Fact
Sheet 1
Introduction to Environmental Law
and the Legal System in the ACT
This
Fact Sheet provides basic information about the sources of environmental
and planning laws within the Australian legal system.
Other Fact Sheets in this series cover topics including Commonwealth
Environmental Law and an Overview of Environmental Law in the ACT
Index
The
Australian Legal System
Legislation
The
Common Law
Criminal
Law
Civil
law
Administrative
law
Contacts
Other
Fact Sheet Titles
The Australian
Legal System
Australia has
a federal system of government in which governmental power is shared
between the Commonwealth and the States. The Commonwealth Parliament
has the power to make laws on specific matters outlined in the Constitution.
State and Territory governments can make laws on all other matters.
The environment is not specified in the Constitution as a Commonwealth
matter, and while many environmental laws have been made by State
and Territory governments, the Commonwealth Parliament has also
enacted a large number of environmental laws.
However,
other sources of legislative power in the Constitution have been
used by the Commonwealth to make important Commonwealth laws related
to the environment. An example is the Commonwealth external affairs
power, which has been used for laws implementing international environmental
treaties such as the United Nations World Heritage Convention (Tasmanian
Dams Case).
The Australian
Capital Territory (ACT) and the Northern Territory (NT) have similar
(but not identical) powers to State governments as a result of being
granted self-government by the Commonwealth.
A third tier
of government, local government exists in the States and the NT.
There are no local councils in the ACT, so local environmental matters
are generally dealt with by the ACT government.
[Top]
Legislation
Legislation(also
known as Statutes, or Acts) is passed by the Commonwealth Parliament,
State parliaments or Territory legislative assemblies. . Generally,
if there is an inconsistency between a Commonwealth law and a state
or territory law, the Commonwealth law will prevail. The Commonwealth
may also pass a law specifically to over-rule a territory law.
Before being
passed by the parliament, legislation is known as a Bill. Some Bills
are considered in detail by parliamentary or legislative assembly
committees, which may provide the public with an opportunity to
make submissions about the Bill in question. These committees make
recommendations to parliament about whether the Bill should be passed
and whether any amendments are required.
Parliaments
and legislative assemblies may also delegate powers to make legislation
to the executive government. This delegated or subordinate legislation
takes the form of rules, regulations, ordinances and by-laws. In
the ACT, s.65 of the Legislation Act 2001 (ACT) states
that delegated legislation tabled in the Legislative Assembly will
become enforceable after six sitting days.
If the meaning
of legislation or a section of legislation is unclear, the following
tools can be used for the purposes of interpretation:
• The Commonwealth and state parliaments and territory legislative
assemblies have all passed Acts which set out the basic rules for
interpreting legislation. The ACT Legislation Act contains
a dictionary setting out the meaning of words and expressions that
are commonly used in ACT laws. Section 133 of the Act, for example,
states that a penalty unit means $100 for an individual and $500
for a corporation. This definition applies whenever the term is
used in ACT legislation, except where otherwise stated in an Act.
• Many Acts contain a definitions or interpretation section,
often towards the beginning of the legislation, or as a dictionary
at the end of the Act. If a term is used anywhere in that Act, its
meaning as set out in the definitions section may be substituted
for that term.
• Many Acts contain a section defining the Act's objects or
purposes. This section can sometimes assist in interpreting the
meaning of a particular part or section of the Act that seems unclear.
• When a Bill is introduced into parliament it is accompanied
by an explanatory memorandum. This document and second reading speeches
of ministers in parliament about the Bill may clarify the meaning
of legislation.
All ACT legislation and regulations can be found on the ACT Legislation
Register, which can be accessed at www.legislation.act.gov.au.
[Top]
The Common
Law
The common law
is the body of law made by judges over time. It is based on earlier
decisions by judges (precedents) on disputes brought before courts.
There is a hierarchy of courts, with judges being bound by decisions
of courts higher in the hierarchy. In the ACT, the lowest court
is the Small Claims Court, followed by the Magistrate’s Court,
the Supreme Court, with appeals possible to the Full Court of the
Federal Court, with the High Court being the highest in the hierarchy.
If a case in the Magistrates Court is unsuccessful, it can generally
be appealed to the Supreme Court, and then to higher courts (subject
to rules about what can be appealed).
As legislation
takes precedence over case law, it is generally open to parliament
to change case law principles that it considers inappropriate.
The main categories
of common law relevant to environmental protection are nuisance
and negligence.
[Top]
Criminal Law
Criminal law
involves government action against a person for commission of a
criminal offence. Such offences usually carry penalties of fines
or imprisonment. Due to these serious consequences, the standard
of proof required is “beyond reasonable doubt”.
The Environment
Protection Act 1997 (ACT) contains many examples of criminal
offences. For example, it is an offence for a person to knowingly
or recklessly cause serious environmental harm, with a penalty of
a $200,000 fine, five years’ imprisonment or both.
[Top]
Civil Law
Civil law involves
disputes between two or more parties. Individual persons, corporations
or governments may be parties to a civil dispute. The successful
party may obtain an award of money (damages) or some other type
of court order (injunction) or declaration. An injunction can be
a useful remedy in environmental cases because it can prevent environmental
damage being done, or ensure that action is taken to remedy a problem.
A lower standard of proof, “on the balance of probabilities”
applies in civil cases.
Two areas of
civil law that may be relevant to environmental protection are nuisance
and negligence. Both these areas of the law are known as ‘torts’
(civil wrongs) and are mainly governed by the common law rather
than by legislation.
The law of nuisance broadly concerns the protection of a person’s
land from damage or from activities that interfere with the enjoyment
of that land. Nuisance can involve, for example, water escaping
from a dam, pollutants escaping from a mining operation, fumes escaping
from an industrial process, or noxious weeds spreading from one
property to another. However, nuisance is of limited use in protecting
the environment because it only protects an individual’s interest
in land and many of these situations are now dealt with more comprehensively
by legislation dealing with pollution and other environmental harms
(see Fact Sheet 11: Pollution Control
Law in the ACT)
In an action
for negligence, it is necessary to show that the defendant owed
you a duty of care, that he or she breached that duty, and that
you suffered damage as a result. It is possible that the law of
negligence could apply in some situations where there has been environmental
damage. In some circumstances, governments can also be sued for
breach of statutory duties. A disadvantage of bringing a legal action
for negligence or nuisance is that, as with most court action, it
will often be complex, expensive and financially risky. That said,
it is possible to bring minor matters before the Small Claims Court
in the ACT at relatively low risk.
[Top]
Administrative
Law
Administrative
law is in fact a key part of environmental law as it is a body of
law concerning the review by Tribunals and Courts of decisions that
have been made by government.
Individuals
and community groups may be able to use administrative law to challenge
decisions made by ministers, departments and government authorities
that affect the environment. Possible options are the ACT Administrative
Appeals Tribunal (AAT), judicial review by a court, or making a
complaint to the ACT Commissioner for the Environment.
For decisions
made by ministers and other government officials in the ACT, review
by the ACT AAT may be available. In reviewing a decision, the AAT
deals with the merits of the decision, that is, it stands in the
shoes of the original decision-maker and decides whether the decision
is a good one or not. It can support the existing decision, attach
conditions to it, make an entirely new decision, or send the matter
back to the original decision-maker with directions on how to reconsider
that decision. The procedures in the AAT are relatively informal.
This is a very important avenue of review in environmental cases
in the ACT.
Most decisions are also subject to judicial review by the courts.
Judicial review generally involves a challenge to the lawfulness,
rather than the merits, of a decision. In the ACT, these cases are
heard initially in the Supreme Court, so are much more complex (and
expensive to run) than cases in the AAT. For further information,
see Fact Sheet 10: Challenging
Decision Making about the Environment.
For decisions
made by Commonwealth officials, judicial review is usually available
in the Federal Magistrates Court, Federal Court and High Court.
For some types of decisions, review of the merits of the decision
is also available in the Commonwealth AAT.
[Top]
More Information and Contacts
Environmental
Defender’s Office
Public Trustee House
Level 1, 4 Mort Street
(In the Bus Interchange)
Canberra ACT 2601
Ph: (02) 6247 9420
www.edo.org.au/edoact
ACT
Administrative Appeals Tribunal
ACT Magistrate’s Court Building
4 Knowles Place
Canberra ACT 2601
Tel 6217 4444
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
www.courts.act.gov.au/magistrates/aat/aat.html
ACT
Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
Further Information and Disclaimer
The law described
in this Fact Sheet is current at November 2005.
The ACT EDO
Fact Sheets have been designed to give readers plain English background
knowledge to planning and environmental decision making in the ACT.
The ACT EDO Fact Sheets cannot replace the need for professional
legal advice in individual cases. The information contained in this
publication is for general reference only. If you are contemplating
legal action, you should seek legal advice on the specific facts
of your case as soon as possible. These Fact Sheets cannot replace
the need for professional legal advice in individual cases.
Duplication
and reproduction of the information provided in any ACT EDO Fact
Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT
EDO Fact Sheets Project was carried out with the assistance of funds
made available by the ACT Government under the ACT Environment Grants
Program.
Important: Readers
are advised to seek professional legal advice in relation to specific
legal questions.
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work.
Other
Fact Sheet Titles
Note: The
other fact sheet titles are unavailable at this time as they are
being updated following legislative amendments and administrative
changes. These fact sheets will be added as soon as possible.
Fact
Sheet 1 Environmental and Planning Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating Decision Making about the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact Sheet 11
Pollution Control
Law in the ACT
Fact Sheet 12 Noise Pollution Control in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information Law (Commonwealth)
Fact Sheet
15 Incorporating an Environmental
Group in the ACT
For information
about State environmental legislation, visit the national EDO website.
[Top]
HOME |
