Commonwealth Legislation Research Articles

Notes on the type specimen of Lepidium pseudopapillosum (Brassicaceae) and its presence and conservation status in New South Wales, Australia

The holotype of Lepidium pseudopapillosum Thell. was previously thought to have been collected in New South Wales, Australia, and has been the only specimen lending credence to its occurrence in the state. A review of the type specimen has shown that this is not the case and that the location ascribed to the type in the protologue is in error. It is here posed that L. pseudopapillosum is restricted to South Australia and Victoria, and that in New South Wales this name has been misapplied to L. ginninderrense N.H.Scarlett. The conservation status on state and Commonwealth legislation should be amended to reflect this correction by removing L. pseudopapillosum from New South Wales conservation legislation but listing the species as endangered nationally.

The Debauched Commons: A Dark Parable

‘The Debauched Commons: A Dark Parable’ summarizes issues regarding intellectual property rights and immaterial culture through a nuanced reading of how First Nations Peoples worldwide have been forced by forms of neoliberal-capitalist exploitation of the knowledge commons to ring-fence and/or commodify their lived traditions, in many cases dating back 100,000 years and clearly predating any and all Western (First World) concepts of ownership. The intention of the structuralist-inspired reading of this enforced defensive position is to emphasize and clarify issues concerning prior art and moral rights, two of the most ambiguous and gamed elements of copyright and patent law. Drawing upon the international context of the Declaration on the Rights of Indigenous Peoples (2007) and the Convention for Safeguarding Intangible Heritage (2003), this essay will focus, in part, on the travails of Aboriginals in Australia as representative of First Peoples worldwide and their long-exploited and long-expropriated traditions, inclusive of land, but foremost lived knowledge, but also their often compromised position vis-à-vis various Australian state and Commonwealth legislation concerning recognition of their copyright, moral rights, and intellectual property rights. In this complex dance between tradition, heritage, and law, the so-called public domain often also becomes a de facto warehouse for the eventual conversion of intangible rights to collectively held and stored cultural property, which is then leveraged and/or converted to cultural capital by both public institutions and private companies. The primary premise of the analytic to be applied is that commodification of knowledge is more or less co-equal to the digitization of culture and the regimes of expropriation and/or outright theft associated with platform cultures. Platform culture, in turn, implicates otherwise benign, or apparently benign institutions (for example, academia and the art world) claiming to advance understanding and resolution of the twin nemeses of post-contemporary cultural politics—diversity and justice. The subtle machinations of what has come to be called the art-academic industrial complex will thus be analyzed for implicit and explicit practices that are reducible to the appropriation of native rites and rights, and laws and lores, for self-serving reasons inclusive of radical-chic posturing and politically correct tokenism.

The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?

The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?

ESG Poster ESG1: Design for decommissioning – focusing on preventative strategies and beneficial impact assessment for managing offshore infrastructure

Poster ESG1 Offshore oil and gas infrastructure removal can have significant impact to newly developed ecological services, human safety, fuel consumption emissions and unrecoverable costs. Through Net Environmental Benefit Analysis-Comparative Assessments (NEBA-CA) it is evident that in situ alternatives can alleviate some of these impacts. In situ management of infrastructure is currently restricted by state, commonwealth and international legislation in Australia resulting in the base-case of full removal often being favoured. The default to full removal is often due to areas of uncertainty such as long-term infrastructure stability, polymer and material degradation, intergenerational eco-toxicological impact and commercial fisheries risks. This paper will present front-end design alternatives to address these areas of uncertainty and provide a more robust justification for leaving infrastructure in place post decommissioning. To access the poster click the link on the right. To read the full paper click here

Design for decommissioning – focusing on preventative strategies and beneficial impact assessment for managing offshore infrastructure

Offshore oil and gas infrastructure removal can have significant impact to newly developed ecological services, human safety, fuel consumption emissions and unrecoverable costs. Through Net Environmental Benefit Analysis-Comparative Assessments (NEBA-CA) it is evident that in situ alternatives can alleviate some of these impacts. In situ management of infrastructure is currently restricted by state, commonwealth and international legislation in Australia resulting in the base-case of full removal often being favoured. The default to full removal is often due to areas of uncertainty such as long-term infrastructure stability, polymer and material degradation, intergenerational eco-toxicological impact and commercial fisheries risks. This paper will present front-end design alternatives to address these areas of uncertainty and provide a more robust justification for leaving infrastructure in place post decommissioning.

Oil and gas exploration and development in the Lake Eyre Basin: distribution and consequences for rivers and wetlands, including the Coongie Lakes Ramsar Site

Context Altered flooding regimes and pollution threaten the world’s wetlands, including floodplains of the largely free-flowing rivers. Aims We investigated the distribution of current and future oil and gas production and exploration on the floodplains of the Lake Eyre Basin. Methods We compiled these data and their associated infrastructure across the basin floodplains, including the Coongie Lakes Ramsar Site. Key results There were 831 oil and gas wells across the Lake Eyre Basin, predominantly (98.6%) on Cooper Creek floodplains, with 296 wells in the Coongie Lakes Ramsar Site, with 281 well pads, roads (870 km) and 440 storages. Only eight referrals occurred under the Environment Protection and Biodiversity Conservation Act 1999, despite potential Ramsar wetland impacts. Future oil and gas production licences, primarily unconventional gas production, covered ∼2.91 × 106 ha (Cooper Creek), 0.63 × 106 ha (Diamantina) and 1.03 × 106 ha (Georgina) of the floodplains. Conclusions and implications Oil and gas production and exploration disrupt flooding regimes, with pollution (spills and greenhouse gas emissions). Little rigorous environmental assessment existed to protect the Lake Eyre Basin rivers and Coongie Lakes Ramsar Site, despite state and Commonwealth legislation and policy for protection, which remain largely ineffective in controlling oil and gas development on this free-flowing river.

Getting our Act together to improve Indigenous leadership and recognition in biodiversity management

SummaryIncreasingly scientists and policy makers are acknowledging the importance of Indigenous participation in effective biodiversity conservation. In Australia, the recognised Indigenous estate is vast, accounting for up to 57% of the continent and comprising some of the highest priority conservation lands, including 46% of the formal National Reserve System. The Environment Protection and Biodiversity Conservation Act 1999 (the Act) is Commonwealth legislation designed to protect and manage nationally and internationally important species and ecological communities, which entails specific objectives to recognise Indigenous people. However, to date the involvement of Indigenous people in implementation of the Act has been inconsistent and inadequate, particularly in the protection of the Indigenous estate, understanding and supporting Indigenous people’s aspirations for Country and culturally significant species, and respecting the traditional management of species and landscapes. In this article, we will explore the key barriers and opportunities for improving Indigenous participation in biodiversity conservation under the Act. We structure our exploration using the three connected themes: (1) meaningful Indigenous engagement and participation, (2) recognition of the Indigenous Estate and (3) strengthening Indigenous‐led governance. We find that there is a pressing need and an immediate opportunity to reform and strengthen the Act to protect Indigenous Knowledge, to recognise and report on the role of Indigenous Estate, and to realise the aspirations of Indigenous peoples for improved land and sea management that strengthens people, culture and Country.

Measurement of roost entrance activity of Pilbara leaf-nosed bats (Rhinonicteris aurantia) using passive integrated transponder tags

Until recently, little was known about the ecology, foraging patterns and regional movement of the Pilbara leaf-nosed bat (Rhinonicteris aurantia, Pilbara form). Its only known permanent diurnal roosts are in deep caves or disused underground mines that offer a very specific microclimate. There are few suitable roosts and, as a result, the Pilbara form of this species is under pressure from development and mining and is listed under Commonwealth and State legislation as a vulnerable mammal. In 2017 a recording system was installed at the permanent Ratty Spring Roost near Paraburdoo, and 18 adult bats (11 males and 7 females) were fitted with passive integrated transponder (PIT) tags. The roost entrance activity of the bats was then monitored for over two years and the movement patterns of the bats were recorded. Variations in timing of first departures after dusk, last arrivals before dawn, total time out of the roost, the number of foraging bouts out of the roost and the number of exit and re-entry pairs on a nightly, monthly and seasonal basis were determined for the colony and for both males and females separately. This is the first activity data collected from individuals of this conservation-significant species at its roost cave entrances.

Detection of the rare Australian endemic blind cave eel (Ophisternon candidum) with environmental DNA: implications for threatened species management in subterranean environments

The blind cave eel, Ophisternon candidum (Mees in J R Soc West Aust 45: 24–32,1962), is a rare groundwater inhabitant found in geographically isolated populations of north-west Australia. The species is listed as vulnerable under Commonwealth legislation and is a priority consideration when environmental disturbance by resource companies is proposed. Detection of this species for Environmental Impact Assessment (EIA) and monitoring is difficult because individuals are naturally rare or traditional sampling techniques are ineffective. To properly manage the species, information on population distribution and connectivity is critical. We sought to examine whether environmental DNA (eDNA) of O. candidum could be detected and whether positive detection was correlated with previous locations where the species had been physically caught. We developed new eDNA species-specific PCR assays to screen groundwater sampling points and we detected O. candidum DNA in three boreholes where the species has previously been collected and five additional groundwater sampling points. Our results demonstrated that the newly designed assays were effective for detecting this rare and vulnerable subterranean species. This work sets a benchmark for the application of eDNA species-specific PCR assays for EIA and monitoring, and has potential for these assays to be expanded more broadly to high-throughput eDNA metabarcoding for subterranean groundwater communities in the future.

Inquiry into Anti-Vilification Protections

In this policy submission to Inquiry into Victorian Anti-Vilification Laws, researchers of the Allens Hub for Technology, Law and Innovation discuss the effectiveness of the Racial and Religious Tolerance Act 2001 Act; interaction between the Act and other state and Commonwealth legislation; the role of the state in relation to anti-vilification laws and the importance of retaining and expanding the scope of such laws; and the legal issues that may affect law enforcement approaches to detecting and prosecuting online offending.

Tiered Community Membership in Australia: The Impact of Constitutional Concepts and Contemporary Developments on Refugee Access to Citizenship

This article explores various ways in which Commonwealth legislation and government policy have shifted in recent years to increase both the legal barriers to inclusion for migrants seeking to become part of the Australian community, and the circumstances in which those already legally recognised as members of the community can become susceptible to exclusion. It examines the ways in which these shifts have produced new “tiers of membership” within the Australian community, and discusses the implications of this, both from a constitutional perspective and on affected individuals. The article illustrates that these shifts have affected some groups of migrants more than others. Relevantly, given the subject of this special issue, they have had a disproportionately detrimental effect on refugees who arrive in Australia by boat seeking asylum.

Conservation systematics of the shield-backed trapdoor spiders of the nigrum-group (Mygalomorphae, Idiopidae, Idiosoma): integrative taxonomy reveals a diverse and threatened fauna from south-western Australia.

The aganippine shield-backed trapdoor spiders of the monophyletic nigrum-group of Idiosoma Ausserer s. l. are revised, and 15 new species are described from Western Australia and the Eyre Peninsula of South Australia: I. arenaceum Rix & Harvey, sp. n., I. corrugatum Rix & Harvey, sp. n., I. clypeatum Rix & Harvey, sp. n., I. dandaragan Rix & Harvey, sp. n., I. formosum Rix & Harvey, sp. n., I. gardneri Rix & Harvey, sp. n., I. gutharuka Rix & Harvey, sp. n., I. incomptum Rix & Harvey, sp. n., I. intermedium Rix & Harvey, sp. n., I. jarrah Rix & Harvey, sp. n., I. kopejtkaorum Rix & Harvey, sp. n., I. kwongan Rix & Harvey, sp. n., I. mcclementsorum Rix & Harvey, sp. n., I. mcnamarai Rix & Harvey, sp. n., and I. schoknechtorum Rix & Harvey, sp. n. Two previously described species from south-western Western Australia, I. nigrum Main, 1952 and I. sigillatum (O. P.-Cambridge, 1870), are re-illustrated and re-diagnosed, and complementary molecular data for 14 species and seven genes are analysed with Bayesian methods. Members of the nigrum-group are of long-standing conservation significance, and I. nigrum is the only spider in Australia to be afforded threatened species status under both State and Commonwealth legislation. Two other species, I. formosum Rix & Harvey, sp. n. and I. kopejtkaorum Rix & Harvey, sp. n., are also formally listed as Endangered under Western Australian State legislation. Here we significantly relimit I. nigrum to include only those populations from the central and central-western Wheatbelt bioregion, and further document the known diversity and conservation status of all known species.

Sir Robert Garran: Medio Tutissimus Ibis

Sir Robert Randolph Garran (10 February 1867-11 January 1957) played a unique role in the early development of the Commonwealth. As Secretary to the Drafting Committee of the Australasian Federal Convention of 1897 and 1898, he was intimately involved in the process by which the Australian Constitution was produced. As Secretary of the Attorney-General's Department from 1901 to 1932, he was responsible for drafting foundational Commonwealth legislation and he played a key part in establishing coherent interpretations of the Constitution in advice to successive Federal Governments. Three aspects of Garran's life and work are explored in this article: the popular movement which established the process by which the Constitution was negotiated, drafted, and submitted to referenda for approval; Garran's tenure and legacy as Secretary of the Attorney-General's Department; and Garran's views on federalism and constitutional law.

It's Time for Federal Regulation of Retirement Villages

As Australia's population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law. This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

It's Time for Federal Regulation of Retirement Villages

As Australia’s population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the States and Territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law. This article challenges the effectiveness of State and Territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of State and Territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.

National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update

This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.

National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update

This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.

‘Possibly they did not know themselves’: the ambivalent government of sex and work in the Northern Territory Aboriginals Ordinance 1918

The Aboriginals Ordinance of 1918 was the first piece of Commonwealth legislation to address the government of Aboriginal people. Covering the Northern Territory, it focused primarily on conditions in Darwin and operationalised Baldwin Spencer’s understanding of the project and terrain of government. This article focuses on the confusion that attended its idiosyncratic definition of ‘Aboriginal’, arguing that its uncertainty was not a problem but a condition of its operation. The Ordinance was directed primarily towards securing a White Australia by fostering a healthy white tropical population, practising a settler colonial biopolitics of the population. In conceiving Aboriginal subjects as both domestic labourers providing an indispensable service to white family life in the tropics and as traffickers in venereal disease, threatening white health, the Ordinance registered an ambivalence fundamental to northern government that was perplexing to those who sought in it clarity. It aimed to secure a white population by exercising lawful eruptions of power over the intimate relationships and mobilities of all northern Aboriginal people, fabricating a racial taxonomy that was divided by a thick, contingent and discretionary colour line.

Livestock grazing affects habitat quality and persistence of the threatened Purple-crowned Fairy-wren Malurus coronatus in the Victoria River District, Northern Territory, Australia

The western subspecies of the Purple-crowned Fairy-wren (Malurus coronatus coronatus) is listed as vulnerable under Commonwealth and Northern Territory legislation. Declines in numbers are presumed to be due to loss and degradation of riparian habitats upon which it depends. In the Northern Territory portion of its range, the species nests, and mainly forages, in dense stands of tall River Grass (Chionachne cyathopoda). We examined the characteristics of River Grass-dominated habitats and wren group sizes, persistence and reproductive success at five sites in the Victoria River District (VRD), over a 3-year period (2000–2003). Sites spanned a range of cattle grazing intensity and history. River Grass height was greatest and frequency of bare ground the least at sites with the lowest grazing pressure. The persistence of adult fairy-wrens was greater in ungrazed than in grazed sites. In the second year of the study, high densities of cattle were (unexpectedly) introduced to one of the designated ungrazed sites (Coolibah), allowing for a before-after-control-impact study. After cattle introduction, at Coolibah mean group size of fairy-wrens declined (from 3.0 to 2.2) and year-to-year persistence of adults declined severely (from 89% to 24%), whereas on ungrazed sites, mean group size increased or remained constant and persistence of adults remained unchanged over the same period. This study demonstrates that grazing by cattle in the VRD riparian habitats detrimentally affects habitat quality and some population parameters for Purple-crowned Fairy- wrens. We suggest that these effects have potential long-term negative effects on the status of this vulnerable subspecies.

Callistemon purpurascens: a new and threatened species from the Blue Mountains region, New South Wales, Australia

Callistemon purpurascens SM Douglas, S David & P Wilson is described from the Blue Mountains region in Central Tablelands Botanical Division of New South Wales, Australia. The conservation status of this taxon is considered with the conclusion that it should be assessed as Critically Endangered under both state and Commonwealth legislation.