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The Structure and Nature of Australian Environmental Law

Published online by Cambridge University Press:  24 January 2025

Douglas J. Whalan
Douglas J. Whalan*
Affiliation:
Law School, Australian National University
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Abstract

Constitutional authority over resources and environmental questions resides principally in the States in Australia, but there are many powers which the Federal Government can develop, either alone or together with the States, in working out national policies in these areas. Although the constitutional issues are important, resolution of land use problems is fundamentally a matter of competition for power and authority within the political system.

Professor Whalan suggests four stages in the development of environmental law: (a) totally resource-oriented statutes with possible overlaps and clashes between separate uses; (b) integration of the separate codes and the introduction into those codes of environmentally oriented protective provisions; (c) the enactment of statutes directed towards a specific environmental problem or problems; and (d) the development of overview bodies with advisory and supervisory functions to which the protective responsibilities may be added.

In these statutory moves towards macro-environmental law in Australia, the Courts have been given a very limited role and it is argued that much of the law is not normative in character but procedural, administrative and discretionary. In very many cases, ultimate control is political rather than judicial.

Type
Research Article
Information
Federal Law Review , Volume 8 , Issue 3 , September 1977 , pp. 294 - 318
Copyright
Copyright © 1977 The Australian National University

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References

1 A shorter version of this paper was delivered to the First Canberra Law Workshop on the Law of Property held in the Department of Law, Research School of Social Sciences, Australian National University, on 28 May 1977. I want to say thanks very much to Douglas Fisher, with whom I have shared the teaching of Environmental Resources Law since 1975, and to our classes of 1975, 1976 and 1977. Geoffrey Lindell was also kind enough to read parts of the article for me. Shall I just say that, if there are any useful ideas in the paper, they all helped me to develop them-the mistakes are all my own?

2 This is not to say that the great individual landowners did not wield enormous political power as well.

3 See, e.g., Whalan, , “Immediate Success of Registration of Title to Land in Australasia and Early Failures in England” (1967) 2Google Scholar New Zealand Universities Law Review 416, 424 and 436, where it is suggested that in the middle of the nineteenth century at least two-thirds of land in England was subject to settlements.

4 There were more than 4000 Acts between 1760 and 1845. Most were private Acts but from 1801 onwards there was a series of public Acts which culminated in the Act of 1845 which abolished the need for private legislation.

5 In New South Wales v. Commonwealth (1975) 8 A.L.R. 1 the validity of the Seas and Submerged Lands Act 1973 (Cth) was upheld by the High Court. The Court was unanimous so far as the continental shelf was concerned and a majority upheld the Act's validity so far as the coastal sea was concerned.

6 The States Grants (Soil Conservation) Act 1974 is a good example of this.

7 The Environment Protection (Impact of Proposals) Act 1974 and the Great Barrier Reef Marine Park Act 1975 tend to illustrate this characteristic.

8 A much more comprehensive consideration of potential authority for Commonwealth intervention to deal with industrial pollution is to be found in a recent most enlightening article which came into my hands when the seminar paper predecessor to this article was in draft: Opie, , “Commonwealth Power to Regulate Industrial Pollution” (1976) 10 Melbourne University Law Review 577Google Scholar.

9 Teori Tau v. The Commonwealth (1969) 119 C.L.R. 564.

10 (1958) 99 C.L.R. 132.

11 (1975) 8 A.L.R. 1.

12 The Report of the Committee of Inquiry into the National Estate (1974), 224 states that the Commonwealth owns about one million hectares in the States.

13 The matter is discussed in R. v. Burgess; ex parte Henry (1936) 55 C.L.R. 608 by Latham, C.J. and Starke, , Dixon, , Evatt, and McTiernan, JJ., in Airlines of New South Wales Ply Ltd v. New South Wales (No. 2) (the Second Airlines Case) (1965) 113 C.L.R. 54Google Scholar by Barwick, C.J., and in New South Wales v. Commonwealth (1975) 8 A.L.R. 1Google Scholar by Barwick C.J. and McTiernan, Gibbs, Stephen and Murphy JJ.

14 (1908) 8 C.L.R. 330.

15 (1971) 124 C.L.R. 468.

16 The possibility that such companies were not trading corporations was suggested by Isaacs J. in Huddart Parker and Co. Pty Ltd v. Moorehead (1908) 8 C.L.R. 330, 393 when he said that a distinction must be drawn between trading corporations and corporations constituted for “municipal, mining, manufacturing, religious, scholastic, charitable, scientific, and literary purposes”. It is, however, possible that the High Court will not follow that view. In Strickland v. Rocla Concrete Pipes Ltd (1971) 124 C.L.R. 468 the assumption that companies such as Rocla and Monier, which manufacture concrete products, were trading corporations does not appear to have been questioned in the judgments of their Honours. See further R. v. Trade Practices Tribunal; ex parte St George County Council (1974) 130 C.L.R. 533 the judgments of Menzies J., 552-553, and Gibbs J., 562.

17 (1908) 6 C.L.R. 41.

18 (1920) 28 C.L.R. 129. In Fairfax v. Federal Commissioner of Taxation (1965) 114 C.L.R. 1 Kitto and Taylor JJ. were of the clear opinion that Barger's case was wrongly decided; but, although Barwick C.J., and Menzies and Windeyer JJ. fell short of expressing the same opinion, the approach they adopted cast doubt on the correctness of that decision.

19 (1976) 9 A.L.R. 199; 50 A.L.J.R. 570.

20 Id. 215; 579.

21 (1945) 71 C.L.R. 237.

22 (1975) 7 A.L.R. 277.

23 (1976) 9 A.L.R. 199; 50 A.L.J.R. 570.

24 S. 71(4)(a), which provides that regulations may be made under powers with respect to “the government of a Territory” is also based on s. 122 as is s. 7(1)(a).

25 (1975) 8 A.L.R. 1. This decision also provides a constitutional base for the definition of “area” contained in s. 7 (1) (b) and (c).

26 So, too, is s. 7(1 ) (d) .

27 Australian National Airways Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 29.

28 S. 71(4 )(b) bringing into play s. 52(i) of the Constitution.

29 S. 71(4)(f) bringing into play s. 5l(x) of the Constitution.

30 S. 71(4) (g) bringing into play s. 51(xi) of the Constitution. It is interesting to note that a provision in the Bill was dropped from s. 71 of the Act which provided for the use of the Federal Parliament's power with respect to “external affairs, including the implementation of agreements between Australia and other countries”.

31 (1976) 9 A.LR. 199; 50 A.L.J.R. 570.

32 See Austin, , “Murphyores Incorporated Pty Ltd v. The Commonwealth of Australia” (1977) 8 Federal Law Review 242; and Fisher, ''The Federal Environment Protection Procedures” (1977) 8 Federal Law Review 164, 185CrossRefGoogle Scholar.

33 (1976) 9 A.L.R. 199, 201; 50 A.L.J.R. 570, 571.

34 New South Wales is used for illustration often in this paper. It is suggested that other Australian jurisdictions also follow the pattern outlined here.

35 E.g., by the Forestry Amendment Act 1935, s. 5(1) (f), s. 19A was added to the Forestry Act 1916 and it permitted national forests to be taken out of the operation of the Act. Again, s. 3 of the Forestry Amendment Act 1935 added s. 25A to the principal Act thus providing for a flora reserve for the preservation of native flora.

36 Two of them are mentioned in the immediately preceding footnote.

37 Very similar provisions to these are enacted in ss. 93-96 of the Coal Mining Act 1973 (N.S.W.) also comprising Part VII Protection of the Environment.

38 (1975) 5 A.L.R. 513.

39 Id. 519.

40 Id. 524-525.

41 Id. 525.

42 Id. 523.

43 For instance, the Commission is now responsible for administering the Clean Air Act 1961 (see New South Wales Planning and Environment Commission Act 1974, s. 22 and Schedule), the Clean Waters Act 1970 (see New South Wales Planning and Environment Commission Act 1974, s. 22 and Schedule) and the Noise Control Act 1975 (by the terms of the Noise Control Act 1975 itself).

44 Environment Protection Act 1970 (Vic.); Environmental Protection Act 1971-1975 (W.A.); State and Regional Planning and Development, Public Works Organization and Environmental Control Act 1971-1974 (Qld); Environmental Protection Council Act 1972 (S.A.); and Environment Protection Act 1973 (Tas.).

45 (1868) L.R. 3 H.L. 330.

46 A paradoxical illustration of this has occurred in Papua New Guinea. There has been a move away from the introduced English common law back towards customary law; this is effected in some Papua New Guinea statutes which provide that customary law is to be applied in the courts in place of the common law.

47 Italics added.

48 Clark, , “Redcliff and Beyond: The Commonwealth Government and Environ- mental Planning” (1975) 5 Adelaide Law Review 165, 169Google Scholar.

49 Environment Protection (Impact of Proposals) Act 1974, s. 6.

50 Id. s. 8.

51 Id. s. 11(1).

52 Id. s. 9.

53 Since delivering the seminar paper version of this note, I have seen Hood Phillips, “A Constitutional Myth: Separation of Powers” (1977) 93 Law Quarterly Review 11 and Dahrendorf, “A Confusion of Powers: Politics and the Rule of Law” (1977) 40 Modern Law Review 1. My arguments seem to coincide with some of the views expressed in those articles.

54 For these purposes the “our” refers to my domicil of choice.

55 [1976] 2 N.Z.L.R. 615.

56 Id. 623, per Wild C.J.

57 (1975) 49 A.L.J.R. 22.

58 Id. 26.

59 When the proposed new Western Australian mmmg legislation, which has been under consideration by both Liberal-Country Party and Labor Governments since the mining boom of the late 1960s, was postponed in 1975, it was interesting to see a report that one of the most potent extra-parliamentary objections was that the Bill conferred too sweeping Ministerial and departmental discretions. Indeed, it was argued that “most of the powers [should be] subject to judicial decision, as high as the Privy Council, if possible”: Australian Financial Review 21.8.75. No one seemed to object to the fact that the Privy Council had functions other than its judicial ones!