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“Environmental law” refers to the whole suite of laws dealing with our environment – how it is used, how we protect its values, the criteria against which proposals will be assessed, who makes decisions, who gets a say , what obligations landowners and business operators have to minimise their impacts and what the penalties are for failing to comply with those obligations.

SOURCES OF LAW

There are two primary sources of environmental law:

  • Legislation
  • Common law

LEGISLATION

Legislation (or statute), the main source of environmental law in Australia, includes:

  • Acts – these are the highest form of legislation and set the rules for how particular issues are dealt with.
  • Regulations (sometimes called “delegated legislation” or “statutory instruments”) – these are instruments designed to provide operational detail to implement the provisions of Acts.  For example, an Act may say that noise from industrial operations must be kept to an “acceptable level”, and the supporting Regulation may set a clear limit which, if exceeded, would not be considered “acceptable”.  Regulations may also be made to declare listed threatened species or new reserve boundaries, list banned chemicals or set out information requirements for development applications.  Regulations are more easily updated than Acts but have the same force of law .

To access Tasmanian legislation, visit the Legislation website.

To access national legislation, visit the ComLaw website.

Acts can also give powers to other public agencies to prepare plans and policies about the environment.  In particular, Tasmanian laws currently give powers to local councils to develop Planning Schemes to guide use and development throughout Tasmania.  See “Planning and Development” for more information about how planning schemes are developed.

How is legislation made?

To find out how Tasmanian legislation is made, click here.  Importantly, changes to Acts must be approved by both Houses of Parliament:

To find out how Commonwealth legislation is made, click here.  New or amended Acts must be approved by both Houses of Parliament:

Bills (that is, draft legislation) are drafted by the Australian or Tasmanian Office of Parliamentary Counsel under instruction from the government or private Member proposing the Bill. For more detailed information about the role of the OPC and the process for drafting legislation, you can download the OPC Manual for the preparation of Bills.

If a Member of Parliament plans to introduce a Bill, they must give advance notice to Parliament to allow the Bill to be listed.  This gives other members a chance to prepare for any debate about the Bill.  You can check the Order of Business the night before a parliamentary sitting to see what is listed for the next day.

You can also attend parliament to watch debates, or listen / watch online:

Once a Bill has been passed, notice of the new legislation (including details of the date when the legislation will commence) will be published in the Government Gazette.

How are regulations made?

Unlike Acts, regulations do not need to be approved by parliament – they can take effect as soon as they are published in the Gazette.  Click here for a guide to how regulations are prepared.

Although parliamentary approval is not required, regulations must be tabled in both Houses of Parliament within 10 sitting days of being published in the Gazette.  Within 15 sitting days of the regulation being tabled, any member of Parliament may put a motion for the regulation to be disallowed.  If a majority of members of that House agree to disallow the regulation, the regulation will be void from the date of the parliamentary resolution.

If you are concerned about the impact of a regulation, you can lobby members of Parliament to put a motion for disallowance.  Click here for tips on lobbying.

 A disallowance is not retrospective.  This means that any action done under the regulation before it was disallowed will still be lawful.

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Common law

Common law (or judge-made law or case law) refers to laws made by the courts.  Our various courts make judgments on a range of matters, including:

  • deciding that legislation is invalid (for example, because it is contrary to the Constitution)
  • interpreting legislation and settling disputes about what legislation means in practice (for example, the court may determine what “interests are affected” means in the context of whether someone has a right of appeal)
  • resolving common law issues that may not be addressed in legislation, such as public nuisances
  • determining whether a particular activity involves a breach of the law
  • deciding what penalties are appropriate for unlawful activities
  • invalidating decisions which have not been made in accordance with the law (for example, where a local council has not properly advertised a development application)

In many cases, judgments set a ‘precedent’ and future cases dealing with the same issue / same provision of the legislation heard in the same or a lower court must be decided  in the same way.  This helps to make sure that legislation is implemented in a consistent way.

To access Tasmanian Supreme Court judgments, click here.  You can also access online Federal Court and High Court judgments.

 The initial decision making body for most environmental law issues in Tasmania, the Resource Management and Planning Appeal Tribunal, is not a precedent-setting body. This means that, although the Tribunal will generally make consistent decisions, it is not required to adopt the same interpretation of a provision of a planning scheme if it later considers that a different interpretation is more appropriate.

To access Tribunal decisions, click here.  If the decisions you are looking for were made prior to 1994, you can search the archives here.

  Legislation can override common law. This means that, if a court makes a decision that a provision of an Act must be interpreted in a particular way, Parliament may decide to change the Act.  The changes may take effect retrospectively so that actions which were previously unlawful are deemed to have been lawful.

For example, after a number of court cases successfully challenging the controversial Parliament Square development in Hobart, the Tasmanian government passed legislation declaring that permits issued for the development were lawful.

International law

International environmental treaties and conventions are not a direct source of environmental law in Australia, unless they have been expressly referred to in Australian legislation. However, international laws can influence how legislation or common law is applied in Australia.  International law is also useful as a lobbying tool to explain why Australian laws need to be improved (for example, to better meet our obligations to contribute to global climate change efforts).

For more information about how international treaties and conventions are negotiated and implemented, visit the Australian Government Department of Foreign Affairs and Trade website.

Occasionally, international laws can be used to achieve important environmental objectives.  For example, there is a lot of optimism that the climate change agreement reached in Paris will have a significant influence over domestic climate policies in coming years.

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INTERNATIONAL LAW: WHALING

Australia challenged Japan’s southern ocean whaling activities in the International Court of Justice, arguing that the whaling programme was not a “research” program allowed under the International Convention on the Regulation of Whaling (which both Australia and Japan are parties to).
The case of Australia v Japan was decided in favour of Australia on 31 March 2014, with a majority of the Court finding that the whaling programme did not satisfy the Convention requirements for “research” .  As a result, the permits Japan had issued for its whaling research program were not allowed under the Convention.
However, the Japanese government subsequently elected to remove itself from the jurisdiction of the ICJ on whaling issues and has commenced a new whaling programme – highlighting the limitations of international laws.  For more information click here.

 

Law vs policy

Policies regarding environmental management and planning are often made by Ministers, Government Departments or agencies, local councils or statutory authorities. Policies are not laws and are generally not enforceable (unless they are referred to in legislation, such as the Code of Practice for Aerial Spraying).   Instead, policies are designed to guide decision-makers in how they apply the law.

Policies may be given legal force by being incorporated into licence or permit conditions. For example, permit for a quarry operations generally require the operator to comply with the Quarry Code of Practice.  If the Code of Practice is not complied with, the operator will be breaching the permit conditions and enforcement actions can be taken by the local council (see “Planning and Development“).

There are no legal requirements to invite comments on draft policies or plans.  However, the public are often given an opportunity to comment on significant draft policies.

Click here for details of current opportunities to comment on government policy proposals.  Keep an eye on the Public Notices section of the newspaper, or subscribe to the EDO Tasmania bulletin to find out about upcoming opportunities to have your say.

 

Changing the laws

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In 2015, EDO Tasmania produced a detailed law reform report recommending a suite of changes to Tasmania’s environment and planning laws

Public comments are often invited when the government proposes to make or amend planning or environmental laws.  While there is no legal requirement to consult about proposed changes, State and Commonwealth governments often release discussion papers or draft legislation for comment prior to making controversial changes.

Click here for details of current opportunities to comment.  Keep an eye on the Public Notices section of the newspaper, or subscribe to the EDO Tasmania bulletin to find out about upcoming opportunities to have your say.

Click here for tips on how to prepare comments on proposed changes to laws.

Rather than waiting to respond to government proposals, if you believe that existing laws or policies are not adequately protecting the environment you can contact the government to request that they initiate changes.

Click here for tips on lobbying for legislative changes.