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THE COMMONWEALTH, THE STATES, TREATIES AND THE ENVIRONMENT

Presenter: James Blindell, July 1996

Thanks to Lisa Ogle of the EDO (NSW) for her assistance.
Reference Book: Environmental Law in Australia, GM Bates, Butterworths

OUTLINE

1. Introduction
2. Overview of the Constitution and Commonwealth & State powers re: environmental protection
3. Discussion of hypothetical - Commonwealth protection of the environment
4. International Agreements - how they protect the Australian environment
5. Discussion of Ah Hin Teoh Case

INTRODUCTION

There are two types of law - common law and statute law:

Common law: developed through the English courts with principles being developed as a result of litigation. It dealt with the protection of private property and the individual. The industrial revolution/technology left the common law behind in terms of the impact on public resources and public assets (the environment).

Statute law: Government intervention became necessary to regulate industry, regulate development, protect resources - pollution control and environmental protection. Governments passed statutes.

The Commonwealth Constitution, contained within the Constitution Act 1900, empowers Commonwealth Government to make laws.

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THE COMMONWEALTH CONSTITUTION

1. Australia was a "fresh canvas", unoccupied land (until Mabo).
2. The Constitution does not mention the "environment" because the Constitution was an economic document focused on the financial arrangements to make the profitability of the federation of the colonies greater than the sum of their individual efforts. Its other focus was to ensure that the vested power interests in each colony retained power.
3. n addition, in 1901 the colonies did not have the health and pollution problems that England was experiencing. Private property was protected (section 51(xxxi)), the public good was not.
4. The Constitution gives the Commonwealth power to legislate on certain topics set out in the Constitution (unlike in Canada).
5. Topics not listed in the Constitution can be legislated for by the States provided the legislation is not "inconsistent" with Commonwealth legislation (section 109).
6. The Constitution can be changed (section 128). The proposed change must be agreed to by a majority of electors in a majority of States and by a majority of all electors.
   
   Only eight of 44 proposed changes have been approved.
   
   
7. The High Court may be moving towards the view that provided Commonwealth legislation can be interpreted as falling under a "head of power" in the Commonwealth Constitution, there is no topic upon which the Commonwealth cannot legislate - and therefore further diminish the importance of the States. However the Commonwealth legislation is still subject to the express and implied restrictions on Commonwealth power in the Constitution.

Commonwealth Constitution "heads of power" used to pass environmental legislation Section 51 (attached):

• (i) trade and commerce with other countries and among the States;
• (ii) taxation; but so as not to discriminate between States or parts of States;
• (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
• (xxvi) the people of any race for whom it is deemed necessary to make special laws;
  (xxix) external affairs
• (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament...or in any government of the Commonwealth...or any department or officer of the Commonwealth;

Other financial powers:

• sections 81 to 83 spending;
• section 96 special purpose grants and loans;

There are express restrictions on Commonwealth power in the Constitution

• Section 90 imposition of uniform customs and excise duties
• Section 92 trade within the Commonwealth cannot be the subject of customs duties

Commonwealth- State co-operative arrangements

To avoid direct conflict with the States, the Commonwealth has developed a policy of "co-operative federalism". Recent High Court decisions expanding Commonwealth powers to include environmental. protection have encouraged the States to participate.

Under this policy the National Environment Protection Council ("NEPC") has been established under the National Environment Protection Council Act 1994.

NEPC, in consultation with the States, develops national guidelines and standards for air, water, soil and noise pollution. It attempts to deal with business "forum shopping" for the weakest environmental standards.

In 1992 the Inter Governmental Agreement on the Environment (IGAE) was signed by the Commonwealth, all State and Territory Governments (WA subsequently withdrew) and the Australian Local Government Association. It recognises that the States have primary responsibility for managing the environment and that the Commonwealth and States should co- operate on environmental management issues. The Principles of Environmental Policy within the IGAE recognise ESD, the precautionary principle.

DEST both administers Commonwealth environmental legislation and co-ordinates and directs the consultation with the States.

Consultation between the Commonwealth and the States occurs at a number of levels:

• Ministerial through the Australian and NZ. Environment and Conservation Council (ANZECC);
• Specialist ministerial councils, for example - the Great Barrier Reef;
• Non-ministerial authorities - National Health and Medical Research Council (NHMRC),
• River Murray Commission,
• Consultative Committee on Nuclear Codes,
• National Occupational Health and Safety Council,
• EPA (Australian Heritage Commission, Australian Nature Conservation Agency, Great Barrier Reef Marine Park Authority, Office of the Supervising Scientist for the Alligators Rivers Region).
• Co-operative policies take time to implement and only require one or two States to refuse to co-operate and the process is further delayed. This begs the question as to whether local-operation is the best solution in environmental terms to global problems when the Commonwealth has the power to impose uniform legislation?

Integrated Environmental Management?

The Federal/State divisions and the administrative divisions within States ensure that integrated management is almost an impossibility eg - local government, pollution control, heritage protection, coastline management, planning control, wildlife management, Aboriginal Affairs.

An example of successful IEM in Australia is the Great Barrier Reef Marine Park Authority.

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INTERNATIONAL AGREEMENTS (TREATIES & CONVENTIONS)

These are usually enforceable at international law.

A bilateral agreement is an agreement between two nations, multilateral agreement is between more than two nations.

A "protocol" is a type of international agreement designed to supplement an existing agreement.

Depending upon the terms of the agreement, once a nation signs an agreement or ratifies an agreement it becomes a party to the agreement. In most agreements ratification is required which means the signatory must issue a declaration stating that it considers itself bound by the agreement.

In Australia recommendations prepared by the Department of Foreign Affairs (in consultation with other relevant Departments) are submitted to the Federal Executive Council through the Minister of Foreign Affairs.

The Federal Executive Council consists of the Federal Cabinet. It advises the Governor-General who has the power to enter international agreements. The Governor-General usually acts upon the advice of the Federal Executive Council.

The Federal Parliament has no formal role in the making of international agreements. However, the text is usually tabled before Parliament.

Enforcement and implementation in Australia

Under international law a party to an international agreement is required to perform its treaty obligations in good faith. Only another party to the agreement can enforce the agreement.

Unless the agreement has been enacted into Australian law, an Australian citizen has no rights to enforce Australia's obligations under an agreement. It is under the External Affairs power (section 51(xxix)) of the Constitution that Parliament can pass laws to meet its international agreement obligations.

There is no obligation upon the Federal Government to pass such laws. An international agreement does not impact upon the domestic law of Australia without domestic legislation (except for peace treaties) - Tasmanian Wilderness Society (1982) 153 CLR 270.

Is there an argument for self-executing treaties which would save time and ensure that international posturing as a good world citizen is converted into domestic compliance with international agreements? (see Ah Hin Teoh hand out).

Minister for immigration v Ah Hin Teoh (1995) 128 alr 353

Fact

Respondent's application for residence status was rejected because he was serving drug jail sentence.

Respondent appealed arguing that the officer, acting as the Minister should, in exercising her discretion, have given consideration to the best interests of his children, as required under the UN convention on the Rights of the Child. That Convention had been ratified by Australia but had not been implemented by domestic legislation.

Majority:

1. Ratification of a convention can give rise to a legitimate expectation that the decision maker will exercise its discretion in conformity with the terms of the Convention.
   
2. Ratification is a positive statement by the Government to the world and Australians that the Government and its agencies will act in accordance with the Convention.
   
3. That positive statement is an adequate foundation for a legitimate expectation, without statutory or executive indications to the contrary, that admin. decision makers will act in conformity with the convention and treat the interests of the children as "a primary consideration".

Minority:

1. Ratification is only a statement to the international not the national community.
   
2. Would make decision makers work impossible because would need to be aware of 900 treaties that Aust. is a party to.

The Commonwealth Government has indicated that it intends to legislate to indicate that the entering into of an international treaty is not a reason for raising any expectation that government decision makers will act in accordance with the treaty if it has not been enacted into Aust. law

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TRADE & COMMERCE WITH OTHER COUNTRIES & AMONG THE STATES SECTION 51(I) - SCOPE OF THE POWER

1. Is construed broadly - Australian National Airlines Commission (1976) 138 CLR
2. Trade and Commerce has ordinary meaning includes all the commercial arrangements of which transportation is the direct and necessary result, the mutual communing, the negotiations, verbal and written, the bargain, the transport and delivery - W & A McArthur Ltd (1920) 28 CLR 530
3. Laws authorising the Commonwealth to undertake commercial activities (eg airline) is a law wrt Trade and Commerce Australian National Airways (1945) 71 CLR 29
4. Trade and Commerce includes not only sale and disposition of goods but also the transport of goods and people (eg rail, air etc transport) - Australian National Airways (1945) 71 CLR 29
5. Mere intra-state preparation for interstate trade in goods is not part of interstate trade - Beal (1966) 114 CLR 238
6. The Commonwealth can legislate for matters that are incidental or ancillary to interstate Trade and Commerce - Grannall (1955) 93 CLR 55. For example, regulations that control abattoirs that export meat because it affects export trade - Noarlunga Meats (1954) 92 CLR 565, to regulate trade may be able to regulate activities in the factory, field or mine. "All acts or processes which can be identified as being done or carried out for export".
7. It does not matter that the purpose of the legislation may be both regulation of interstate Trade and Commerce and protection of the environment, it is still valid - Murphyores (1975-76) 136 CLR 1
8. But must still retain (artificial) distinction between inter and intrastate Trade and Commerce Wragg (1953) 88 CLR 353
9. For a law to be "incidental " to the power it must have sufficient connection eg regulations that deal with the stimulation/authorisation of intrastate air travel (profit margins commerce) do not have sufficient connection but regulations that deal with intrastate air safety do - Airlines of NSW (1965) 113 CLR 54 and AN Airlines Commission (1976) 138 CLR 492
10. BUT Murphy J dissent: States not given exclusive power over intrastate T &C, Commonwealth can enter this area provided the law is relevant to (wrt) interstate Trade and Commerce, laws dealing with efficient competitive and profitable conduct of interstate Trade and Commerce are within power.

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FOREIGN CORPORATIONS AND TRADING OR FINANCIAL CORPORATIONS FORMED WITHIN THE LIMITS OF THE COMMONWEALTH SECTION 51(xx) - SCOPE OF THE POWER

Tasmanian Dams Case - (1983) 158 CLR 1 afforded the Commonwealth very wide power. Laws covering all internal and external relations of all or any of the above corporations, any aspect of the affairs of such corporations, is not restricted to their trading activities.

Re Dingjan (1995) 128 ALR 81 - restriction

1. To be valid under 51(xx), the law must have an effect on corporations that it does not have on the rest of the population, it must discriminate between corporations and other people. Must look at the way the law operates upon corporations, it is not enough that the law impacts on all people including corporations.
2. In reality and substance, there must be a substantial connection - the law must operate on the rights, duties, powers or privileges of corporations.
3. It is not enough just to mention corporations, the conduct it regulates must effect the corporations or their officers, employees or share holders.

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EXTERNAL AFFAIRS POWER - SECTION 51(XXIX) - SCOPE OF THE POWER

This is a very broad power and includes power to enter treaties and conventions - Burgess (1936) 55 CLR 608, Koowarta (1982) 153 CLR 168

1. Implied restrictions on the power because of Federal nature of the Constitution.
2. If a topic is of international concern then it is within the EA power
3. Mere fact that the treaty is "genuine" is enough to bring any subject matter within the External Affairs power because it is then a matter of international concern. (Tasmanian Dams Case (1983) 158 CLR 1, Richardson (1987) 164 CLR 161)
4. The fact that the Government has entered into a treaty/convention is sufficient to show that the subject matter is of international concern
5. can legislate with resect to all aspects of Australia's participation in international affairs
6. The law must carry into effect or comply with provision of a treaty
7. BUT the law must be reasonably capable of being viewed as appropriate or adapted ie reasonable proportionality between the law and the purpose of discharging the obligation - eg slaughter all sheep in Australia to meet treaty obligation that Australia safeguard against a sheep disease found overseas but not in Australia
8. May be enough that a law is wrt External Affairs if it ensures compliance with an international recommendation or international objective or with the spirit of a treaty without an exact written obligation under an international agreement ie (international concern is enough) Polyukhovich (1991) 172 501

Questions arise such as does the External Affairs power cover acts, matters or things outside Australia or must there be some nexus between Australia and those acts?

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THE PEOPLE OF ANY RACE FOR WHOM IT IS DEEMED NECESSARY TO MAKE SPECIAL LAWS - SECTION 51(XXVI) - SCOPE OF THE POWER

Tasmanian Dams Case - (1983) 158 CLR 1

1. "race" has wide non-technical meaning includes biological element, physical similarities, a common history, a common religion or spiritual beliefs, a common culture - a sense of identity
2. "Australian Aboriginal" a person of aboriginal descent, albite mixed, who identifies himself as such AND who is recognised by the Aboriginal community as Aboriginal.
3. "special laws" can benefit interests of a particular race and benefit whole of mankind. Koowarta (1982) 153 CLR 168. It is a discriminatory power that can be used to pass benevolent or repressive laws.

The laws can cover any area of human activity including protection of cultural and spiritual heritage. WA v Commonwealth (1995) 128 ALR 1.

A law may be "special" even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race.

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FINANCIAL POWERS

Taxation; but so as not to discriminate between States or parts of States - section 51(ii)

"Taxation" includes:

• income tax,
• customs and excise,
• tax concessions
• "Excise" includes all taxes upon or in respect of a step in the production, manufacture, sale or distribution of goods - Hermatite Petroleum (1983) 151 CLR 599.

Section 90 - Commonwealth has exclusive power to raise duties of customs and excise

States can impose "royalties" - which set the amount to be paid by considering the value of the privilege conferred by the licence or royalty - Harper 63 ALJR 687

Section 81 to 83 and section 96 - Commonwealth has power to spent revenue raised for purposes that are incidental to the powers the Commonwealth has under the Constitution - Davis (1988) 63 ALJR 35

Commonwealth can grant financial assistance to any State on such terms and conditions as the Parliament thinks fit - section 96

Therefore Commonwealth has wide spending discretion to encourage conservation and protection.

Section 92 - Trade commerce and intercourse between the States must be absolutely free. Must distinguish between regulation (OK) and restriction/prohibition (not OK). Laws cannot discriminate against one State.

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IMPLIED POWERS AND PROHIBITIONS IN THE CONSTITUTION

• Nationhood power
• Federal nature of the Constitution

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TEOH CASE

"Ratification is not to be dismissed as a merely platitudinous or ineffective act" Ratification on its own, "in the absence of statutory or executive indications to the contrary" is adequate foundation for a legitimate expectation that decision makers will act in conformity with the Convention.

10 May 1995 - Evans and Lavarch, following High Court ruling, made an executive statement that the entering into of a convention does not raise any expectation that decision makers will act in conformity with that convention, if it has not been enacted into legislation.

The Administrative Decisions (Effect of International Instruments) Bill 1995. - not yet passed into law provides clear statutory indication that conventions must be passed into domestic law to have domestic effect and decision makers need only comply with Australian legislation

BUT note High Court comment "is not platitude or ineffectual act" - so avenue for argument - What's the point of conventions that are not passed into domestic law? Especially in an era when environment protection is national and international issue - exert pressure on Government to live up to its commitments.

Also High Court indicated that the provisions of a convention that Australia is a party to may be used as a legitimate guide to the development of the common law, but when not incorporated into domestic legislation - use this approach carefully.

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