Senate Environment, Communications, Information Technology and the Arts Committees

Commonwealth Environment Powers
Table of Contents

CHAPTER 2

COMMONWEALTH POWERS RELATING TO ENVIRONMENT PROTECTION AND ECOLOGICALLY SUSTAINABLE DEVELOPMENT

The Nature of Commonwealth Powers Under the Australian Constitution

2.1 The Committee begins the substance of this report by recognising that the Commonwealth Government derives the basis of its authority from the Australian Constitution. [1] As a constituent document of the Australian polity, the Constitution (and the interpretation given to its provisions by the courts) defines the institutions of Government, establishes their areas of operation, sets the outer limits to their functions, and prescribes their interrelationships.

2.2 Under the Australian Constitution the States have general, if not plenary, power to make laws except in relation to matters reserved exclusively to the Commonwealth. The Commonwealth has power to make laws on these exclusively Commonwealth matters, and otherwise only in relation to matters specifically listed in section 51, or elsewhere, in the Constitution. [2] On matters which the Commonwealth and States have concurrent power to make laws, Commonwealth law will prevail in the case of inconsistency. [3]

2.3 The Committee notes that the precise contours of the specific powers vested by the Constitution in the Commonwealth were not fixed and determined for all time at Federation. The Constitution is not a static parchment preserved under glass, but a living reality. Its intended purpose was and is to serve as a broad and flexible charter for the governance of Australia over many successive generations. [4]

2.4 In addition to the explicit constitutional method for alteration of the Constitution, [5] the meanings connoted by fixed Constitutional provisions have had a dynamic and responsive character when scrutinised by the Courts. This dynamic and responsive character takes account of historical, social, economic and political developments and influences. [6] As Windeyer J emphasised in the Pay-roll Tax case:

In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. [7]

2.5 With respect to the Commonwealth's legislative powers, Brennan J, in the Tasmanian Dam case stressed the need to interpret constitutional provisions broadly in order for the constitution to remain relevant in contemporary circumstances. Brennan recognised that:

[t]he complexity of modern commercial, economic, social and political activities increases the connections between particular aspects of those activities and the heads of Commonwealth power and carries an expanding range of those activities into the sphere of Commonwealth legislative competence. [8]

2.6 The Committee honours the wisdom and foresight of the framers of the Constitution in employing heads of power briefly described and general in scope. As a result, the Australian Constitution has proved remarkably adaptable in meeting today's needs. The fluid nature of the Constitution has allowed the Commonwealth Government to meet novel and complex environmental problems confronting the country in ways that were not contemplated when the division of Constitutional powers was settled. [9]

The Constitution and Commonwealth environment powers generally

2.7 While William McMillan and Alfred Deakin argued for a Commonwealth power over water conservation during the 1891 Constitutional Convention, [10] and John Clark petitioned the 1897 Convention to "draft in the Constitution, a clause protecting the Native Animals, as well as the flora and trees" [11], explicit treatment of governmental power to regulate activities in furtherance of environmental protection is almost wholly absent in the Australian Constitution.

2.8 The single environmental issue expressly addressed by the Constitution is the restriction on Commonwealth power to pass a law limiting "the reasonable use of waters of rivers for conservation or irrigation". [12]

2.9 The omission of environmental powers from the Australian Constitution is hardly surprising for at least three reasons. First, there was little if any environmental consciousness or concern with preservation of the environment at the turn of the 19th Century. [13] Concepts such as biological diversity were literally inconceivable. [14] Second, the framers of the Constitution, like the society in which they lived, would have viewed the natural environment as something to be tamed and exploited, rather than something requiring effective protection in order to conserve its many fragile ecosystems. [15] Third, to the extent that the framers thought of the environment as an issue requiring legislative attention, it would not have been viewed as a national matter. Land, mineral and other static resources would have been seen as an item of state concern. [16]

2.10 As a consequence of the omission of an express Commonwealth environment power, coupled with the formal division of legislative powers under the Constitution, [17] the traditional view has been that primary power over environmental issues resided with the States and that the Commonwealth only had very limited capacity to promulgate environmental laws. [18] Indeed, this has been the official view of various incarnations of the current Department of the Environment and Heritage as recently as 1982. [19]

2.11 The Committee stresses that the traditional view of limited Commonwealth powers over the environment has always been more imaginary than real; [20] more the result of uncertainty or a lack of political will than a real absence of power. [21] As early as 1970, when modern environmental awareness first blossomed in Australia, the Senate Select Committee on Water Pollution concluded, in relation to legislative regulation and control of water pollution:

"that the Commonwealth has, through a coalescence of Commonwealth power in the fields of taxation, defence, external affairs, meteorology, fisheries, quarantine, and other fields, sufficient legislative competence to lay down and enforce a national approach [to regulate water pollution] through Commonwealth legislation alone". [22]

2.12 As the 1970s progressed and social and political consciousness of the interconnected nature of the environment grew, the need for national [23] and international [24] approaches to major environmental problems became clear. As a consequence, the Commonwealth began to pass significant laws for environmental purposes on a wide range of issues under various heads of Constitutional power. These early environmental laws included what has been characterised as the four "cornerstones of national environmental policy" -- the Environment Protection (Impact of Proposals) Act 1974, the Australian Heritage Commission Act 1975, the Great Barrier Reef Marine Park Act 1975 and the National Parks and Wildlife Conservation Act 1975. [25]

2.13 A unanimous High Court held in an early challenge to the first generation of federal environmental law, that there was no Constitutional obstacle to the Commonwealth's use of various heads of power to regulate activities in order to protect and conserve the environment, even when those heads of power did not necessarily have any apparent environmental purpose behind them. [26] So long as Commonwealth environmental legislation rests on some head of power -- even though not directly touching the environment -- the Commonwealth is entitled to act for environmental reasons alone.

2.14 As a result, Commonwealth environmental legislation frequently relies on various heads of power in order to make certain that the federal legislation passes Constitutional muster. Key Commonwealth powers that have been used repeatedly to support legislation for environmental purposes include: the trade and commerce power (section 51(i)), the taxation power (section 51(ii)), the quarantine power (section 51(ix)), the fisheries power (section 51(x)), the corporations power (section 51(xx)), the race power (section 51(xvi)), the external affairs power (section 51(xxix)), the incidental power (section 51(xxxix)), the power over Commonwealth instrumentalities and public service (section 52), the power over customs, excise and bounties (section 90), the financial assistance power (section 96), and the territories power (section 122). [27]

2.15 The Commonwealth has also relied on the implied national power, which was recognised in the AAP case, [28] in order to pass environmental legislation appropriate to a national government. [29] The Commonwealth may also make administrative decisions for environmental purposes providing they are supported by a head of power - as, for example, in the Commonwealth's 1976 decision, under the Customs Act 1901 and regulations, to refuse approval to export mineral sands from Fraser Island. [30]

2.16 At present the Minister for Environment and Heritage administers 35 Commonwealth Acts, viz: [31]

Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Antarctic Marine Living Resources Conservation Act 1981

Antarctic Treaty Act 1960

Antarctic Treaty (Environment Protection) Act 1980

Australian Antarctic Territory Acceptance Act 1933

Australian Antarctic Territory Act 1954

Australian Heritage Commission Act 1975

Captains Flat (Abatement of Pollution) Agreement Act 1975

Endangered Species Protection Act 1992

Environment (Financial Assistance) Act 1977

Environment Protection (Alligator Rivers Region) Act 1978

Environment Protection (Impact of Proposals) Act 1974

Environment Protection (Sea Dumping) Act 1981

Great Barrier Reef Marine Park Act 1975

Great Barrier Reef Marine Park (Environmental Management Charge - Excise) Act 1993

Great Barrier Reef Marine Park (Environmental Management Charge - General) Act 1993

Hazardous Waste (Regulation of Exports and Imports) Act 1989

Heard Island and McDonald Islands Act 1953

Historic Shipwrecks Act 1976

Koongarra Project Area Act 1981

Meteorology Act 1955

National Environment Protection Council Act 1994

National Parks and Wildlife Conservation Act 1975

Natural Heritage Trust of Australia Act 1997

Ozone Protection Act 1989

Ozone Protection (Licence Fees - Imports) Act 1995

Ozone Protection (Licence Fees - Manufacture) Act 1995

Removal of Prisoners (Territories) Act 1923

Sea Installations Act 1987

Sea Installations Levy Act 1987

State Grants (Nature Conservation) Act 1974

Wet Tropics of Queensland World Heritage Area Conservation Act 1994

Whale Protection Act 1980

Wildlife Protection (Regulation of Exports and Imports) Act 1982

World Heritage Properties Conservation Act 1983

2.17 As environmental problems have grown in scope and complexity the traditional assumption of general, if not plenary, State authority over the environment has been discredited. [32] The Committee notes that the landmark decisions by the High Court in such cases as Murphyores Inc Pty Ltd v Commonwealth, [33] Commonwealth v Tasmania, [34] Richardson v Forestry Commission, [35] and Queensland v Commonwealth [36] have interpreted our Constitution in light of contemporary circumstances in order to establish that the Commonwealth Government can employ the large suite of Constitutional powers enumerated above in order to meet complex, major modern-day environmental problems.

2.18 A large number of submissions pointed out that the developments in Constitutional law over the past two decades have confirmed extensive Commonwealth power over the environment. [37] As Professor James Crawford has observed:

The lesson of a careful study of the last fifteen years experience is that the Commonwealth has, one way or another, legislative power over most large-scale mining and environmental matters. [38]

2.19 It is the view of the Committee that the Commonwealth Government has the Constitutional power to regulate, including by legislation, most, if not all, matters of major environmental significance anywhere within the territory of Australia. The panoply of existing Constitutional heads of power confers on the Commonwealth extensive legislative competence with respect to environmental matters.

2.20 The Committee, however, disappointingly notes the large number of submissions that highlight a recurrent lack of political will and leadership on the part of all Commonwealth Governments to employ the extensive power they possess in order to protect and conserve the environment which is every Australian's common legacy.

Recommendation 1

The Commonwealth should not hesitate to creatively employ the wide powers it possesses in order to protect and conserve the environment and should vigorously defend its power when challenged.

Lingering Constitutional uncertainty

2.21 The Committee appreciates that while the Commonwealth possesses extremely wide Constitutional powers over the environment, that power is not entirely unlimited. A Commonwealth environmental law still needs to deal with a permitted head of power in a valid manner or constitute a permissible implied national power in order to be sustained constitutionally. Without an express environmental power, the legislative result has been lingering Constitutional uncertainty.

2.22 The Committee notes that this Constitutional uncertainty has manifested itself in at least two unsatisfactory ways. [39] First, uncertainty has acted as an impediment to national environmental protection. Whether for reasons of political difficulty or expediency, Commonwealth Governments of all persuasions have often fallen back on claimed uncertainty created by the lack of an express environment power as an excuse not to legislate for the protection of the environment. [40] Second, perceived Constitutional uncertainty has prompted needless litigation in active challenges to Commonwealth environmental laws. A beneficial consequence of this litigation, however, has been the ability of the High Court to confirm the Commonwealth's extensive power to meet the challenges posed by contemporary environmental problems. [41]

2.23 It is the view of the Committee that a large part of remaining Constitutional uncertainty surrounding the environmental use of existing Commonwealth power could be greatly alleviated by the use of independent Environmental Law and Constitutional Law experts. An independent statutory Environmental and Constitutional Law Experts Commission (made up, for example, of members from Commonwealth, State and Territory Attorney's-General Departments, academics, private practitioners, and lawyers with environmental community legal centres such as the Environmental Defender's Office) could advise the Government if, when, and how, the Commonwealth should legislate with respect to environmental matters. An ECLC could also monitor, review and advise on the government's execution of its responsibilities for environmental protection and ecologically sustainable development.

2.24 The Committee notes that the Commonwealth has relied on similar independent environment commissions in the past. For example, the Australian Advisory Committee on the Environment was established in May 1972 to advise the Commonwealth on environmental matters, as well as initiate studies and make recommendations on environmental policy. [42]

Recommendation 2

The Commonwealth Government should establish an independent statutory Environmental and Constitutional Law Experts Commission to advise the government on: (i) when national environmental legislation is necessary, (ii) the Government's ability to pass environmental legislation under existing powers, and (iii) the form such legislation should take. The Commission should also be empowered to monitor, review and advise the Government on its performance in relation to its responsibilities for environmental protection and ecologically sustainable development.

2.25 The remaining chapters of this report which follow, examine the actual and potential use of existing Commonwealth power to protect the environment in the contexts set out in paragraph (b) of the terms of reference for which sufficient evidence was presented, viz:

• Implementing international obligations, particularly the World Heritage Convention and the Ramsar Convention;
• Environmental Impact Assessment;
• Export Controls;
• The Corporations Power;
• The Endangered Species Protection Act; and
• The National Strategy for Ecologically Sustainable Development.

2.26 These chapters evaluate the practicality, adequacy and application of Commonwealth power to protect the environment and promote ecologically sustainable development in these areas. The final chapter examines the adequacy of existing federal-state arrangements employed to meet these challenges and concludes with recommendations for more effective arrangements.

 

Footnotes

[1] An Act to Constitute the Commonwealth of Australia 1900 (63 & 64 Victoria, Chap. 12)(hereafter Australian Constitution Act).

[2] Saunders C., Australia's Federal System and the Division of Powers, in Federalism and Resource Development: The Australian Case (P Drysdale & H Shibata, eds., 1985), pp 26-27.

[3] Australian Constitution Act s 109.

[4] Lane P.H., An Introduction to the Australian Constitution, 2d edition 1977, p. 5.

[5] Australian Constitution Act s 128.

[6] As Isaacs J, wrote in Commonwealth v Kreglinger and Furnau Ltd (1926) 37 CLR 393, 413, the constitution was "made, not for a single occasion, but for the continued life and progress of the community . . .".

[7] Victoria v Commonwealth (1971) 122 CLR 353, 396.

[8] Commonwealth v Tasmania (1983) 158 CLR 1, 221.

[9] See Submission No 333 (National Association of Forest Industries Ltd), pp 1581-1600.

[10] Convention Debates, 3 April 1891, pp. 689-91.

[11] See Irving H, To Constitute a Nation: A Cultural History of Australia's Constitution (1997), p 128.

[12] Australian Constitution Act, s 100. By implication, under section 100 the Commonwealth does have the power to limit "unreasonable use" of waters of rivers for either "conservation or irrigation"; conservation being understood at that time to mean merely storage of water for later use. See Crawford J, The Constitution, in Bonyhady T., ed., Environmental Protection and Legal Change (1992), pp 2-3.

[13] Submission No 14 (The Colong Foundation for Wilderness Ltd), p 120; Submission No 177 (Geoffrey Bell), p 728.

[14] Submission No 17 (Max E Bourke), p 140.

[15] See generally Lines, W.J., Taming the Great South Land: A History of the Conquest of Nature in Australia (1991).

[16] Crawford J, The Constitution, in Environmental Protection and Legal Change (Bonyhady T., ed., 1992), p 4.

[17] See Australian Constitution Act s 107, which sets out the scheme for the division of power between State and Federal Governments.

[18] Crommelin M, Resources Law and Public Policy (1983) 15 UWALR 1, at 1; See also Sawer G., Conservation and the Law, in Conservation (Costin A.B. & Frith H.J., eds., 1971).

[19] See eg Department of the Environment and Conservation, Report for Period December 1972 to June 1974, Parliamentary Paper No 298 of 1974, p 5 ("environmental issues are the responsibility of State and local government"); Department of Home Affairs and Environment, Annual Report 1981-82, p 8 ("Constitutionally, the States and Territories have primary responsibility for environment protection.").

[20] Crawford J, The Constitution and the Environment (1991) 13 Sydney L.Rev. 11, 12.

[21] Submission No 116 (Bruce Donald), pp 482-83.

[22] Senate Select Committee on Water Pollution, Parliamentary Paper No 98 of 1970, pp 142 & 187. See also Committee of Inquiry into the National Estate, Parliamentary Paper No 195 of 1974 (recognising ample constitutional authority for the Commonwealth to establish a National Estate).

[23] Submission No 18 (David Sheehan), pp 144-45. See also Our Country, Our Future - Statement on the Environment (1989)("Many of the environmental problems we face today do not respect State and Territory boundaries, and cannot be resolved piecemeal. Increasingly the Australian community and investors are demanding national approaches to major environmental issues), p 10.

[24] Stockholm Declaration of the United Nations Conference on the Human Environment, Report of the UN Conference on the Human Environment, 5-16 June 1972, U.N.Doc. A/CONF.48/14/Rev. 1 at 3 (1973).

[25] Report of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee on the Environment Protection and Biodiversity Conservation Bill 1998 and the Environmental Reform (Consequential Provisions) Bill 1998, p 3, quoting Davis B.W., Federalism and Environmental Politics: An Australian Overview, p 2.

[26] `It is no objection to the validity of a law otherwise within a power that it touches or affects a topic on which the Commonwealth has no power to legislate'. Mason J, Murphyores Inc. Pty Ltd v. Commonwealth, (1976), 136 CLR 1 at 22

[27] See Australian and New Zealand Environment and Conservation Council, Guide to Environmental Legislation in Australia and New Zealand, 5th ed, (Rept No 31, 1997), Chap. 3, Commonwealth Environmental Legislation.

[28] Victoria v Commonwealth (1975) 134 CLR 338. Crawford suggests, however, that subsequent jurisprudence indicates that this is not a secure source of substantive regulatory power over the environment. Crawford J, The Constitution and the Environment (1991) 13 Syd. L. Rev. 11, 27.

[29] See eg National Parks and Wildlife Conservation Act 1975 (Cth).

[30] Murphyores Inc. Pty Ltd v. Commonwealth, (1976), 136 CLR 1.

[31] Administrative Arrangements Order, 21 October 1998 as amended 17 December 1998. For a more complete list of Commonwealth environmental legislation now in force, see Australian and New Zealand Environment and Conservation Council, Guide to Environmental Legislation in Australia and New Zealand, 5th ed (Report No 31, 1997), pp163 -76.

[32] But see Submission No 349 (Northern Territory Government), p 1807.

[33] Id.

[34] (1983) 158 CLR 1.

[35] (1988) 164 CLR 261.

[36] (1989) 167 CLR 232.

[37] See eg Submission No 177 (Geoffrey Bell), p 728; Submission No 205 (Jane Huzzey), p 806; Submission No 253 (Prof. Jan McDonald), p 1046; Submission No 257 (Environmental Defenders Office) p 1102-03; Submission No 260 (Richard Kean), p 1153; Submission No 262 (Humane Society International), p 1159; Submission No 263 (Environment Victoria), p 1167; Submission No 265 (Royal Australasian Ornithologists Union), p 1195; Submission No 275 (Environment Centre NT and the Arid Lands Environment Centre), pp 1249-50; Submission No 280 (Marine Education Society of Australia), p 1269; Submission 293 (Cairns and Far North Environment Centre Inc), p 1338; Submission No 298 (Judith Rutherford), p 1368; Submission No 305 (Mirimbiak Nations Aboriginal Corp), p 1437; Submission No 328 (Australian Council of National Trusts), p 1543; Submission No 344 (Sali Bache), p 1736; Submission 345b (Australian Conservation Foundation), p 1780h-80i; Submission No 351 (The Wilderness Society), p 1821.

[38] Crawford J, The Constitution and the Environment (1991) 13 Sydney L.Rev. 11, 30.

[39] A third unsatisfactory result of Constitutional uncertainty is often repetitive, unartfully drafted environmental laws, often artificially making awkward distinctions between individuals and corporations. Submission No 257 (Environmental Defender's Office), p 1103.

[40] Submission No 280 (Marine Education Society of Australia), p 1269; Submission No 253 (Prof Jan McDonald), p 1046; Submission No 328 (Australian Council of National Trusts), pp 1543-44. See generally Toyne P, The Reluctant Nation: Environment, Law and Politics in Australia (1994), 5-12.

[41] Submission No 257 (Environmental Defender's Office), p 1103. See also Bates G, Environmental Law in Australia, 4th edition 1995, p 79-80.

[42] See Department of the Environment and Conservation, Report for Period December 1972 to June 1974 (1974 - Parliamentary Paper No 298), p 64.