"Prometheanism" is the belief that humans must dominate and reshape nature as its master. This article examines how this environmental perspective informed the drafting of Australia's Constitution. To begin, Prometheanism became normalised in Britain over centuries. By the time of the Constitution's creation, it was deeply ingrained in colonial Australian law and policy. The framers, therefore, incorporated Promethean ideas into the Constitution without much critical thought. Prometheanism, however, is not a neutral environmental position. It conflicts with Aboriginal and Torres Strait Islander people's traditional views of nature and sits uncomfortably with the sensitivities to nature needed to address climate change and other emerging ecological crises. For these reasons, while my focus is providing a historical account of how Promethean assumptions animate the Constitution, this article concludes with an assessment of how the constitutional entrenchment of these assumptions impact First Nations people and the environment today.
One class of man-made chemicals that is of a particular concern due to their omnipresence in the environment are man-made polymers and their impact. This article seeks to rectify the current analytical lacunae of polymer regulation which remains comparatively unexamined and undertheorised. It will do so by first considering the problem of defining polymers from a regulatory standpoint. It then provides an overview of the environmental and health issues associated with our overreliance on polymers. It then considers the current lack of research and data on polymers and the implications from a regulatory perspective and asks whether there is currently a uniform approach to identification of polymers. The article then critically examines the problem of competing definitions of the term. The article then looks at four jurisdictions: the European Union, the United States, China and Australia, outlining their approaches to the issue and seeking to generate insights into how to improve regulatory approaches. It then details concerns around the potential harmonisation of polymer regulation at the global level. Lastly, the article considers how best to revise and improve the current regulatory frameworks overseeing polymers.
The conservation of biological diversity is dependent upon the availability of reliable, current and accessible data. Remote sensing technologies, which can identify, measure and analyse objects, areas and phenomena in the environment, human activities in the environment and the impacts of human activities on the environment, are increasingly being relied upon to obtain this data. The analysis of the large data sets produced by remote sensing technologies is also now commonly undertaken by artificial intelligence (AI). When paired together, remote sensing and AI generate a powerful means of producing readily accessible data for making informed and useful biodiversity conservation decisions. This article maps the most commonly used remote sensing and AI technologies and how these technologies have been used in biodiversity conservation. The article considers how such technologies are used in evidence in court proceedings and assesses potential issues relating to the reliability and authenticity of remote sensing data.
What do seabirds and the insurance industry have in common? When it comes to plastic, they are the new canaries in the coalmine. Plastic pollution and marine litter pose significant risks to human health and the environment and create increasingly challenging and costly ecological, social and economic risks. With global plastic production increasing exponentially, satisfying our insatiable appetite for plastic while limiting environmental damage has proved incredibly challenging for regulators at both a national and global level. This essay explores the importance of marine biodiversity and highlights the concerning health effects of microplastics for human health, which should act as a wakeup call for decisive action. As scientific consensus builds linking the harmful effects of plastic to human health and legal doctrines develop, corporate liabilities and risks are increasing significantly. To date the regulatory landscape has failed to address the sources and cumulative impacts of plastic pollution. Implementing effective change requires a radical and fundamental transformation of socioeconomic values and how we act, value, and think about the natural world. Appropriate legislative reform requires a holistic approach which reconceptualises the focus of plastic as waste and targets plastics across all stages of its life cycle, from production to disposal.
Greenwashing refers to the use of false, deceptive, or misleading claims by organisation regarding their environmental practices. In light of its increasing prevalence, an Australian Senate inquiry into Greenwashing was launched, due to report in late 2025. This article examines the mechanisms through which governments, regulatory bodies, and courts are responding to greenwashing, drawing on both local and international examples. It explores the consequences of greenwashing for consumers and public trust, and highlights current gaps in regulatory oversight. The article makes the case for legislative reform to establish clearer, enforceable standards for environmental claims and ensure greater accountability.
Greenwashing has been an ongoing enforcement priority for the Australian Securities and Investments Commission (ASIC) since 2022. Mobilising the consumer protection regime and its regulatory powers under the Australian Securities and Investments Commission Act 2001 (Cth), the corporate watchdog seeks to deter entities from making unsubstantiated environmental, social, and governance claims that distort market information and undermine investors' ability to make informed decisions. However, analyses assessing the impact of ASIC's interventions remain limited. This article responds to that gap. It identifies ASIC's greenwashing regulatory actions as a rising trend in climate litigation in Australia and considers the extent to which these actions demonstrate ASIC's strengths and weaknesses in its role as a climate litigant. Focusing on ASIC's greenwashing interventions from 2022 to early 2025, the article unpacks its high-profile proceedings against Mercer Superannuation (Australia) Limited, Vanguard Investments Australia Ltd, and LGSS Pty Ltd, placing them within the broader context of regulatory enforcement and climate change.
Western Australia has shunned two important environmental legal concepts that have gained currency on the east coast and could be important for responding to climate change: a "global carbon budget" analysis in environmental impact assessment of fossil fuel projects, and water access entitlements as perpetual shares in a consumptive pool of a water resource defined in accordance with a statutory water plan. The Minister for Environment (WA) implicitly rejected the global carbon budget analysis when determining appeals against the assessment report of the North West Shelf Project Extension in November 2024. The Minister for Water (WA) implicitly rejected the share entitlement concept when announcing in December 2023 that reform of our antiquated water resources law was not necessary. The political reasoning for rejecting these two concepts was legally fallacious. There is still the opportunity to adopt these concepts to mitigate and adapt to climate change.
Climate-related disasters increasingly threaten lives, economies and ecosystems, necessitating effective risk management. While insurance has traditionally funded post-disaster recovery, it also plays a role in risk signalling, adaptation incentives and planning. The 2015 Paris Agreement positioned insurance as a key tool in climate disaster management, yet a decade later, its effectiveness remains uncertain. This article considers case studies from Australia, the United States, and the United Kingdom to assess whether insurance has met expectations in terms of both compensating victims and incentivising climate risk adaptation. These examples demonstrate the affordability issues when insurance is left to the free market (Australia), the inefficiencies of bold government intervention when not matched by mitigation efforts and weakened by political pressures (the United States' National Flood Insurance Program), but also the innovation, advocacy and stakeholder engagement that can result from a clear, government-ordained mandate for the private sector (the United Kingdom's Flood Re).
This article examines the Recommendations of the Taskforce on Nature-related Financial Disclosures (TNFD Recommendations) one year on from their launch. Without strong government action, the private sector plays a critical role in halting and reversing the loss of nature. The TNFD provides voluntary guidance for companies and financial institutions on how to report nature-related issues, using disclosure and transparency to improve organisational responses to nature-based risks. The TNFD improves on its climate counterpart, the Task Force on Climate-related Financial Disclosures (TCFD), in enabling disclosure of both impacts on and from nature and biodiversity loss. However, the TNFD also has significant shortcomings. Measurement of "nature" is more complex and site-specific than climate impacts. The concept of "nature-positive" is ill-defined, creating a risk of organisational greenwashing. Large corporate interests have confined the framework's ambition and scope. These shortcomings should be addressed in future regulation making nature-based disclosures mandatory.
The problem of plastic pollution is a global problem requiring a global solution. The prospect of an international plastics treaty was promising but progress has been slow. While international discussions may have stalled, governments around the world are facing pressure to lead the move towards a circular plastic economy. In Australia, government attempts to regulate waste including plastic waste at a national and state level have transitioned from end-of-life processes to a more holistic or circular approach. This article analyses two of the regulatory tools used by the Australian governments to push the country towards a circular plastics economy, namely "command and control" laws (ie bans) and product stewardship schemes. Noting critical shortcomings in Australia's current plastics strategy, the author implores the Federal Government to boldly spearhead a clear drive towards a circular economy for plastics with the support of the state and territory governments.
This article discusses the intervention by lawyer MC Mehta in bringing a significant environmental issue before the Indian Supreme Court in 1984; namely, the damage caused to the Taj Mahal because of pollution. This issue has continued to attract legal action since then, as the threats to the Taj Mahal have persisted over the decades. The Taj Mahal case is discussed in the light of its substantive contributions to public interest law and how this was progressed in India via concepts such as the precautionary principle, intergenerational equity, polluter pays and sustainable development. It is important to acknowledge and recognise the major contribution of lawyer activists like MC Mehta in shaping the orientation of the Indian Supreme Court regarding environmental issues and on environmental case law generally.
The BBNJAgreement, an international agreement promoting the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, opened for signature on 19 June 2023. The BBNJ Agreement is not yet in force. Australia has signed, but not yet ratified the agreement. This article considers the key features of the BBNJ Agreement and the risks and benefits for Australia in ratifying. Potential risks include obligations to share benefits, increased costs and regulatory requirements, and the uncertainty surrounding how the provisions of the agreement will be interpreted and interact with the current regime. There are also significant benefits: the agreement promotes the preservation of the marine environment (which is of particular importance to Australia and the growth of the blue economy) and provides some much-needed clarity by addressing gaps in the current regime. It is argued that Australia should ratify the BBNJ Agreement as a matter of priority.
With increased population, coupled with growing levels of housing density and associated industrial activities, local natural environments are increasingly exposed to consequent stressors and pressures. Environmental policies, Acts and guidelines across states and territories are inconsistent and, in many cases, fail to address and mitigate growing risks to biodiversity and the environment. This article explores the Victorian government's approach which is an exemplar of jurisdictions which have included the general environmental duty (GED) principle where polluters have increased responsibility to avoid harm, and whether there is a need for a similar approach to be adopted by the West Australian (WA) government. Using the case study of the Beenyup wastewater treatment plant that is within a Class A marine park and the Sepia Depression borders, another sensitive and biodiverse marine park, the article concludes the need for integrating the GED into WA's environmental protection framework and indeed any jurisdiction without GED.
The recent 2025 federal general election was set to determine Australia's nuclear future, with the leading political parties taking opposite stances on whether Australia should pursue electricity generated by nuclear fission. Understandably, the debate has to date centred largely around the question of whether Australia "should" pursue nuclear power, rather than considering how it might be regulated. If Australia indeed pursues a nuclear dawn, the legal moratorium on nuclear electricity will need to be lifted and replaced with a comprehensive regime. Considering the experience of Australian regulation of small-scale nuclear industries under particularly the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth), and the regulation of nuclear electricity by comparable states like the United States, this article explores some of the legal pitfalls and opportunities that Australia will encounter if it needs to develop a regulatory scheme for nuclear electricity, and calls for urgent academic and governmental consideration of these issues.
There are great expectations that the proposed new plastic treaty will be able to address the fundamental challenges of plastic pollution. However, experience with other treaties (notably the convention on biological diversity) suggest that there will be many difficult impediments to successful implementation. This article highlights a number of these, and suggests that far more attention will need to be paid to practical implementation that has so far been indicated in the negotiations.
Water theft through unauthorised take undermines Victoria's water regulation framework, reducing water security for lawful users and the environment. Despite a strong compliance culture, enforcement measures under the Water Act 1989 (Vic) fail to adequately address the commercial advantage gained by offenders, particularly irrigators who exploit water price fluctuations. Current penalties achieved in prosecutions often fall below the financial benefits of unauthorised take, weakening deterrence. Unlike other environmental offences, Victoria lacks a clear statutory mechanism to recover monetary benefits from illegal water take. This article examines the shortcomings of existing prosecution tools, comparing Victoria's approach with New South Wales, where higher penalties are imposed. It argues for the introduction of a monetary benefits order in the Water Act 1989 (Vic), modelled on similar provisions in environmental law. Implementing such a provision would ensure that prosecutions for unauthorised take can effectively deter potential offenders and maintain the integrity of Victoria's water laws.
This article sets out recent developments in environmental law reform at the national level, in relation to the Federal Government's "Nature Positive" agenda. It is adapted from submissions made to Federal Senate inquiries on the Nature Positive (Environment Protection Australia) Bill 2024 (Cth); Nature Positive (Environment Information Australia) Bill 2024 (Cth); and Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (Cth). The authors make recommendations to improve the Bills, particularly in relation to the governance, transparency and functions of proposed new institutions. Further recommendations are aimed at halting the extinction crisis, fixing community trust in environmental decision-making, and protecting nature from dangerous climate change. A post-script notes the February 2025 removal of these Bills from the Parliamentary notice paper, which represents a significant and concerning step backwards for nature law reform in Australia.
This article examines the legal recognition of carbon property rights across Australian States, focusing on Western Australia's innovative framework under the Carbon Rights Act 2003. Unlike other States, which offer limited recognition, Western Australia treats carbon rights as a separate statutory land interest, enhancing legal clarity and market potential. By comparing different state approaches, the article highlights the need for a unified national framework that can effectively regulate carbon sequestration, carbon trading, and environmental sustainability.
Law and policy are imparting increasing significance to encouraging the development of green hydrogen technology in Western Australia. Due to Western Australia's high levels of solar irradiation and wind energy, many green hydrogen developments are set to take place on First Nations land in Western Australia. Agreements between renewable hydrogen proponents will be made pursuant to the Native Title Act 1993 (Cth), as has been the case in the mining industry in Western Australia. Drawing on the experience of agreement-making in the mining industry, this article examines whether there is potential for agreement-making that encourages benefit-sharing with First Nations communities in green hydrogen developments in Western Australia. This article argues that without amendment, current laws and policies that regulate green hydrogen will inevitably be used as a vehicle to limit benefit-sharing.
An efficient market model in biodiversity credits is arguably the Holy Grail of environmental conservation and protection in the modern era. The Nature Repair Act 2023 (Cth) (Act) establishes a national voluntary market in biodiversity certificate trading with the aim of enhancing biodiversity conservation. The Act represents an opportunity to trial a national biodiversity market in a commercial context. An efficient biodiversity credit market requires strong supply and demand for biodiversity credits and recognition and acceptance of property rights in natural capital, all operating under strict market rules to ensure an equitable and efficient trading environment. For a voluntary biodiversity credit market to work, a rigorous compliance and assurance system is essential to maintain market integrity and enhance biodiversity certificate value. This article examines the Act and the biodiversity trading market it creates. A focus is on analysing what underpins supply and demand for biodiversity certificates to ensure a functional biodiversity credit market. An efficient biodiversity credit market requires clear recognition of property rights and low transaction costs on credit trades. What is also essential is efficient measurement and compliance of additional biodiversity, plus strong incentives for those entering the market as buyers willing to purchase biodiversity certificates. There is also a need for government control of outcomes monitoring. Farmers should not be doing outcomes monitoring as they are not independent and are better characterised as beneficiaries of biodiversity certificates. This article considers all of these issues in relation to the Australian system of biodiversity certification and trading under the Act.
