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The information contained in this fact sheet is current as at 23 April 2008

Topic 1 - Introduction to Environmental Law

1.5 The Commonwealth Constitution and Environment Laws

Unlike State parliaments, the Commonwealth Parliament cannot make laws on any matter that it wants to. It is limited by the powers given to it under the Australian Constitution.

The Commonwealth has no specific power to make laws in relation to environmental matters. However, it has successfully used its other constitutional powers, such as those over external affairs, corporations and taxation, to pass laws relating to environmental matters.

These indirect powers have been interpreted broadly by the courts. This has enabled the Commonwealth to make decisions based solely on environmental reasons, even though the power giving the Commonwealth authority relates to a different topic.

External Affairs Power

Under section 51(xxix) of the Constitution, the Commonwealth is given power over external (or foreign) affairs. This has been the most important ‘head of power’ for environmental matters over the past twenty years.

The external affairs power allows the Commonwealth to pass laws that implement the terms of an international treaty which Australia has signed, or where the subject matter of the legislation is of ‘international concern'.

This principle was established in Commonwealth v Tasmania (1983) 158 CLR 1. In this case, the Commonwealth Government opposed on environmental grounds a proposal by the Tasmanian Government to dam the Franklin River.

The Commonwealth relied on the International Convention Concerning the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983.

Using its powers under the newly created legislation, the Commonwealth prevented the Tasmanian Government from damming the Franklin River because to do so would have changed the natural characteristics of the listed area.

In the High Court, Tasmania argued that the legislation was invalid, but the Commonwealth contended that the use of the external affairs power allowed it to pass domestic laws to give effect to Australia’s obligations under international treaties. The High Court upheld the Commonwealth’s position.

The High Court’s approach to the external affairs power has resulted in a substantial increase in the Commonwealth’s powers in relation to environmental matters. For example, the Environmental Protection and Biodiversity Conservation Act 1999 is based largely on international environmental treaties such as the Convention on Biological Diversity 1992.

Other Constitutional powers

Other Constitutional powers used by the Commonwealth to protect the environment include the corporations power, the trade and commerce power, and taxation and financial powers.

For example, in Murphyores v Commonwealth (1976) 136 CLR 1, the Commonwealth Government refused to grant a sand mining company a licence to export mineral sands from Fraser Island because of environmental concerns about the effect of the mining on the island.

The sand mining company argued that it was unconstitutional for the Government to take into account environmental considerations in applying a law which related to export permits, which itself was based on the trade and commerce power. This argument was unanimously rejected by the High Court.

Based on the principle established in the Fraser Island case, the Commonwealth has constitutional power to regulate the environmental impact of any activity that requires a Commonwealth approval or licence.

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