Jürgen Bröhmer

Sustainability (the term and the concept) permeates practically every perspective and field of study. Whatever concrete content one can ascribe to it, when it comes to translating that content into tangible reality, legal and regulatory decisions will be one major tool to achieve that. The term and concept of sustainability are closely linked to the environment and its protection. Threats to the environment in general and environmental subsystems, be they the climate, the oceans, the pollution of water, the atmosphere, or the food chain, are often global and not organized along artificial borders that delineate governance systems. The result is a dilemma common to many transnational policy challenges. Transnational governance systems either do not exist, are too weak, or face legitimacy problems. Therefore, policy challenges cannot be effectively addressed (governance deficit). Transnational governance deficits also have repercussions domestically, where this inability to deal with such challenges becomes an argument for restraint at home. This chapter discusses climate change, international trade, and regional integration to illustrate transnational decision-making difficulties. The European Union example shows how even closely related, deeply integrated regional governance entities can struggle to break the confines of national democracies. Comprehensive answers are difficult, if not impossible, to find. Efforts of transnational federalization or increased judicialization (legalization) and subsequent litigation to achieve broader transnational governance outcomes are limited in what can be achieved.

This paper attempts to analyse and explain the legal (regulatory) and policy framework concerning green energy in Australia. Such frameworks depend on the political setting of the state in which the framework is defined. Australia is somewhat different in that regard than many other countries because a combination of factors makes Australia a potential candidate to perhaps become a "green energy superpower" in the sense of being able to produce and export large amounts of green energy at competitive prices. The production of green hydrogen as a transport and storage solution (and storage derivatives such as ammonia) is a prime example. Green energy and hydrogen have therefore been taken up actively by commercial interests. The regulatory arm of government, by contrast, is relatively slow. Most efforts are invested in infrastructure, industry development, and international instruments, mainly regarding developing supply chains around hydrogen. Crucial matters around creating a circular economy around large storage batteries are in their infancy at best. Some tax incentives are provided, and a core constitutional law question is currently pending at the High Court around the constitutionality of road charges imposed by Australian states on electric and other zeroemission vehicles.

The relationship between Australia, the European Union and member states of the European Union have a long history based on shared values, democratic political systems, and a strong foundation in the rule of law. Historically, the ties to the United Kingdom have been and remain special, not least because Australia was and, albeit to a much lesser degree, can still be understood as a (now) fully sovereign partial reflection of the UK in the southern hemisphere, which whom it shares a language, a legal history based on the common law, a colonial past and, not least, a head of state. But there are close ties with other countries as well. France is a power with substantial interests in the greater area around Australia. France is also a close strategic security partner. The relationship with the EU has been problematic in the past because of profound differences of opinion concerning agriculture. UK membership in the EU initially jeopardized Australia’s trade relationship with the UK. Brexit is seen to create new opportunities albeit at a much smaller scale than the concerns raised by the UK’s joining the EEC/EU. Relative to Australia’s primary natural resources of iron ore and coal and relative to the growth of China as a market for Australia’s natural resources, including agricultural products, the UK, and the EU, play a significantly smaller role today. This paper attempts to present an overview of the various bi- and multilateral relationships that are the foundation for the envisaged AU-EU FTA.

The notorious political theorist Carl Schmitt is quoted as stipulating that "sovereign is (s)he who has the power to declare a state of emergency (Hoffmann 2005, p. 171). Whereas the quote tends to capture the attention of the reader and to provoke some thought, it already contains an important assumption: that the declaration of a state of emergency removes all constraints and elevates the perpetrator to a state above responsibility and accountability, as the obsolete understanding of sovereignty might have implied and as Louis XIV tried to express when he claimed: "L'État, c'est moi" (Delahunty and Dignen 2010). Looking at the legal framework of combatting the COVID-19 in Australia, one could be forgiven for thinking about Schmitt or Louis in this context because legally, the battle against the virus is very much one conducted on executive emergency powers. However, as will also become apparent, these powers, though seemingly sweeping and only weakly controlled legally, are nonetheless not of the sort that would remove the executive from all accountability and responsibility.