors exploit transnational governance interactions in their favour and how these interactive dynamics can instead be harnessed to improve regulatory capacities, raise standards and empower weaker actors. The teacher heads the interdisciplinary Transnational Business Governance Interactions research network and is a leading scholar and practitioner of transnational private regulation.

Principal questions and topics to be addressed will include:

• What is transnational private regulation? Definition, actors, institutions, processes, history, trends, examples and relation to domestic and international law
• What are transnational governance interactions? Drivers, mechanisms, pathways, forms, impacts and spatio-temporal dynamics
• How do powerful actors exploit transnational governance interactions to advance their interests and sometimes to frustrate transnational regulation?
• When and how can transnational governance interactions be harnessed to enhance regulatory capacities, raise social and environmental standards, or empower weaker actors?
• What legal and other theories and methodologies might help to explain, predict and evaluate these interactive dynamics?
• What happened in selected cases of transnational governance interactions drawn from various sectors and issue areas including:
  • Agri-food
  • Biofuels
  • Climate Change
  • Derivatives Trading
  • Financial Technology
  • Fisheries
  • Food safety
  • Forestry
  • Indigenous Peoples’ Rights
  • Labour Standards
  • Oil and Gas
  • Social Responsibility Standards
  • Sports Mega-Events
  • Supply Chain Management
• What can be learned from these case studies? Implications for legal theory, practice, ethics and professionalism in a globalizing world.

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturers are leading practitioners in this area and they introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.

Private sector involvement in the financing, delivery and operation of public infrastructure is nothing new; it is, however, constantly evolving. The public appetite for social and economic infrastructure is insatiable, yet must constantly be tempered by economic constraints. Alongside the increasingly sophisticated and internationalised market for funding and technical capacity, there has been in recent years a renewed focus upon the policy bases for public private partnerships (PPPs) by governments and the broader community. Navigating all this in its legal context is one of the great ongoing challenges faced by the construction industry and its legal advisers. This subject, taught by two leaders in the field who bring a wealth of experience to the classroom, is designed to equip students to respond to this challenge.

Principal topics include:

• Historical perspectives on private involvement in the delivery of public infrastructure, how it has changed over time and lessons learnt
• Approaches to the categorising of PPP projects, including the broad distinction between ‘economic’ and ‘social’ infrastructure
• The dynamics of financing versus the fiscal responsibility of repayments and funding
• Features specific to the structuring and procurement of projects within each of these categories, including fundamental aspects such as the need to secure an income stream in relation to economic infrastructure and the relevance of the distinction, in relation to social infrastructure, between delivery of physical infrastructure and delivery of services
• Features specific to particular sectors within each of these categories (eg toll roads, power stations, water, health care, education and corrections)
• The various policy frameworks in place in Australia (and leading international agencies) for evaluation and engagement of private sector involvement in public infrastructure delivery
• Drivers that underpin the structuring, negotiation and delivery of PPP projects, including financing, probity and value for money (including public sector comparator mechanisms), competition, tax (including issues derived from Australia‘s federal structure as opposed to unitary systems in other countries) and construction risk.

The exploitation of mineral and petroleum resources involves substantial risk. The resources joint venture provides a commercial opportunity to manage this risk. It is a particular legal relationship: an association of persons (natural or corporate) to engage in a common undertaking to generate a product to be shared among the participants. Management of the undertaking is divided: the participants determine some matters by agreement at the outset of the relationship; the power to determine other matters is vested in a committee on which the participants are represented and entitled to vote; a manager (or operator) is appointed by the participants to conduct agreed activities, on their behalf, within the scope of the common undertaking (exploration, development production). This subject examines the legal issues involved in this complex relationship, together with ancillary transactions (such as farmouts). In doing so, it considers the capacity of the common law to respond to commercial imperatives. It also evaluates the effectiveness of legal documentation employed in establishing the joint venture relationship.

The lecturer, a former Dean of Melbourne Law School, has published extensively in the fields of energy and resources law and served as President of the Australian Mineral and Petroleum Law Association.

Principal topics include:

• Statutory titles, government agreements and production-sharing agreements
• Farmouts
• Joint ventures and operations
• Unit development
• The operator/manager
• Fundamentals of contract law and property law
• Assignment
• Liability
• Default
• Disclosure and confidentiality
• Sole risk
• Termination
• Codification.

Water law and natural resources management are fundamental to human society, environmental protection and many aspects of economic productivity. Legal rules around water co-evolved with the development of many societies. Water is both necessary for life but also a source of conflict. This subject considers the international laws governing water, including principles addressing trans-jurisdictional water governance for major river systems. It canvasses emerging questions, such as whether there is a human right to water, and climate change impacts on water availability. It examines the development of common law rules around water allocation and water quality that retain an important role in water management. There is a major focus on indigenous water rights.

The general development of statutory-based water law, concentrating on the Australian federal and Victorian situation, provides the main case study of water law and governance. The subject examines the water law reforms leading to adoption of the national Water Act 2007, and covers the federal legislation, such as the development of environmental water regulation and water trading. It provides an examination of the Victorian water legislation, which explores catchment and natural resources management issues. The subject has a focus on groundwater and looks at impacts on groundwater due to mining and fracking. This subject covers urban water laws, with a focus on novel uses, such as water recycling and storm water capture.

Principal topics include:

• International law and policy governing water, including examination of relevant treaties and conventions
• Water rights: including human rights and cultural rights – especially those of Indigenous peoples
• An overview of the current system of Australian statutory regimes for surface water and groundwater allocation and use
• Australian national water and resource management reforms, including the National Water Initiative
• The Water Act 2007 (Cth), including water trading and water planning
• Environmental water regulation
• Victorian water laws, including water authorities and governance models
• Water quality: addressing point source and diffuse water pollution
• Integrated catchment and natural resource management, including relevant catchment management legislation
• Urban water laws, including alternative water uses such as stormwater, and innovative recycling models such as water-sensitive urban design.