Cait Storr

This article retraces the role of sub-imperialism in the formation of the Australian state as a subject of international law. The discourse of sub-imperialism developed in the late nineteenth and early twentieth centuries as a means of characterising the British self-governing Dominions’ uncertain status in the international order, and drew explicitly on the United States Monroe Doctrine. The article revisits the significance of sub-imperialist posturing at two critical junctures in the historical formation of the Commonwealth of Australia. The first is the formalisation in the early 1880s of the movement toward federation of the Australasian colonies as a response to perceived British acquiescence to German imperialism in the Western Pacific. The second is the Commonwealth government’s attempt during the Versailles negotiations of 1919 to annex to its territory the occupied German Pacific territories of New Guinea and Nauru. The principal argument made in this article is that attempts to establish an Australian sub-empire in the Western Pacific were fundamental both to the federation movement and the recognition of Australian sovereignty in international law. The article concludes that Australian sub-imperialism warrants greater attention both in accounts of the history of Australia’s transition from self-governing Dominion to sovereign status in international law, and in accounts of contemporary Australian foreign policy in the Pacific region.

International law has thus far proven limited as a tool for securing environmental justice for those marginalized by the international order. This essay reviews two recent publications that respond to the disproportionate effects of global environmental crisis on the marginalized within the framework of international law. It suggests that while both texts are important works of scholarship, each leaves an impression that international law, at least as we know it, is inadequate to the task of framing meaningful responses not only to the disproportionate effects of environmental crisis on the marginalized, but to that crisis itself. It is argued that the difficulty in utilizing international environmental law as a means of addressing problems of global environmental degradation may be better conceived not as a weakness in international environmental law per se, but as a symptom of the severance of human and natural environment that undergirds the logic of international law. Acknowledgment of the relationship between foundational concepts of international law and environmental exploitation invites sober consideration of the limits of international law as a framework for generating responses to global environmental crisis, and its disproportionate effect on the marginalized.

The centrality of extractive industry to Australian political and economic history is well known.  Extractive interests have long occupied a dominant position in the Australian policy landscape, and the prioritisation of extractive interests in Commonwealth policy has been a perennial theme of political debate at both state and federal levels. This chapter revisits the prioritisation of extractive interests in Australia’s carriage of international treaty negotiations, with a focus on Australia’s position on resource exploitation in the Antarctic, the international seabed, and outer space between 1958 and 1991. The chapter argues that the Commonwealth’s foundational objective across all three treaty frameworks was to secure and expand the field of sovereign resource rights, and its rights to grant and profit from extractive interests. The chapter concludes that this history not only tempers contemporary popular narratives that figure Australia as a ‘good international citizen’ with respect to Antarctica, the seabed and space; it has predictive value with respect to Australia’s likely conduct as the treaty regimes governing all three domains come under renewed strain.

By Sara Dehm and Cait Storr

The administration of migration and asylum applications is one of the most politicised powers of the Australian government. Not only are the administrative decisions of the Department of Immigration and Citizenship frequently on the front pages, but the processes of appeal — via the Refugee and Migration Review Tribunals through to the Federal and ultimately the High Court — can also expose the sometimes hazy character of the separation of powers in Australia.

Judicial review of administrative decisions on migration and refugee status is now one of the key drivers of Australian administrative law. For instance, the question of how much scope the courts have to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal, particularly in the exercise of their respective statutory discretions as delegated under the Migration Act 1958 (Cth), has generated a significant line of High Court cases on procedural fairness and the fair hearing rule. The legislature has made numerous attempts to limit the application of common law principles of procedural fairness to various delegated powers of the Migration Review Tribunal. Whether and to what extent common law principles of unreasonableness apply to such delegated decision-making has emerged as an area of key contention in these cases.

The case of Bugmy v The Queen provides a rare opportunity for the High Court to offer guidance on how an offender’s Aboriginality should be incorporated into the set of considerations a judge must balance when passing sentence. Principled justifications for considering Aboriginality as a potential mitigating factor are not new to Australian case law, however the High Court — as is often the case with substantive issues of criminal law — has not had the opportunity to clarify the principles that should pertain to any such consideration. The 1992 decision in Fernando v The Queen (1992) 76 A Crim R 58 by the New South Wales Court of Criminal Appeal (NSWCCA) has provided the clearest guidance to judges seeking to uphold the common law notion of ‘individualised justice’ for criminal offenders. The Fernando principles are in effect an elucidation of an existing common law requirement to consider the subjective circumstances of the offender. They do not, however, shed much light on how this mindfulness for an offender’s Aboriginality should interact with other basic goals of sentencing, such as consideration of the objective seriousness of the offence, and the need for deterrence. This is the key issue in Bugmy v The Queen.