Australia

• Author: John Taberner
• Pages: 885-908

CHAPTER 45

Australia

JOHN TABERNER

I. Introduction to the Australian

Environmental Legal System

In Australia, environmental law is a diverse field. The chief reason for this is

Australia’s federal system of government. Under the Australian Constitu-

tion, the Federal Parliament has a limited (but overriding) legislative author-

ity and the state parliaments are constrained principally by the scope of

federal legislation in force from time to time. The “environment” is not listed

in the Australian Constitution as a power on which the Federal Parliament

may legislate. As a result, the demarcation of legislative authority in the field

of environmental law in Australia between the federal and state parliaments

is complex.

The demarcation of environmental legislative authority is clearest in rela-

tion to environmental legislation operating outside Australia or in respect of

the Australian territories. The Australian Federal Parliament has a plenary

power to legislate for a territory1 and to make laws with respect to matters

and things geographically outside Australia.2 There are two principal limita-

tions on this power, namely, the limitations resulting from

1. The limited grants of territorial self-government effected by the

Northern Territory (Self-Government) Act 1978 (Cth), the Norfolk

Island Act 1979 (Cth), and the Australian Capital Territory (Self-

Government) Act (Cth); and

2. The “offshore settlement” effected with the Australian States by the

Seas and Submerged Lands Act 1973 (Cth), the Coastal Waters (State

Powers) Act 1980 (Cth), the Coastal Waters (State Title) Act 1980

(Cth), the Coastal Waters (Northern Territory Powers) Act 1980 (Cth),

the Coastal Waters (Northern Territory Title) Act 1980 (Cth), and the

Fisheries Management Act 1991 (Cth).

The demarcation of legislative authority is less clear in relation to federal

environmental legislation operating within the states and territories. In the

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absence of an explicit power over the environment, federal capacity to enact

such environmental legislation is only derivative, arising indirectly in other

express or implied federal powers in the Australian Constitution. Sections

51(i), 51(xx), and 51(xxix) of the Australian Constitution3 are the commonly

used sources of indirect power over the environment,4 and each of these

sources has peculiar capacities and limitations,5 and is subject to express

limitations in the Australian Constitution.6

Despite the complex distribution of legislative power, environmental

laws are familiar in Australia. The common law of Australia contains rudi-

mentary forms of environmental control. The tort actions in nuisance and

trespass are of ancient origin. The tort action in negligence is more recent.

Other forms of environmental control available at common law include those

effectuated by means of contract, by restrictive covenants over land, and by

easement. However, the most important environmental controls in Australia

arise by way of legislation. Three broad categories of environmental legisla-

tion are now discernible in each Australian jurisdiction:

1. Legislation concerned in general with land use and environmental

impact assessment;

2. Legislation concerned in general with environmental protection,

including pollution control and regulation of the use of environmen-

tally hazardous substances; and

3. Legislation concerned with the conservation of natural and cultural

resources.

A fourth category of legislation has been recently added: in July 2012,

comprehensive federal carbon pricing legislation came into effect. Although

some environmental legislation was enacted prior to 1970 in state legisla-

tures7 and in the federal legislature,8 environmental legislation has been

enacted in Australia only since 1970. Since then, all Australian states have

enacted environmental legislation in most categories described above, and

the Australian Federal Parliament has enacted legislation in all of them. A

substantial bulk of legislation has developed.

II. Air and Climate Change

A. Air Pollution Control

Except as regards carbon emissions, Australian legislation controlling air

pollution has emerged only at the state and territory level. All states and ter-

ritories have, and have had for some time, a wide range of environment

protection legislation covering, inter alia, air pollution control. The principal

legislation in each state is

• Protection of the Environment Operations Act 1997 (NSW) (POEO

Act)

• Environment Protection Act 1970 (Victoria state (VIC))

• Environmental Protection Act 1994 (Queensland state (QLD))

• Environmental Protection Act 1986 (Western Australia state (WA))

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