Master of Environmental 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

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.

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 provides an in-depth examination of negotiated instruments as a means of addressing international environmental problems. It focuses on legally binding agreements between states - that is, treaties - but also explores other types of negotiated instruments such as declarations and codes of conduct, which may be non-binding or involve non-state actors. The subject analyses issues of treaty negotiation and design by comparing the development of different environmental agreements, including the Montreal Ozone Protocol, the Paris Climate Agreement, the Basel Convention on Transboundary Movement of Hazardous Wastes, the International Convention for the Prevention of Pollution from Ships (MARPOL), and the World Heritage Convention. At the end of the subject, students will apply what they have learned in a mock negotiation.

This subject will focus on the functions of international environmental agreements, how they are negotiated and designed, and how they develop and evolve over time. Subject materials will include case studies of particular environmental negotiations and international relations explanations of environmental negotiations, including treaty design choices.

Principal topics include:

• Why do states negotiate environmental agreements? (costs and benefits, normative factors, domestic politics)
• Categorising agreements: legal/non-legal, constitutive/regulatory, global/regional
• Pre-negotiations: determining the negotiating forum and mandate
• Negotiating process: actors (coalitions/groups, chairperson, secretariat, NGOs), decision-making rules, organisation (inter-sessional meetings, open and closed sessions, means of resolving 'crunch' issues), adoption
• Treaty design: legal form; architecture; breadth; depth, types, and differentiation of obligations; institutions; mechanisms to promote participation, compliance, and flexibility; entry-into-force requirements
• Drafting techniques and, ways of resolving differences
• Treaty development: protocols, amendment, decisions of parties, interpretation
• International relations explanations.

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).

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.

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.

Risk and insurance are at the heart of all construction projects, yet their role and detailed provisions are often misunderstood, leading to significant losses and disputation. The already-sophisticated contracting landscape has, in recent years, been made significantly more complicated by the introduction of proportionate liability reforms. This subject will examine these issues with particular emphasis on how risk can be managed to minimise losses.

The lecturers are expert navigators in relation to these complex issues. They have leading-edge expertise in advising on risk, security for performance and insurance in the construction context.

Principal topics include:

• Identifying risk in a construction project and how various industry participants (including principals, contractors, designers, professional advisers, insurers, security providers, and statutory and government authorities) may bear responsibility
• Philosophies and commercial drivers affecting risk allocation in construction contracts and consultancy agreements, and how these are reflected in standard forms
• Security for performance mechanisms, including cash retentions, unconditional undertakings, parent guarantees, insurance bonds, adjudication bonds and other instruments
• Insurance products available to the construction industry (including public liability, works insurance, professional indemnity workers’ compensation and domestic building insurance) and the law relating to them, including regulation by legislation, common law principles and treatment under standard-form construction contracts and consultancy agreements
• Proportionate liability regimes (including Part IVAA of the Wrongs Act 1958 (Vic)) and their impact on contract risk allocation.

This subject will examine the nature and capacity of international law to accommodate both environment and development objectives. It will explore the meaning of ‘development’, the legal basis for promoting development, and the ways in which states balance environment and development considerations in international law. The nexus between development and the environment in international law is complex.  International laws protecting the environment have evolved to take account of development considerations. Environmental treaties such as the United Nations Framework Convention on Climate Change provide for different commitments from developing and developed countries. Meanwhile, international cooperation fostering development has been shaped by environmental protection. Economic instruments, such as those governing international trade, impact on environmental regulation, and development lending is often linked to environmental performance. The catch-all concept of sustainable development is invoked by states to combine consideration for environmental, economic and social development imperatives leading to contested outcomes.

Principal topics include:

• The historical evolution of the concept of ‘sustainable development’ in international law and the crafting of ‘Sustainable Development Goals’
• A critical appraisal of characterisations of ‘rights’ to a clean environment and to development in international law
• Case studies demonstrating how international laws to protect the environment take account of development considerations
• Case studies demonstrating how international economic instruments impact on or integrate environmental protection
• A critical assessment of the role of international law in states’ cooperative efforts to balance environment and development objectives.

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.

Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer

Principal topics include:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

The concept of development has been crucial to structuring international legal relations from the end of World War II to the present day. During that time, international law and institutions have taken on ‘development’ as a primary project. In both the public and economic domains, the vast majority of international institutions engage with the development project in some shape or form. This subject invites students to think about the nature and importance of development and its relation to international law. The history of development in relation to imperialism, decolonisation, the Cold War and globalisation means that this set of relations is complex and dynamic. Understanding it is crucial to understanding the place of international law, and the work development does in the contemporary world.

Principal topics include:

• Law and development as a field
• The ‘development’ concept and its precursors
• The relationship between the concepts of ‘law’ and ‘development’
• The institutionalisation of development
• Development, imperialism, decolonisation and the nation state
• Permanent sovereignty over natural resources and the new international economic order
• Debt crises and development(s) at the Bretton Wood institutions
• Trade and development
• Globalisation, governance and the rule of law
• Sustainability, democracy and human rights
• Resistance, alternatives and post-development
• The future: development and security.

This subject examines the histories of international law. It will investigate, firstly, the reason for the turn to understanding the history of international law, and, secondly, the methodological approaches available for such a project (eg interdisciplinary insights; feminist critiques of international legal study; the sense of a ‘visual culture’ of international law and legal practice). The notion of ‘censorship’ will feature prominently in the subject, either in its pure form (eg Woodrow Wilson’s "open treaties" idea) or by virtue of its indirect meaning and impact (eg how technical expertise and the notion of "crisis" have obscured the role of history in international law).

Principal topics include:

• An assessment of historical method in international law and its significance
• The approaches to history taken by international lawyers and the impact of forms of censorship on them
• The development of the concept of freedom of the oceans in international law and its connections to imperial trade and commerce
• The function of religion in the history of international law; for example, the role of the papacy
• International legal responses to slavery and the slave trade; for example, in the United States Supreme Court
• The history of the League of Nations
• Depictions of international legal rights, such as the right to self-determination
• The rise of interdisciplinary approaches to international law, from history and literature to anthropology and psychology
• The gendered nature of histories of international law.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

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.

International investment is today understood as a key element of successful development policy. However, both the historical and conceptual foundations of this apparent convergence demand careful investigation. While mainstream economic thinking asserts that foreign investment is beneficial for poor countries, critics have pointed out that it can be positive or negative depending on how it is regulated. Against this debate, investment treaties are typically weighted in favour of developed states, and as a matter of international law, poorer countries have increasingly limited regulatory tools at their disposal with which to govern the operations of transnational investors within their territory.   Conflicts frequently arise between the needs of local communities and international investors over access to land, resources, and water, leading to displacement, loss of livelihoods and human-rights violations.  The role of the state in regulating these conflicts is often complex, and the responsibilities of large multinational corporations are unclear. Using a historically-grounded case study-based approach, this subject will provide students with an opportunity to critically examine the relationship between international investment, local communities and the state within contemporary legal and institutional development policy and practice.

Principal topics include:

• Introduction to the contested meanings of international investment, regulation and development
• The links between investment, development and regulation, examined through case studies
• An examination of the historically contested role of international law in framing the terms on which multinational corporations access resources in developing countries, including investment treaties, business and human rights, as well as older initiatives
• An examination of the role of international institutions, including the World Bank and the International Monetary Fund (IMF), in governing investment and development
• The debate over global versus local labour standards and the dilemmas over monitoring
• The debates over ‘land grabbing’ and access to agricultural land in developing countries.

Science and technology are at the heart of many of the most pressing legal and social problems of our day: disease prevention, bioethics, big data, state and corporate surveillance, the regulation of military technologies, and so on. This subject invites students to consider the common challenges of law, policy and public discourse posed by problems of this sort, at both the domestic and international level. In doing so, it asks: how do scientific discoveries and their technological applications shape our legal and social worlds? And how do law and society affect scientific and technological developments in turn?

The overall aim is to equip students coming from diverse backgrounds, training and experience with the analytical and critical tools necessary to understand and respond to complex questions of science and technology in all their legal, social, (geo)political, ethical, and cultural dimensions.

The lecturer undertakes research and advocacy in this area and was recently a visiting fellow at the Harvard Program on Science, Technology and Society.

Principal topics include:

• Science and technology studies as a field
• The relationship between ‘law’, ‘science’, ‘technology’ and ‘society’ as concepts and fields of practice
• Biotechnology and bioethics
• Drug patents and disease prevention
• Big data and global surveillance
• Military technologies
• Public discourse around science and technology
• The future: advocacy, law reform and other critical encounters between law, science, technology and society.

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).

Payment has always been at the heart of construction contracting, and payment disputes have been—and remain—at the centre of construction law case law. This subject aims to provide students with a detailed understanding of the contractual procedures for payment and associated issues such as set-off. Its major focus is upon the ‘security of payment’ reforms of recent years. This state and territory-based legislation was designed to simplify the payment stream and disputation yet, in practice, has spawned hundreds of court cases, further complicating the contracting landscape for construction projects. The lecturers are based in the two states that have been at the forefront of the reforms—Queensland and New South Wales—and are therefore well-placed to guide students through this area of law.

Principal topics include:

• Payment processes under construction contracts, including treatment under standard forms and the impact of the security of payment legislation enacted in various jurisdictions
• History and policy underpinnings of the security of payment legislation, including comparison of the regimes in Australia, the United Kingdom and New Zealand
• Processes to resolve payment disputes, including those under security of payment legislation (with detailed consideration of bases for judicial review of such processes)
• Associated issues, including set-off, securing payment to workers and subcontractors, and means of dealing with the consequences of late payment.

The concepts of urban sustainability are driving the regulation of the built form of our increasingly large, complex and smart cities. The global sustainable development goals have also led urban regulators to embrace more participatory and innovative forms of governance for our society and economy.

This subject explores how those concepts apply in the regulation of planning and construction and the framework and governance for the development of smart, resilient and sustainable cities. In particular, it will focus on the role of municipal and state laws in achieving liveable communities.

The subject will cover the Environmentally Sustainable Development (ESD) Local Planning Policies and consider whether planning regulation in Victoria incorporates best practice in environmental assessment. It will explore the interesting tension between building and planning law and the respective contribution of each in driving sustainable outcomes.

Another component of this subject will follow the introduction of building information modelling (BIM) arising out of the architecture, engineering and construction management sectors. This topic offers a further but alternate perspective of shifting regulatory dynamics that pitch towards sustainability objectives, whether on built environment projects or across broad-scaled applications.

This subject has been designed for those interested in the intersection between planning and construction law and environmental law. The course includes guest lectures, visiting some of Melbourne’s iconic green buildings and assessing urban planning initiatives, such as the Queen Victoria Market Redevelopment, for their contribution to the development of Melbourne as a sustainable city.

Principal topics include:

• Sustainability in the city; exploring new ideas on what sustainable development means in an urban setting, policy priorities for sustainability, ideas of new governance for sustainability, and new economic and legal models to achieve sustainability outcomes
• Green building and climate change developments, directions and policy, including resilience and risk
• Urban planning and sustainability, including the use and role of land-use planning laws and local governance to achieve improved sustainability features in the built urban environment, focusing on Victorian laws
• The broad regulatory setting for green buildings and urban sustainability, including a sustainability analysis of the National Construction Code
• Sustainability rating tools for energy efficiency and the regulation of green buildings, through voluntary and mandatory schemes, including GreenStar and BASIX, and a comparison of green rating and standard tools in Australia (NABERS), the United States (LEED) and the United Kingdom and Europe (BREEAM)
• An introduction to building information modelling (BIM) relative to sustainability opportunities and challenges, from construction projects and local and international policy perspectives
• An applied case study analysis of how integrated sustainable urban construction law works in practice.

This subject is designed for construction law students without prior legal training (Construction Law is for students who have a law degree). It provides an overview of the broad spread of the construction law curriculum, from the statutory and common law landscape through legal aspects of project procurement and contracting to dispute avoidance and resolution options. This subject also provides detailed treatment of legal issues specific to construction law such as variations, quality, time and payment. The seminar format is supplemented by exercises to develop students’ skills in contract preparation and writing legal hypotheticals, and includes sessions on construction law research tools and techniques.

Principal topics include:

• Overview of the regulatory regime for construction contracting
• Causes of action in construction disputes
• Contracting methodologies
• Contract administration: standard forms of contract, tendering, contract preparation and minimising legal exposure
• Role and liability of superintendents
• Issues relating to sub-contracts
• Variations
• Quality of work
• Latent conditions
• Time, programming and liquidated damages
• Contractual mechanisms for payment and security of payment legislation
• Security for performance
• Insurance
• Dispute avoidance procedures and alternative dispute resolution
• Construction litigation and arbitration (domestic and international).

This subject is an introduction to the foundational principles and rules of the public international legal order. It is designed as an introduction to international law and, therefore, provides students with an understanding of the key concepts of international law, its history and contemporary relevance, sources of international law and the role of some key international institutions, such as the United Nations (UN). The subject is grounded in both theory and practice in order to consider how international law works in shaping and dealing with a range of issues such as dispute settlement, self-determination, decolonisation, diplomacy, international criminal law and human rights law. Contemporary examples will be used to enrich student learning. Students will be encouraged to critically evaluate the position and relevance of international law in international politics and society by addressing past and current developments through case studies. The members of the teaching team are scholars in international law who have developed specific areas of specialisation in international law.

Principal topics include:

• The nature, purpose and language of international law
• Sources of international law
• International legal personality
• Jurisdiction of states and jurisdictional immunities
• The responsibility of states and individuals for violations of international law
• The role of the UN and regional organisations
• Peaceful settlement of disputes and the functions of the International Court of Justice
• Regulation of the use of force in international relations
• The relationship between international law and municipal law.

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.

As markets are increasingly globalised, there is an accompanying diffusion of sites of regulation and governance. Diverse actors and organisations – public and private, national and international, spanning jurisdictional boundaries – compete for the authority to define and operationalise the rules for the conduct of global commerce. These developments raise a number of fundamental questions for lawyers: how is regulatory authority distributed in global markets, and how should it be? How are completing claims to such authority mediated and resolved in practice? And what role does law play in shaping the dynamics of global markets?

This subject helps students think about these questions from a number of different perspectives. Students are introduced to the range of techniques and institutions that currently exist to address regulatory controversies and to set the conditions for regulatory coordination. In addition, students are asked to engage with some of the deeper questions of normative political and social theory raised by the operation of these techniques and institutions, through readings drawn from a variety of disciplines, including sociology, science and technology studies, politics and law. This technical and theoretical material is set side by side with, and explored through, a series of four grounded case studies, typically drawn from contemporary global markets in financial services, tobacco control, biotechnology, carbon trading, fisheries and energy. The subject develops understanding of ‘fragmentation’, which in this context refers to the proliferation of sites of global governance, as well as the theme of ‘expertise’, which signals an interest in contemporary re-articulations of the power-knowledge nexus. Regulating Global Markets will be of interest to lawyers whose practices support international businesses, students who are engaged with contemporary political questions around economic globalisation and the backlash to it, and anyone with an interest in questions of political and social theory as they relate to international law.

There will be four case studies addressed in the subject, the content of which may change from year to year. Illustrative topics include the global dimensions of:

• The regulation of biotech foods
• Currency manipulation
• Tobacco control
• Financial stability
• The industrial policy of climate change
• Global fisheries management
• Public support systems for energy (both renewable and fossil-fuel based)
• Foreign investment in agriculture and infrastructure services.

The theoretical writing will be organised around four themes, which may include some of:

• Global constitutionalism
• Empire
• Sociotechnical imaginaries
• Reflexivity
• Regime interaction
• Expertise studies
• International governmentality studies
• Global administrative law
• New governance
• Global experimentalist governance.

The law and institutions covered in the subject will depend on the case studies chosen. However, students can expect a significant part of the subject to focus on such institutions as the World Trade Organization, the International Monetary Fund, the World Bank, the Food and Agricultural Organization, the International Center for the Settlement of Investment Disputes, the World Health Organization, the Codex Alimentarius Commission, and their related bodies of law.

Conservation biologists warn that we are in the midst of a great extinction crisis. Biodiversity Law is an emerging field, examining legal regimes designed to conserve Earth’s endangered forms of life. We will voyage to foreign intellectual lands – e.g. environmental ethics, conservation biology – and take a few real voyages to see biodiversity law in action. We will examine the nuts and bolts of Australian and foreign legal regimes with an attempt to discern most effective legal practices to conserve biodiversity, grounding our analyses in in-depth case studies.  Our investigations will be framed by two overarching questions: What is the legal framework for preserving life on Earth? What should be the components of the legal framework for preserving life on Earth?

Principal topics will include:

• A short primer on principles of environmental ethics and conservation biology and how these principles inform the practice of Biodiversity Law;
• Understanding the threats to biodiversity the law must confront;
• In-depth study of Australia’s Environment Protection and Biodiversity Conservation Act (EPBC) to understand how this law interacts with Australian State and Territorial law to protect biodiversity;
• Consideration of Australian court cases that have interpreted the EPBC’s (and other biodiversity protective legal) provisions as applied to threatened species and ecosystems;
• Comparative studies of United States, South Africa, and other national legal approaches to, and court decisions on, biodiversity conservation;
• Attention to Australian (and foreign) biodiversity facing particular challenges (Great Barrier Reef, isolated marsupial populations, cetaceans) and how the law is (or is not) meeting those challenges;
• Analysis of the Convention on Biological Diversity,and other international treaties including how they are implemented in domestic law;
• In-depth case study on global wildlife poaching and smuggling;
• Discussion of “ownership” of biodiversity, including the rights that indigenous populations have to biodiversity;
• Discussion of market mechanisms designed to incentivize biodiversity conservation;
• Examination of non-legal means to preserve biodiversity;
• Synthesis of best practices for how to preserve and steward life on Earth.

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

The frequency and severity of ‘natural’ disasters, like flood, cyclone and bushfire, and longer term phenomena, such as drought and sea level rise, will increase as a result of climate change; posing major threats to settlements, infrastructure, natural resources and biodiversity. This subject covers the multi-scalar legal response to disasters involving international treaties and soft-law instruments, national and regional regulation, and private law (torts and contract), and encompassing climate change adaptation, emergency management, environmental liability, insurance and human rights. It will examine approaches to prepare for, avoid or minimise disaster impacts, and to respond effectively and equitably post-event. Relevant case studies are drawn from Australia and various comparative jurisdictions regionally and internationally.

This subject critically examines different legal approaches to avoid, mitigate and respond to natural disasters and relevant adaptation planning, emergency and natural resource management regimes.

Principal topics include:

• An overview of disasters and climate change impacts, focusing on predicted changes to the frequency, intensity and geographical occurrence of natural hazards, and impacts on human settlements
• Examination of the types of public and private planning and legal mechanisms at the local, state, national and international scale relevant to disaster management
• International agreements and soft law, with case studies of their application to recent disaster events (eg liability regimes for oil and gas disasters and mining incidents; funding mechanisms for disaster risk reduction; instruments for the protection of persons in disasters)
• Emergency management and adaptation planning in Australia, with selected case studies covering: coastal hazards: NSW coastal management and land-use planning regimes; bushfire: Victorian land-use planning, emergency management and recovery, and relevant compensation law for the 2009 bushfires and fires in open cut coal mines in the La Trobe valley in 2015; Flood: statutory planning and insurance regimes in Queensland, and the response to the 2011 floods; Drought: emergency water allocation management in urban and rural areas in south-eastern Australia
• Comparative case studies in developed and developing countries, evaluating the transferability of legal principles (eg responses to drought and water scarcity in the western United States and southern Africa; coastal adaptation planning instruments in the US and United Kingdom; and typhoon readiness in South East Asia).

With policy and law-makers under pressure to subordinate environmental concerns to short-term economic imperatives, environmental advocates are increasingly looking to human rights as a means of reinforcing the importance of environmental protection to human welfare. Domestic, regional and international human rights laws present a range of opportunities and challenges for addressing harms done to the environment.  There are also a number of conceptual concerns with framing environmental issues in terms of human rights.  Students will work as a class and in small groups to understand the relationship between human rights law and environmental protection at domestic, regional and international levels. The subject will provide insight into strategic aspects of human rights advocacy for the environment, using case studies to explore the roles of state and non-state actors in environmental protection and to consider a range of approaches in the different regions of the world.  Resources drawing from academic, policy and advocacy material will be used to interrogate practical and critical perspectives on human rights law and environmental protection.

Principal topics include:

• The relationship between human rights and the environment in theory and practice
• Human rights that protect the environment, including general rights such as the rights to privacy, health and to information as well as specific rights ‘to’ and ‘of’ the environment
• Domestic, regional and international governance of human rights in relation to the environment
• Sustainable development and its relevance to issues of human rights and the environment in the different regions of the world
• The implications of human rights law for indigenous peoples and environmental protection
• The roles and responsibilities of non-state actors in relation to ‘environmental rights’, including environmental advocates and businesses
• Channels for redress beyond formal legal mechanisms for people and for ‘nature’.

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.

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.

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.

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.

Risk and insurance are at the heart of all construction projects, yet their role and detailed provisions are often misunderstood, leading to significant losses and disputation. The already-sophisticated contracting landscape has, in recent years, been made significantly more complicated by the introduction of proportionate liability reforms. This subject will examine these issues with particular emphasis on how risk can be managed to minimise losses.

The lecturers are expert navigators in relation to these complex issues. They have leading-edge expertise in advising on risk, security for performance and insurance in the construction context.

Principal topics include:

• Identifying risk in a construction project and how various industry participants (including principals, contractors, designers, professional advisers, insurers, security providers, and statutory and government authorities) may bear responsibility
• Philosophies and commercial drivers affecting risk allocation in construction contracts and consultancy agreements, and how these are reflected in standard forms
• Security for performance mechanisms, including cash retentions, unconditional undertakings, parent guarantees, insurance bonds, adjudication bonds and other instruments
• Insurance products available to the construction industry (including public liability, works insurance, professional indemnity workers’ compensation and domestic building insurance) and the law relating to them, including regulation by legislation, common law principles and treatment under standard-form construction contracts and consultancy agreements
• Proportionate liability regimes (including Part IVAA of the Wrongs Act 1958 (Vic)) and their impact on contract risk allocation.

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.

Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer

Principal topics include:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

This subject will introduce and explore the main concepts, laws, institutions and policies at the intersection of international climate change law and international human rights law. 

Specifically, this subject will explore three aspects of the intersection between climate change and human rights. First it will explore the nature and extent to which the impacts of climate change and response measures to address climate change can affect the realization of core human rights. It will examine the substantive and procedural rights afforded through national, regional and international instruments to those affected by environmental harms, and the ways in which such rights can be extended to cover climate harms. It will in this context analyze cases in national, regional and international courts and tribunals that engage human rights in the context of climate harms.

Second, this subject will examine the treatment of human rights in the international climate change regime, and the prospects for further integration of human rights concerns in the regime. Third, this subject will consider the phenomenon of climate-related migration and displacement, the existing international legal protection for those affected, the gaps in such protection and ways to address these gaps.

More broadly, through a study of these three aspects, this subject will examine the potential, prospects and limits of international law in protecting the rights of those affected by climate harm.

Principal topics include:

• Conceptual architecture of international environmental law, climate change law and human rights
• Articulation of environmental protection in the language of human rights, both substantive and procedural, in international, regional and national human rights systems, instruments and case law
  • autonomous ‘right to a healthy environment’ and its extension to a stable climate
  • ‘greening’ of established rights such as the right to life and privacy and their extension to protection against climate harms
  • value and reach of procedural human rights in relation to protection from climate harms
• Treatment of human rights in the UN Framework Convention on Climate Change, the Kyoto Protocol, and the 2015 Paris Agreement
• Legal protection (and gaps) in addressing climate-related migration and displacement

This subject is an introduction to the foundational principles and rules of the public international legal order. It is designed as an introduction to international law and, therefore, provides students with an understanding of the key concepts of international law, its history and contemporary relevance, sources of international law and the role of some key international institutions, such as the United Nations (UN). The subject is grounded in both theory and practice in order to consider how international law works in shaping and dealing with a range of issues such as dispute settlement, self-determination, decolonisation, diplomacy, international criminal law and human rights law. Contemporary examples will be used to enrich student learning. Students will be encouraged to critically evaluate the position and relevance of international law in international politics and society by addressing past and current developments through case studies. The members of the teaching team are scholars in international law who have developed specific areas of specialisation in international law.

Principal topics include:

• The nature, purpose and language of international law
• Sources of international law
• International legal personality
• Jurisdiction of states and jurisdictional immunities
• The responsibility of states and individuals for violations of international law
• The role of the UN and regional organisations
• Peaceful settlement of disputes and the functions of the International Court of Justice
• Regulation of the use of force in international relations
• The relationship between international law and municipal law.

The concept of development has been crucial to structuring international legal relations from the end of World War II to the present day. During that time, international law and institutions have taken on ‘development’ as a primary project. In both the public and economic domains, the vast majority of international institutions engage with the development project in some shape or form. This subject invites students to think about the nature and importance of development and its relation to international law. The history of development in relation to imperialism, decolonisation, the Cold War and globalisation means that this set of relations is complex and dynamic. Understanding it is crucial to understanding the place of international law, and the work development does in the contemporary world.

Principal topics include:

• Law and development as a field
• The ‘development’ concept and its precursors
• The relationship between the concepts of ‘law’ and ‘development’
• The institutionalisation of development
• Development, imperialism, decolonisation and the nation state
• Permanent sovereignty over natural resources and the new international economic order
• Debt crises and development(s) at the Bretton Wood institutions
• Trade and development
• Globalisation, governance and the rule of law
• Sustainability, democracy and human rights
• Resistance, alternatives and post-development
• The future: development and security.

In recent decades, cities have become a critical site through which contemporary international aspirations are pursued. Increasingly, cities are asserting themselves as international actors while also coming to be regulated by global lawmaking processes. This subject offers an in-depth inquiry into international law and global governance, viewed through the lens of the city. Relevant both to scholars and practitioners, the course critically assesses the international legal framework in which cities in the global north and south are coming to be enmeshed, with a focus on the city-scale governance of climate change, urban security and human rights.

The subject will combine interactive lectures with group presentations, invited speakers and the use of documentaries and new media. Readings will be drawn from law and a wide range of other disciplines, including international relations, history, geography, development, sociology, anthropology, architecture, planning and philosophy. The more theoretical texts will be complemented by primary sources allowing students to develop a close reading on one of the most topical developments in contemporary global governance and international law.

Principal topics include:

• Introduction: Cities, international law and global governance today - an overview
• History and theory: From interwar internationalism to state decentralisation; The emergence of the global city; Urban development and the right to the city
• The legal framework: Cities in international law; Cities in domestic legal orders; Cities and international organisations: The local in the International Monetary Fund (IMF) and the World Bank; Cities as civil society; Cities
• Practices: The sustainable City: The climate change regime; The bankable city: Urban finances, competitiveness and debt; The human rights city: Local residents and urban development
• The law and politics of global cities: Local activism and the remaking of international law; Alternative local futures and global orders.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

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.

Is sustainable finance the answer to climate change, poverty and inequality?  The purpose of this subject is to immerse students in sustainable finance in international practice, from micro-finance to green bonds, renewable energy and refugee financing. Across these markets, key legal concepts, structural features and documentation are covered in detail.  By engaging in-depth, through term sheet negotiations, the students jointly develop the skills to assess, prioritise, challenge and negotiate these transactions.

The subject coordinator draws on his own experience in global sustainable finance, and invites experts from international law firms and consultant, to help you become ‘more than a lawyer’.

This innovative subject will combine classroom teaching with online learning.  Students will be expected to attend four days in class and participate in online learning prior to the subject being taught.

Principal topics include:

• The Sustainable Development Goals, their evolving regulatory framework, their implementation by banks, funds and corporates in international practice
• Development Finance, the actors and the law, covering such diverse issues as sanctions law, immunities and aspects of state aid, as well as environmental and social law in financial transactions
• Understanding the structural features of international financial transactions with a focus on sustainability
• Inclusive finance, through microfinance, gender finance and small and medium enterprise (SME) lending, and relevant regulation
• Green bonds, SDGs bonds and social impact bonds, furthering sustainability the capital markets
• Local currency financing as a means for derivatives to provide sustainable development
• Legal aspects of renewable energy project finance
• Impact investing (private equity and funds)
• Examples of structured sustainable finance, for instance through refugee finance, vaccine bonds, drought risk transfer and microfinance securitisation 
• Examples of litigation in sustainable finance, for instance the risk of mis-selling ‘green’ products, and legal means to address this risk in documentation as well as through strategic means.

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.

Science and technology are at the heart of many of the most pressing legal and social problems of our day: disease prevention, bioethics, big data, state and corporate surveillance, the regulation of military technologies, and so on. This subject invites students to consider the common challenges of law, policy and public discourse posed by problems of this sort, at both the domestic and international level. In doing so, it asks: how do scientific discoveries and their technological applications shape our legal and social worlds? And how do law and society affect scientific and technological developments in turn?

The overall aim is to equip students coming from diverse backgrounds, training and experience with the analytical and critical tools necessary to understand and respond to complex questions of science and technology in all their legal, social, (geo)political, ethical, and cultural dimensions.

The lecturer undertakes research and advocacy in this area and was recently a visiting fellow at the Harvard Program on Science, Technology and Society.

Principal topics include:

• Science and technology studies as a field
• The relationship between ‘law’, ‘science’, ‘technology’ and ‘society’ as concepts and fields of practice
• Biotechnology and bioethics
• Drug patents and disease prevention
• Big data and global surveillance
• Military technologies
• Public discourse around science and technology
• The future: advocacy, law reform and other critical encounters between law, science, technology and society.

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).

This subject considers the topic of non-governmental organisations (NGOs) and international development. In addition to critically examining the development context, this subject will highlight the importance of NGOs in development and engage with the criticisms that NGOs working in and towards development attract. In that respect, the course demonstrates how interest in NGOs has both reflected and informed wider theoretical trends and debates within development studies, public international law and not-for-profit law. It will also consider NGOs in relation to ideas and debates about civil society, globalisation and ideas and practices of international aid. The subject will consider a wide diversity of NGOs and locate their modern roles within broader histories of imperialism, proselytization, charity, self-determination and struggle as well as within the ideological context of neoliberalism. The legal and policy relationships of NGOs with governments and how this impacts on national and popular sovereignty, service delivery and civil and political freedoms will be examined through contemporary practice and case studies.

Principal topics include:

• Introduction to NGOS: What are non-governmental organizations? What legal forms do they take? How are they regulated?
• Understanding NGOs in historical context
• Introduction to development: what do we mean by development?
• NGOs and development theory: from missionary to mainstream?
• NGO roles in contemporary development practice
• NGOs and ‘civil society’
• NGOs: contemporary practice and case studies
• NGOs and the government sponsored aid system
• NGOs and international humanitarian action
• Australia, development and NGOs
• NGOs in broader perspective.

Payment has always been at the heart of construction contracting, and payment disputes have been—and remain—at the centre of construction law case law. This subject aims to provide students with a detailed understanding of the contractual procedures for payment and associated issues such as set-off. Its major focus is upon the ‘security of payment’ reforms of recent years. This state and territory-based legislation was designed to simplify the payment stream and disputation yet, in practice, has spawned hundreds of court cases, further complicating the contracting landscape for construction projects. The lecturers are based in the two states that have been at the forefront of the reforms—Queensland and New South Wales—and are therefore well-placed to guide students through this area of law.

Principal topics include:

• Payment processes under construction contracts, including treatment under standard forms and the impact of the security of payment legislation enacted in various jurisdictions
• History and policy underpinnings of the security of payment legislation, including comparison of the regimes in Australia, the United Kingdom and New Zealand
• Processes to resolve payment disputes, including those under security of payment legislation (with detailed consideration of bases for judicial review of such processes)
• Associated issues, including set-off, securing payment to workers and subcontractors, and means of dealing with the consequences of late payment.

The concepts of urban sustainability are driving the regulation of the built form of our increasingly large, complex and smart cities. The global sustainable development goals have also led urban regulators to embrace more participatory and innovative forms of governance for our society and economy.

This subject explores how those concepts apply in the regulation of planning and construction and the framework and governance for the development of smart, resilient and sustainable cities. In particular, it will focus on the role of municipal and state laws in achieving liveable communities.

The subject will cover the Environmentally Sustainable Development (ESD) Local Planning Policies and consider whether planning regulation in Victoria incorporates best practice in environmental assessment. It will explore the interesting tension between building and planning law and the respective contribution of each in driving sustainable outcomes.

Another component of this subject will follow the introduction of building information modelling (BIM) arising out of the architecture, engineering and construction management sectors. This topic offers a further but alternate perspective of shifting regulatory dynamics that pitch towards sustainability objectives, whether on built environment projects or across broad-scaled applications.

This subject has been designed for those interested in the intersection between planning and construction law and environmental law. The course includes guest lectures, visiting some of Melbourne’s iconic green buildings and assessing urban planning initiatives, such as the Queen Victoria Market Redevelopment, for their contribution to the development of Melbourne as a sustainable city.

Principal topics include:

• Sustainability in the city; exploring new ideas on what sustainable development means in an urban setting, policy priorities for sustainability, ideas of new governance for sustainability, and new economic and legal models to achieve sustainability outcomes
• Green building and climate change developments, directions and policy, including resilience and risk
• Urban planning and sustainability, including the use and role of land-use planning laws and local governance to achieve improved sustainability features in the built urban environment, focusing on Victorian laws
• The broad regulatory setting for green buildings and urban sustainability, including a sustainability analysis of the National Construction Code
• Sustainability rating tools for energy efficiency and the regulation of green buildings, through voluntary and mandatory schemes, including GreenStar and BASIX, and a comparison of green rating and standard tools in Australia (NABERS), the United States (LEED) and the United Kingdom and Europe (BREEAM)
• An introduction to building information modelling (BIM) relative to sustainability opportunities and challenges, from construction projects and local and international policy perspectives
• An applied case study analysis of how integrated sustainable urban construction law works in practice.

This subject is designed for construction law students without prior legal training (Construction Law is for students who have a law degree). It provides an overview of the broad spread of the construction law curriculum, from the statutory and common law landscape through legal aspects of project procurement and contracting to dispute avoidance and resolution options. This subject also provides detailed treatment of legal issues specific to construction law such as variations, quality, time and payment. The seminar format is supplemented by exercises to develop students’ skills in contract preparation and writing legal hypotheticals, and includes sessions on construction law research tools and techniques.

Principal topics include:

• Overview of the regulatory regime for construction contracting
• Causes of action in construction disputes
• Contracting methodologies
• Contract administration: standard forms of contract, tendering, contract preparation and minimising legal exposure
• Role and liability of superintendents
• Issues relating to sub-contracts
• Variations
• Quality of work
• Latent conditions
• Time, programming and liquidated damages
• Contractual mechanisms for payment and security of payment legislation
• Security for performance
• Insurance
• Dispute avoidance procedures and alternative dispute resolution
• Construction litigation and arbitration (domestic and international).

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.