Global Environmental Protection (HSC SSCE Legal Studies): Revision Notes
Responses to Global Environmental Protection
Introduction
Responses to global environmental protection involve multiple actors and mechanisms working at international, national and local levels. These responses must balance the tension between national sovereignty and the need for coordinated global action. The effectiveness of environmental protection depends on how nations, international organisations, courts, and non-governmental bodies cooperate and implement environmental law.
The role of the state and state sovereignty
Understanding states and sovereignty
A state (also called a nation-state) is a country that operates as a sovereign political entity. To be recognised as a state, it must have:
- Defined national borders
- A permanent population
- Political recognition from other states
- The ability to enter into international agreements independently
Sovereignty refers to the right of a nation to control its territory and citizens without external interference. Under international law, national sovereignty is implicitly recognised, meaning each nation has authority over its own affairs and can govern as it sees fit.
The sovereignty-environment tension
A fundamental tension exists between what is environmentally necessary and what individual nations are willing to accept. Nations generally consent to international obligations only when they believe doing so serves their "best interests."
Historically, these best interests have focused on:
- Economic growth
- Corporate profitability
- Industrial innovation
Real-world examples of national sovereignty in action include:
- Australia's initial refusal to ratify the Kyoto Protocol on greenhouse gas emissions
- Japan's continuation of whaling for "scientific purposes" despite international criticism
However, perspectives are shifting. Many now argue that environmental health is essential to long-term prosperity, and that economic success without environmental protection is temporary. As Klaus Toepfer, former executive director of UNEP, stated at the Johannesburg Summit (2002):
"Our world is characterised by divided and dysfunctional cities, dwindling water supplies and potential conflict over scarce resources... We suffer from problems of planetary dimensions. They require global responses."
Implementation in Australia
In Australia, international treaties and conventions do not automatically become part of domestic law. They must be incorporated through domestic legislation. Two key cases establish this principle:
Case Example: Bradley v The Commonwealth (1973) 128 CLR 557
The United Nations Security Council had passed resolutions imposing sanctions on Rhodesia, prohibiting member states from trading with the regime. In Sydney, the Postmaster General attempted to withdraw communication services with the Rhodesia Information Centre based on these UN resolutions.
Decision: The High Court held that this action was ultra vires (beyond executive power) because it was not authorised by Australian domestic legislation.
Significance: Demonstrates that executive actions based solely on international obligations, without domestic legislative authority, are invalid.
Case Example: Simsek v Macphee (1982) 148 CLR 636
A Turkish national sought refugee status under the UN Convention Relating to the Status of Refugees (1951) and its Protocol (1967).
Decision: The High Court confirmed that unless Parliament has incorporated an international treaty into domestic law, it has no legal effect on the rights or duties of individuals, whether citizens or non-citizens.
Significance: Established that international treaties require domestic legislative implementation to be enforceable in Australian courts.
These cases demonstrate that while state sovereignty enables nations to implement international agreements, it also allows them to block or ignore such agreements if they choose.
The role of the United Nations
UN structure and evolution
The United Nations was established in 1945 with primary aims of:
- Maintaining international peace and security
- Developing friendly relations among nations
- Promoting human rights
- Facilitating social and economic progress
Initially, global environmental protection was not a significant UN concern. However, as environmental challenges became more apparent, this became a dominant aspect of UN affairs.
The five principal UN organs
The UN operates through five main bodies:
General Assembly: The main deliberative organ, composed of representatives from all 192 member states. Each state has equal representation and voting rights.
Security Council: Responsible for maintaining international peace and security. It has the power to make binding decisions that member states must implement.
Secretariat: The administrative arm that handles day-to-day UN operations, carrying out tasks across all UN areas of work.
Economic and Social Council: Coordinates the UN's economic and social work, including environmental protection and sustainable development initiatives.
International Court of Justice (ICJ): The judicial organ that settles legal disputes between nation-states and provides advisory opinions to the UN and its agencies.
UN environmental agencies and programmes
Beyond these principal organs, the UN includes 15 specialised agencies, numerous programmes and funds, and convention secretariats. Several focus specifically on environmental issues:
Food and Agriculture Organization (FAO): A specialised agency working to defeat hunger through sustainable agricultural development and responsible natural resource management. Current priorities include bioenergy development and addressing climate change impacts on agriculture, fishing and forestry.
United Nations Development Programme (UNDP): Established by the General Assembly to help developing countries obtain and effectively use aid for democratic governance, poverty reduction and sustainable development.
International Maritime Organization (IMO): An autonomous specialised agency that develops international shipping standards, particularly safety regulations. It works to prevent and control marine pollution from ships.
United Nations Environment Programme (UNEP)
Formation and purpose
UNEP was established in 1972 following the Stockholm Conference on the Human Environment. As a programme (subsidiary body) of the General Assembly, its stated mission is:
"to provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations."
Key functions
UNEP's work encompasses several critical areas:
Assessment and monitoring: Evaluating global, regional and national environmental conditions and identifying emerging trends.
Policy development: Creating international and national instruments, guidelines and standards for environmental protection.
Advocacy and education: Acting as an environmental champion within the UN system and with international organisations, national governments, NGOs, corporations and civil society.
Technology transfer: Facilitating the sharing of knowledge and technology to support sustainable development practices.
Convention hosting: Providing secretariat services for several environmental conventions, including:
- CITES (Convention on International Trade in Endangered Species)
- The Convention on Biological Diversity
- The Convention on Migratory Species
Priority areas
Since the 1992 Rio Conference and the increased focus on ecologically sustainable development (ESD), UNEP's scope has expanded significantly. Current priority areas include:
- Environmental aspects of disasters and conflicts
- Ecosystem management
- Regulation of harmful substances
- Resource efficiency
- Climate change response
Intergovernmental Panel on Climate Change (IPCC)
Structure and membership
The IPCC was established in 1988 by UNEP and the World Meteorological Organization. As an "intergovernmental" body, it is open to all UN member states and World Maritime Organization members. Member states participate by:
- Reviewing and commenting on draft reports during the government review stage
- Attending sessions where decisions about IPCC work are made
- Accepting, adopting and approving final reports
Functions and methodology
The IPCC's primary role is reviewing and assessing recent scientific information about climate change from around the world. Importantly:
- The IPCC does not conduct original research
- Reviews are performed by volunteer scientists from every region
- Assessments aim to provide comprehensive, balanced coverage
- Reports reflect diverse viewpoints within the scientific community
- The IPCC provides scientific information but does not prescribe specific policies
The IPCC has published four authoritative Assessment Reports, with a fifth released in 2014.
Challenges to credibility
In November 2009, the IPCC faced controversy when stolen emails from the University of East Anglia appeared to undermine evidence of human-induced climate change. The emails expressed doubts about global warming and suggested manipulating data presentation.
Two months later, a questionable claim about Himalayan glaciers disappearing by 2035 (made by glaciologist Syed Hasnain in a 1999 interview) was found in the 2007 Fourth Assessment Report. The scientist later acknowledged this was "speculative" and had never been published in a peer-reviewed journal.
The IPCC acknowledged that "clear and well-established standards of evidence, required by the IPCC procedures, were not applied properly." However, IPCC vice-chair Jean-Pascal van Ypersele maintained that these issues did not undermine the substantial body of evidence for human-caused global warming.
This controversy highlights how scientific procedure, media reporting and political viewpoints can interact to influence public understanding of climate change.
United Nations Educational, Scientific and Cultural Organisation (UNESCO)
UNESCO was founded in 1945 as a specialised UN agency. Its primary function is promoting international dialogue and cooperation in:
- Science
- Communication
- Education
- Culture
While UNESCO's two highest priorities are Africa and gender equality, it also focuses on promoting sustainable development, protecting biodiversity, overcoming poverty and preserving cultural heritage. Its Natural Sciences Sector plays a particularly direct role in fostering ESD.
Heritage protection
UNESCO has been instrumental in developing conventions for protecting humanity's shared heritage. The Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) led to the establishment of the World Heritage List, which included 890 outstanding sites as of June 2009.
Case Example: Palmyra, Syria
This UNESCO World Heritage Site in eastern Syria demonstrates how sustainable management programmes are needed not just for natural resources but also for cultural heritage.
UNESCO, working with the European Union and Syrian Government, implemented a sustainable management plan to preserve Palmyra for future generations while developing its potential as a major tourist destination.
Significance: Shows the intersection of environmental protection, cultural preservation, and sustainable economic development.
International instruments
International instruments are documents that set out commitments or obligations of nation-states and sometimes other parties such as international organisations. Understanding these instruments is essential for comprehending how international environmental law operates.
Soft law
Soft law refers to any international instrument, other than a treaty, that contains principles, standards or statements of expected behaviour but lacks legal consequences for non-compliance.
Types of soft law include:
- UN General Assembly resolutions and declarations
- Statements and principles
- Codes of conduct and practice
- Action plans (such as Agenda 21)
Characteristics of soft law:
- Identifies problems in general terms
- Sets out broad approaches to addressing issues
- Does not include specific commitments or enforcement mechanisms
- May evolve into hard law if provisions are later codified in treaties
- Can influence state practice and potentially become customary international law
Framework treaties represent a special category. These multilateral treaties establish a general structure for commitments but do not contain specific obligations or enforcement mechanisms. They are legally non-binding in the sense that they do not directly apply to domestic law. Specific commitments are negotiated later through protocols or domestic legislation.
Example: UN Framework Convention on Climate Change (1992)
The Framework Convention established general principles for addressing climate change but did not set specific emission reduction targets.
The later Kyoto Protocol (1997) was required to establish binding emission reduction targets and specific implementation mechanisms.
Significance: Demonstrates how framework treaties provide the foundation for more specific binding agreements.
Hard law
Hard law includes legally binding international agreements. These instruments have enforceable consequences when parties fail to comply.
Treaties and conventions: Written international agreements between states governed by international law. Treaties may be:
- Bilateral: between two parties
- Multilateral: involving more than two parties
Protocols: Negotiated instruments that supplement treaties or agreements. A protocol contains:
- Specific actions to fulfil treaty terms
- Provisions that modify the original treaty
- Binding commitments with enforcement mechanisms
Key examples:
- The Montreal Protocol supplements the Vienna Convention for the Protection of the Ozone Layer (1985)
- The Kyoto Protocol supplements the UN Framework Convention on Climate Change
- The Cartagena Protocol on Biosafety supplements the Convention on Biological Diversity
Example: The Cartagena Protocol on Biosafety
The Cartagena Protocol, which entered force in 2002, demonstrates how protocols can address emerging issues. It protects biodiversity from risks posed by genetically modified organisms by:
- Governing cross-border movement of living modified organisms
- Establishing procedures for nations to obtain necessary information before importing GMOs
- Incorporating the precautionary principle into decision-making
Significance: Shows how protocols can create specific, enforceable obligations in response to new environmental challenges.
While treaties and protocols may contain enforcement mechanisms, their effectiveness depends on nation-states' willingness to comply. States can exercise sovereignty to modify or reject international law, even when they are signatories.
Courts and dispute resolution
Ad hoc tribunals and early environmental cases
Before the United Nations and International Court of Justice were established, there was virtually no permanent court or tribunal to settle environmental conflicts between nations. The few disputes that arose were handled through specially created tribunals.
Landmark Case: The Trail Smelter Case (United States v Canada) 3 RIAA 1905 (1941)
Background: This case involved sulphur dioxide emissions from a zinc and lead smelter in Trail, British Columbia, located 15 kilometres from the Washington state border. The emissions caused significant damage to fertile farming and logging lands in the Columbia River Valley.
In both 1928 and 1935, the case was referred to the International Joint Commission. The parties then established a special tribunal through a bilateral convention to determine:
- The extent of damages
- Whether compensation should be paid
- Whether the smelter should operate under restricted conditions
Decision: The tribunal determined:
- Canada must pay $78,000 in damages to the USA
- Smelter operators must refrain from emitting harmful materials
- Monitoring instruments must be installed to record weather conditions and emission levels
- If prescribed levels were exceeded, further compensation was payable
Significance: This case established the principle that neighbouring nation-states have responsibilities for damage caused by transboundary pollution. However, it required both parties' consent to create the tribunal, which only had jurisdiction over this specific matter.
International Court of Justice (ICJ)
The ICJ, established in 1945, provides a permanent forum for environmental disputes that does not require creating an ad hoc tribunal for each case.
Jurisdiction limitations:
- Only nation-states can be parties to ICJ cases
- The Court can only decide cases where parties have consented to its jurisdiction through:
- Special agreement between the parties
- Specific provision in a treaty
- Recognition of the Court's jurisdiction as compulsory
- States can raise "preliminary objections" to jurisdiction or refuse to appear
Sources of law: Article 38 of the ICJ Statute lists sources the Court can apply:
- International conventions (treaties)
- Customary international law
- General principles of law recognised by civilised nations
- Judicial decisions and teachings of highly qualified academic writers
- Decisions ex aequo et bono (what is fair and just) if parties agree
Notable ICJ environmental cases
Case Example: Nuclear Test Cases (1974-75)
Australia and New Zealand brought cases against France for testing nuclear devices in French Polynesia. The cases did not proceed to judgment because France voluntarily ceased atmospheric testing (though it later began underground testing).
Decision: The ICJ held that once France stated it was stopping atmospheric tests, the cases no longer had any object.
Significance: Demonstrates the limitation that cases become moot when the disputed action ceases, even if the underlying issue remains unresolved.
Case Example: Nauru v Australia
Nauru sued Australia for failing to remedy environmental damage from 90 years of phosphate mining.
Outcome: In 1992, a negotiated settlement was reached with Australia agreeing to pay $107 million in compensation for damage caused prior to Nauru's independence.
Significance: Shows that negotiated settlements can be more effective than litigation in resolving complex environmental disputes.
Case Example: The Danube Dam Case (1997)
Background: Hungary and Slovakia disputed water resources and alleged transboundary environmental harm. After Hungary withdrew from a joint venture to build a hydroelectric dam, Slovakia diverted the river to operate the dam independently.
Decision: The ICJ found:
- Both Hungary's withdrawal and Slovakia's diversion were unlawful
- The 1977 treaty between the countries was flexible enough to incorporate new international environmental norms
- The principle of ESD applied
- Shared water resources must be used equitably
Significance: Demonstrates that international agreements can evolve to incorporate emerging environmental principles.
Chamber for Environmental Disputes
In 1993, the UN established the Chamber for Environmental Disputes as a discrete section of the ICJ to provide a forum for settling environmental disputes. However:
- The Chamber has never been used
- Annual elections for Chamber membership ceased in 2006
Problem with ICJ effectiveness: The Court's jurisdiction depends on whether states consent to be bound. This seriously constrains its effectiveness, particularly since corporations are responsible for many environmental problems but cannot be parties before the ICJ.
Proposed solution: Some NGOs and academics advocate for an International Environmental Court modelled on the International Criminal Court. Such a court could:
- Settle disputes between private and public parties for issues of global magnitude
- Provide mediation and arbitration services
- Institute investigations independently
- Apply ESD principles consistently
- Use scientific experts to determine complex technical issues
- Operate with compulsory jurisdiction rather than requiring consent
Major conferences
Historical context
Prior to 1972, international environmental instruments were predominantly reactionary – responding to discrete problems as they arose. Environmental law was ad hoc and generally regional in scope.
During the 1960s, it became clear this piecemeal approach was insufficient to address global environmental threats. Under UN guidance, international "mega conferences" focusing on the global environment have been held approximately every decade since 1972.
Stockholm Conference (1972)
The UN Conference on the Human Environment (Stockholm Conference) was the first international gathering to consider the natural environment and economic development together.
Main aim: According to UNEP, the conference sought to establish "a common outlook and common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment."
Key outcome - The Stockholm Declaration: While declarations have no binding legal force, they carry moral weight and provide practical guidance for nation-states. The Stockholm Declaration contains four key themes:
-
National responsibility: Nation-states have a responsibility to manage their environments and are accountable to neighbouring countries.
-
Right to adequate environment: All people have a fundamental right to an adequate environment.
-
Intergenerational equity: Current generations must consider the needs of future generations.
-
International cooperation: Environmental protection requires nations to work together.
Significance: While Stockholm produced no concrete binding law, it:
- Established foundations for all subsequent international environmental law
- Introduced the concept of ecologically sustainable development (ESD)
- Led to the formation of UNEP as the major forum for promoting global environmental protection
Nairobi Conference (1982)
Held in Nairobi, Kenya to mark the tenth anniversary of Stockholm, this conference aimed to reaffirm commitment to the Stockholm Declaration and Action Plan.
The conference generated less worldwide interest than Stockholm, possibly due to:
- International political tensions between the USA and Soviet Union
- Kenya's internal difficulties
The Nairobi Declaration urges "all governments and people of the world... to ensure that our small planet is passed over to future generations in a condition which guarantees a life of human dignity for all."
This is not considered an official Earth Summit.
Rio Conference: The 1992 Earth Summit
The United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil, represented a major advance in global environmental law.
Context: While Stockholm provided general ESD guidelines, Rio produced the framework for domestic and international environmental protection law. However, differences among the 180 represented nation-states and NGOs made reaching consensus difficult.
Key agreements from Rio:
-
UN Framework Convention on Climate Change: Established a framework for addressing global warming and climate change (followed later by the Kyoto Protocol).
-
Rio Declaration on Environment and Development: Contains 27 principles for using the environment sustainably, including:
- Defining human responsibilities to safeguard the common environment
- Establishing rights of people to participate in developing their economies
-
Agenda 21: A comprehensive, voluntary action plan for all government levels to work towards sustainable development, covering:
- Efficient resource use
- Fostering an equitable world
- Protecting global resources
- Making the world habitable
- Increasing input from disadvantaged groups (children, women, indigenous communities)
- Strengthening government-NGO partnerships
-
Convention on Biological Diversity: Protecting biodiversity and ensuring sustainable use of biological resources.
-
Convention to Combat Desertification: Addressing land degradation in arid regions.
Main achievement: Rio placed significant pressure on nation-states to implement ESD principles domestically.
Johannesburg Summit (2002)
Held in Johannesburg, South Africa, this Earth Summit aimed to move from guidelines and frameworks to practical implementation with timelines and enforcement mechanisms.
Theme: "Building Partnerships for Sustainable Development"
However, as expressed on the UN website: "Sadly we have not made much progress in realising the grand vision contained in Agenda 21... it is no secret that the global community has not demonstrated the will to implement it."
Notable achievements:
-
Water access: Set target to reduce by half the proportion of people without safe drinking water by 2015. Obtained commitments and funding from:
- USA and European Union governments
- Asian Development Bank
-
Sustainable energy: Secured commitments and funding for sustainable energy programmes in developing countries.
-
Increased ratification: Thailand, India, Canada and Russia all announced intentions to ratify or had ratified the Kyoto Protocol.
Limitations: Not all commitments were sufficiently firm. For example, no specific aims were set for diversifying energy sources, which was a key objective.
Intergovernmental organisations
Various international bodies not directly linked to the United Nations also play important roles in global environmental protection.
European Union (EU)
The EU has developed an Environment Section that implements environmental policies for its 25 member nation-states. This includes an EU Sustainable Development Strategy that took effect in 2006.
Organisation for Economic Co-operation and Development (OECD)
While the OECD primarily focuses on economic growth, employment and living standards, it has recognised the need to incorporate environmental considerations.
Environmental performance reviews: Since 1992, the OECD Working Party on Environmental Performance has conducted peer reviews of member countries' environmental performance. Reviews assess:
- Efforts to meet domestic environmental objectives
- Compliance with international commitments
Example: China Review (2006)
The OECD made 51 recommendations to "strengthen China's environmental performance in the context of sustainable development," including:
- Strengthening monitoring, inspection and enforcement capabilities
- Establishing better incentives and sanctions
- Strengthening implementation of polluter pays and user pays principles
Significance: Shows how peer review mechanisms can promote environmental accountability in economically focused organisations.
As OECD Environment Director Lorents Lorentsen stated in 2004:
We have made progress towards several environmental goals... But much more progress is needed. Ecosystems continue to be degraded, persistent and toxic chemicals are widespread in the environment, many fish stocks are declining, and greenhouse gas emissions... continue to grow... how can we continue to grow and overcome global poverty, while doing relatively less damage to the environment?
This recognition from an economically focused institution demonstrates the fundamental shift in global environmental awareness since 1972.
Non-government organisations (NGOs)
Role and characteristics
Non-government organisations (NGOs) are associations based on common interests and aims, with no connection to any government. They have emerged in response to growing environmental awareness, using action and advocacy to pressure governments to consider environmental factors.
NGOs operate at different scales:
- National: Within a single nation-state
- International: Across multiple countries
Major environmental NGOs:
- Greenpeace
- World Wide Fund for Nature
- Friends of the Earth
Activities and influence
Research and education: NGOs investigate environmental issues, publicise findings and educate the public about environmental concerns.
Formal recognition: Agenda 21 formally recognised NGOs' contributions. Some NGOs have observer status at the United Nations, meaning they:
- Can speak at General Assembly meetings
- Participate in procedural votes
- Sponsor and sign resolutions
- Cannot vote on resolutions and important matters
- Are often consulted when environmental law is being drafted
Direct action - "envirostunts": NGOs are famous for publicity stunts designed to pressure and sometimes embarrass governments and corporations. Their most powerful weapon is the media.
Notable NGO actions
Example: Brent Spar Oil Rig (1995)
Greenpeace occupied the Shell Oil-operated Brent Spar oil rig in the North Sea to prevent it being scuttled and dumped at sea. Public pressure led to a global boycott of Shell service stations.
Outcome: Shell subsequently agreed to dismantle the rig and recycle it on land. This action led to a worldwide ban on this disposal method.
Significance: Demonstrates how NGO direct action combined with public pressure can force corporate policy changes and influence international environmental standards.
Example: Franklin Dam (Tasmania)
The Wilderness Society and Australian Conservation Foundation were instrumental in stopping dam construction in Tasmania's 'Wild Rivers' region.
Significance: Discussed in detail in the Franklin Dam Case section – shows how NGOs can mobilise public opinion to influence major government decisions.
Example: PETA Campaigns
People for the Ethical Treatment of Animals uses attention-grabbing promotions to raise awareness, such as the "I'd rather go nude than wear fur" campaign.
Significance: Shows how NGOs use creative media strategies to generate public discussion about environmental and ethical issues.
The media
Power and influence
The media represents one of the most powerful forces globally, with potential not merely to shape popular opinion but to determine it.
Challenges to objectivity
Ownership concentration: In industrialised countries, media ownership is often concentrated among a few corporations. This can blur the line between:
- Information (reporting news)
- Persuasion (influencing opinions)
Corporate interests: When a news agency's parent company is a multinational with broad financial interests, reporting may be constrained. Economic pressures during recessions may limit spending on investigative journalism, making it cheaper to obtain stories from wire services than to produce original research.
Public broadcasting constraints: Even publicly owned media are not immune from financial considerations. In some countries, public broadcasters must appeal to audiences for financial support. Governments must also avoid exerting too much influence, even when trying to ensure "balance."
Political spin: Recognition of potential political bias is important to counteract selective coverage. However, corporate financial resources mean they are far more likely to influence public understanding of environmental issues than governments.
Media success - Franklin Dam case
Example: Media Impact on the Franklin Dam
The Franklin Dam protest movements of the early 1980s demonstrated the media's power in environmental matters. The Wilderness Society and Australian Conservation Foundation mounted a well-organised campaign using media to present their perspective.
Outcome: They were spectacularly successful, ultimately leading to the Commonwealth v Tasmania (1983) 158 CLR 1 case.
Significance: Demonstrates how effective media campaigns can transform public opinion and influence major political decisions on environmental issues.
Australia's federal structure
Constitutional framework
Understanding Australia's federal structure is essential for comprehending how environmental law operates domestically.
Residual powers: Legislative powers not specifically listed in section 51 of the Australian Constitution as Commonwealth powers. These belong to the states.
Enumerated powers: Legislative powers specifically set out in section 51 as belonging to the Commonwealth Parliament.
Environmental law as residual power: The Constitution does not enumerate environmental protection as a federal power. Therefore, it falls to the states as a residual power.
State environmental legislation - New South Wales example
Like the rest of the world, Australia was relatively unaware of environmental exploitation consequences until recently.
Early legislation: The Forestry Act (1916) primarily regulated the timber industry with little reference to responsible resource management.
1960s-1970s development: New South Wales passed several environmental protection laws:
- Clean Air Act (1961) - since repealed
- Clean Waters Act (1970) - since repealed
- Pollution Control Act (1970) - since repealed
- Protection of the Environment Operations Act (1999) - consolidated previous Acts with significant new provisions
- Heritage Act (1977)
- Pesticides Act (1978) - superseded by Pesticides Act (1999)
- National Parks and Wildlife Act (1974)
Integration of planning and environment: Prior to 1979, environmental law and town planning law developed separately. The creation of the NSW Land and Environment Court in 1979 indicated a major policy shift. The Court was established as:
- A superior court of record
- Having exclusive jurisdiction in environmental and planning law
The Environmental Planning and Assessment Act (1979) mandated that town planning decisions must consider environmental factors.
Federal environmental powers
The Australian Constitution initially limited the Commonwealth's role in environmental affairs. However, as environmental awareness grew, the federal government began taking a more active role through constitutional interpretations by the High Court.
Case Example: Murphyores v The Commonwealth (1976) 136 CLR 1
Background: During the early 1970s, Queensland granted a lease to Murphyores to extract minerals from sand on Fraser Island. The federal government requested the mining cease but lacked constitutional authority to order it stopped.
However, the Commonwealth has power over exports and imports under section 51(i) (trade and commerce power). The Commonwealth refused to issue Murphyores with an export permit, effectively denying market access.
Decision: The High Court held the federal government's denial of the permit was a valid use of constitutional power. Technically, the Commonwealth did not stop the mining; it stopped market access.
Significance: This highlighted the increasing importance the Commonwealth placed on the environment and its willingness to intervene in affairs traditionally handled by states if necessary.
Landmark Case: Tasmania v The Commonwealth (1983) 158 CLR 1 (Franklin Dam Case)
Background: Tasmania planned to build a hydroelectric dam on the Franklin and Gordon River system. Environmentalists began a protest campaign, with the Wilderness Society and Australian Conservation Foundation becoming actively involved. Nationwide protests were organised under the "No Dams" slogan, attracting high-profile personalities.
The Tasmanian Government argued dam construction was a residual power. In the lead-up to the 1983 federal election, the Australian Labor Party leader promised to stop the dam if elected. Labor won, but Tasmania continued construction.
The federal government recognised Tasmania's 'Wild Rivers' area under the World Heritage Convention. To implement this international obligation domestically, Parliament passed the World Heritage (Property Conservation) Act (1983), specifying such areas should be protected, including the Franklin River.
This created a conflict: state law allowed construction while federal law demanded it stop.
Decision: In a 4 to 3 decision, the High Court ruled:
- The federal government validly used the external affairs power (section 51(xxix))
- This power allows legislation on any matter of "international concern"
- Under section 109 of the Constitution, when state and Commonwealth laws conflict, the Commonwealth law prevails
- Construction was stopped
Enormous significance:
-
The Commonwealth can make environmental laws using the external affairs power when necessary to fulfil international obligations.
-
Australia can implement international obligations to override unwilling states.
-
Leading example of how NGOs can shape community values and promote law reform.
-
Demonstrated how democratic processes can pressure governments to assume environmental responsibility.
-
Environment became a central policy for all political parties.
Current federal environmental law
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the main federal environmental law. It provides the legal framework for protecting and managing:
- Nationally important flora, fauna, ecosystems and places
- Internationally important environmental sites
Matters of national environmental significance requiring Commonwealth assessment and ministerial approval include:
- World Heritage sites
- National Heritage places
- Nationally protected wetlands (Ramsar wetlands)
- Nationally listed threatened species and ecological communities
- Listed migratory species
- Nuclear actions (including uranium mines)
- Commonwealth marine areas
- Commonwealth-owned land
- Commonwealth agency activities
Federal-state cooperation
Australia's three-tiered government system (federal, state, local) has resulted in fragmented environmental authority.
Intergovernmental Agreement on the Environment (1992): This initiative aimed to:
- Define state and federal roles more clearly
- Reduce jurisdictional disputes
- Foster cooperative approaches
- Provide better environmental protection
The IGAE reflected elements of the Rio Declaration and set out agreed responsibility areas between Commonwealth and all state and territory governments.
National Environment Protection Council (NEPC): Established under the National Environment Protection Council Act (1994) to oversee IGAE implementation. Section 3 states the Act's objects are ensuring:
- People enjoy equivalent protection from air, water and soil pollution, and noise, wherever they live in Australia
- Businesses and markets are protected from inconvenient effects of jurisdictional variations
Bilateral agreements: These agreements between the Commonwealth and individual states/territories help streamline responsibilities. The 2007 NSW-Commonwealth bilateral agreement allows the Commonwealth to accept environmental assessments done by NSW if they fulfil certain conditions. Some procedures under the Environmental Planning and Assessment Act (1979) can replace EPBC Act assessments, though Commonwealth Environment Minister approval is still required.
Collaborative approaches: Various government levels often work together, exemplified by the Murray-Darling Basin Ministerial Council. Comprising relevant Ministers from NSW, Victoria, South Australia, Queensland and the Commonwealth, the Council was established by the Murray-Darling Basin Agreement in the Water Act (2007). It has decision-making roles in federal-state plans for sustainable resource use in the Murray-Darling Basin.
State enforcement example
Case Example: EPA v Gardner [1997] NSWLEC 169
Background: From October 1993 to April 1996, Charles Gardner pumped over 120,000 litres of raw sewage into the Karuah River while operating a caravan park. Gardner installed underground pipes and valves to avoid $850 weekly sewage removal fees. This created offensive smells and posed serious health threats to river users and nearby oyster farms.
Decision: Justice David H. Lloyd made history by sentencing Gardner to prison - the first time the Land and Environment Court used its imprisonment power despite having it since 1989. Gardner received:
- Twelve months imprisonment
- $420,000 in fines and costs
Significance: EPA Director Brian Gilligan stated the decision sent a powerful message to polluters. Prosecutor Ian Lloyd QC noted: "I see the function of prosecuting environmental criminals as equally if not more important than prosecuting murderers."
This case demonstrates that serious environmental offences can result in criminal penalties including imprisonment, not just financial penalties.
Remember!
Key Points to Remember:
State sovereignty creates tension between national interests and global environmental protection needs. Nations consent to international obligations primarily when they serve perceived national interests.
The United Nations operates through five principal organs (General Assembly, Security Council, Secretariat, Economic and Social Council, ICJ) with numerous specialised agencies addressing environmental issues.
Hard law (treaties, protocols) is legally binding, while soft law (declarations, resolutions) carries moral force without legal consequences for non-compliance.
The International Court of Justice can only hear cases when nation-states consent to its jurisdiction, limiting its effectiveness for environmental disputes.
Major conferences (Stockholm 1972, Rio 1992, Johannesburg 2002) have progressively developed from establishing principles to creating frameworks to attempting implementation.
Australia's federal structure means environmental protection was originally a state residual power, but the Commonwealth can now legislate using the external affairs power to implement international obligations (Franklin Dam Case).
NGOs, media and intergovernmental organisations play crucial roles in promoting environmental protection, educating the public and pressuring governments to act.
Highlighted key terms:
- State: sovereign political entity with defined borders
- Sovereignty: right to control territory without external interference
- Hard law: legally binding international agreements
- Soft law: non-binding instruments with moral force
- Protocol: instrument supplementing a treaty with specific provisions
- Residual powers: government powers belonging to states (not enumerated in Constitution)
- Enumerated powers: powers specifically listed in Constitution as belonging to Commonwealth
- NGOs: non-government organisations based on common interests
- Ex aequo et bono: decisions based on what is fair and just
Critical frameworks:
- Tension between national sovereignty and international cooperation
- Hierarchy of international law (treaties > customary law > general principles)
- Three-tiered Australian government structure (federal, state, local)
- Implementation gap: international obligations → domestic legislation → enforcement
Essential exam approach: When analysing environmental protection effectiveness, always consider: (1) What is the legal framework? (2) Who has the power to enforce it? (3) What are the consequences of non-compliance? (4) How does sovereignty affect implementation?