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.
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