Chapter 2

A graphic way to understand environmental law is to take a look at recent history.

Until the 1970s Tasmania had virtually no specific environmental controls. We had no government agencies to look after the environment, no national parks department, no environmental control department. Planning for the future was, at best, ad hoc.

A first wave of environmental awareness struck the world in the 1960s and Tasmania, like elsewhere, introduced a number of very basic environmental laws early in the 1970s. These were basically piecemeal attempts to deal with particular and obvious problems.

These new laws did not fit in with each other. There was no guiding philosophy. Industries that polluted were simply given 'licences to pollute'. Ordinary citizens generally had no rights of appeal, because the public was generally regarded as an antagonist or a nuisance. The only recourse for concerned citizens was to knock on politicians' doors or create a fuss in the media.

By the 1980s, public concern about deteriorating environmental quality had grown to such an extent that politicians were increasingly unable to cope with the ever-increasing burden of issues directly confronting them. There was an obvious need for comprehensive environmental and planning laws that:

• are integrated with each other
• have common objectives (guiding philosophy)
• enable the community to be involved

To do this a lot of old notions had to be thrown out. Imaginations had to be challenged.

In response to the above challenges, environmental law-making went through a dramatic shift and a rash of new laws were introduced during the 1990s. (☞ Go to the next two chapters for an outline)

Even as this handbook was being prepared, several new environmental laws were being prepared for parliament. Protecting the environment today relies to a great extent on community participation. This is because the environment is now rightly regarded as public property and many of the new laws governing it are pitched in the public interest and with public involvement in mind.

Not only do ordinary people have a right to participate, a number of our new laws make it mandatory for the public to be consulted.

We use the term 'environmental law' to refer to the full range of laws directed towards protecting all aspects of our natural and human environments.

These laws are outlined in the following chapters. The purpose of this chapter is to provide a framework for understanding where those laws come from and how they are enforced.

One legitimate and important aspect of community participation is the ability to take regulators and developers to court for failing to comply with requirements of environmental law.

However, the outcome of litigation is often uncertain and can be costly and unsatisfactory for all involved. If all parties have a fuller understanding of the law in the first instance, legal battles may well be avoided. If the community is properly involved at the planning stages, outcomes are more likely to be publicly acceptable.

Environmental law is much more than litigation. Therefore this guidebook also gives important information about our planning laws (☞ Go to Chapters 4 & 5) and about taking action other than litigation (☞ Go to Chapter 13). We hope through this guidebook to assist and promote community participation in environmental decision-making from the ground up – in the courts and out of the courts.

The first thing you need to do when you face an environmental problem is decide whether you should be using federal or state laws to deal with it.

There are governments and governments!

There are actually three levels of government in Australia – federal, state and local. It is important to understand their basic roles.

Although all three levels of government make laws (or by-laws) and regulations concerning the environment, most environmental powers lie with state government (though these are sometimes delegated to local government). However, there are some very important links to federal law.

When an environmental problem arises, you will mostly need to refer to state legislation, described throughout this handbook.

State parliaments pass laws to regulate conduct which is likely to affect environmental quality. This includes the power to make laws regulating the use of land as well as natural resources. (☞ Go to Chapters 3 and 4 to see how Tasmania's environmental laws are set up.)

You will also see, throughout this handbook, that municipal councils in Tasmania play a very significant role in environmental protection. However, these local government powers are mostly conferred on them through state government Acts – eg. through the Land Use Planning and Approvals Act.

Local governments (ie councils) are generally your first port of call if you are affected by a development activity or an environmental problem. Tasmanian councils have been given the authority to handle most proposed new development applications as well as pollution control.

Councils therefore have powers to make decisions that can have a big impact on your local environment. Things such as heights of buildings, siting developments, subdivisions, land clearance, quarries, new buildings and factories and the management of municipal waste are all dealt with by local government, often in cooperation with relevant state government agencies. (☞ Go to Chapters 4, 5 & 6 to find out how this system works.)

In the case of a large quarry, for example, the relevant local council, Mineral Resources Tasmania and the Environment Division may all be involved.

By far the most significant role of local government is to develop and implement Planning Schemes. These regulate most land use and development activities through the Resource Management and Planning System (RMPS). (☞ Go to Chapters 4 for details on how the RMPS works)

Although most local government powers are controlled via state government legislation, councils also make their own discrete by-laws, many of them relating to environmental controls.
(☞ Go to Chapter 5 and Chapter 13, ‘Taking Action,’ for tips on how to deal with your local council)

When dealing with environmental problems, you will sometimes need to refer to Commonwealth law.

In modern times the environment has become a high profile public issue, both nationally and internationally. Many environmental problems are clearly national in their scope and require national (as well as local) solutions.

However, when Australia's constitution was drafted in 1900 the environment was not an issue, so the federal government was not given explicit power to make laws about environmental matters. Consequently, to this day we have a rather confused division of responsibility between states and the federal government.

This confused responsibility has severely impeded effective environmental planning in this country and has resulted in many bitter controversies and protracted legal debates.

In an attempt to clarify eternal confusion between state and federal environmental powers, significantly redrafted federal environmental legislation commenced in 2000.

These changes fundamentally re-defined how the commonwealth interacts with the states on environmental issues having national importance. However, the new Act (the EPBC Act) provoked public controversy itself, because it restricts the Commonwealth’s powers to intercede on environmental issues to a limited range of circumstances.

Generally speaking, you may need to refer to commonwealth law if you are dealing with issues of national importance such as World Heritage protection or protection of threatened Australian flora and fauna.

☞ Go to Chapter 15 for a summary of how the all important Environment Protection and Biodiversity Conservation Act (EPBC) operates

Although the Australian government has had the constitutional power to pass laws that over-ride state laws, in the main it has chosen not to do so for political reasons.

When issues of obvious national significance have arisen, the federal government has chosen, instead, to deal with them indirectly by:

1. using its reserve powers
2. getting all the states to agree to a common approach
3. providing federal funding only if certain conditions are met
4. disallowing the federal government itself from breaching its own laws

When the proposal to dam the Franklin River became a national issue in the early 1980s the federal government successfully used its 'external affairs' powers to win its case in the High Court. This was a landmark in our nation's history, because it clarified that the federal government does have the legal authority to make environmental decisions, even when the power it is using was intended to relate to something else.

The Franklin Dams case resulted in a substantial increase in the federal government's ability to regulate environmental matters. For instance, the commonwealth uses its 'export' powers to exert some control over native species that are traded on the world market.

In similar ways the federal government has indirectly used its controls over corporations and its controls over national taxation to force environmental standards.

In a less direct way, the federal government sometimes encourages environmental responsibility through federal grants – by insisting that monies be spent on Landcare, for example.

The federal government does have a range of legislative powers to deal with international issues that clearly cannot be managed by state governments. These include whaling, ozone depletion, trafficking in wildlife, protection of Antarctica and ocean dumping (ocean pollution). Where federal laws come into play, we refer to them in the relevant sections of this guidebook.

☞ Go to Chapter 15 to see how Commonwealth laws apply to Tasmanian issues.

Australia is signatory to over 90 international environmental agreements, (on issues such as World Heritage, climate change, protection of wetlands and endangered species, marine pollution, and biodiversity). To give effect to these treaties, the Commonwealth has put into effect a range of national Acts and agreements to attempt nationwide compliance.

A very basic understanding of how the legal system works will be helpful for those engaged in environmental defence.

Different types of law can be used to defend the environment.

Most environmental cases are based around either:-

• Acts of Parliament (ie statute law) or
• Legal precedent (ie common law).

Judges are able to make decisions using either of these two branches of law – or a combination of both.

This is the main legal device used to protect the environment. A statute is a law made by parliament. It is more commonly known as an Act of Parliament, or legislation. Governments pass laws in order to regulate conduct which is likely to affect our various environments. The courts then have a key role in enforcing laws made by parliament. (☞ Go to Chapter 4 for a listing of key Tasmanian statutes.)

Common law (ie. 'judge made law') is not based on Acts of Parliament but on the court's interpretation of decisions that other judges have made in similar cases. Common law is hard to define to the non-lawyer because it is built on thousands of case histories (called precedents) that have been built up over decades, even centuries.

As more and more Acts of Parliament (ie. statute law) are brought in, there is less and less need to use common law. However, common law can be used effectively to combat a range of activities causing environmental harm (and can be used in addition to statutory remedies). It can be used to prevent a neighbour polluting the air, land or water or causing land degradation or otherwise interfering with a person's use or enjoyment of their land.

Generally speaking, common law is used to protect private interests. By far the most widely used common law action for controlling cross boundary environmental harm is that of nuisance – unreasonable interference with a person's land or use and enjoyment of the land, and to recover loss or damage caused by the interference.

Where an activity interferes with a right enjoyed by the community at large, it is called a public nuisance. Private individuals can take action to stop or prevent a public nuisance, even though that person may have no interest in the land subject to the interference. Public nuisance includes pollution of the air or water. Nevertheless, common law has been largely unable to protect general public interests which have no connection with private rights – such as the public interest in preserving native bush that is home to a rare species of fauna.

If there is conflict between common law and the words of a statute, statute law will override the common law. As statutes are made by parliament, and parliament is sovereign, statutes are 'superior' to common law. However, when interpreting the wording of statutes, judges still need to base their decisions on earlier decisions made with similar facts.

More often than not, environmental law cases deal with challenging particular decisions made by government authorities. This is a branch of statute law known as administrative law.

Administrative law is not about the merits of a particular decision (ie whether the decision is good or bad). It is about the decision making process. The court or tribunal simply decides if there was power to make the decision and if the correct process was followed. This process is called judicial review.

☞ Go to Chapter 13 to find out how a government agency decision can be challenged

A criminal law (as opposed to civil law) is one which can impose a fine or imprisonment on an offender.

Many of the Acts of Parliament described in this handbook contain criminal offences and prescribed penalties. Normally the Act specifies a particular person or body who is responsible for making prosecutions. However, individuals have an ability to prompt the taking of legal action by making a complaint to the specified body or by going to the police or the Director of Public Prosecutions.

Be aware also that environmental defenders can also face prosecution under criminal law. If you protest in a state forest you may be liable to trespass action carrying severe penalties.

☞ Go to Chapter 13 for more information about protecting yourself

An Act of Parliament can become too bulky if all the necessary details are included within it. To cope with this problem, a number of Acts have provision for the making of 'subsidiary legislation'. These are called statutory rules or regulations.

These contain details of how the Act is applied – such as lists of banned chemicals, or lists of threatened species, or procedures that have to be carried out. They are updated from time to time by parliament. Coupled to the principal Act, statutory regulations hold the same force of law as does any other legislation. This handbook makes references to regulations where they are applicable.

Many people mistakenly confuse policy with law.

Governments these days produce mountains of policies, guidelines, strategies, codes of practice… and so forth. These are usually fine sounding words saying what the government (supposedly) aims to do. However, the government is rarely beholden to these policies. They are mainly written for public relations purposes or as a general guide for government officers or commercial operators.

Examples include the Code of Practice for 1080 Poison Use, the Quarry Code of Practice, Environmental Best Practice Guidelines: Management of Riparian Vegetation and the Enforcement Policy for the Water Management Act 1999.

Administrative policies such as these can be used in arguments to try to win your case or to prompt other action being taken. However, they have no force of law (ie statutory force).

Note: Some policy documents DO have statutory force – because they are tied to a specific Act of Parliament (eg the Code of Practice on Aerial Spraying), they have been separately approved by parliament and are enforceable (☞ See Chapter 4).

Policies can also be given legal force by being incorporated into licence or permit conditions (eg a permit for a quarry operation may require compliance with the Quarry Code of Practice), or incorporated into a Planning Scheme (☞ See Chapter 4).

If a court agrees with a case that is put to it, it has the ability to make a range of decisions. For example:

• It can order that an invalid decision made by a public body be quashed.
• It can prevent a decision-maker from making an invalid decision or implementing an invalid course of conduct.
• It can require a public official to come to a decision (where he or she is delaying unreasonably or neglecting to perform his or her duty).
• It can require that conditions be imposed on some activity.
• It can award damages.

These various options are called remedies.

Not always. Many Acts of Parliament contain words like: “This Act binds the Crown”. But there are many exceptions to this.

If you suspect that a government agency or officer is breaking a law, it is generally prudent to assume that they are bound by the law and proceed to make your complaint. The agency or officer will then need to show if an exemption applies in the particular case.

In many cases, individuals are able to initiate court action. However, you may first have to show that you have a legitimate 'interest' in the case. The courts do not usually permit anyone who feels aggrieved to bring an action to court. Often, they ask the person to demonstrate that they have standing.

☞ Go to Chapter 14 for more information about legal standing

In years gone by it was necessary for a person to show that he or she faced property damage before they could take legal action. In those days it was necessary to find such an affected person before an environmental case could be taken to court.

Later on it became legitimate for citizens to initiate legal action if their commercial interests or personal safety were likely to be jeopardised.

In more recent years the issue of standing has been gradually relaxed to allow a broader definition of 'interest', including such issues as your general health, aesthetic amenity or your quality of life. In some instances, open standing is allowed – that is, anyone is able to take action (☞ See Chapter 5).

Legal standing varies from court to court and from issue to issue, depending on the statutes involved.

Normally you will need to show that you will suffer 'special damage', over and above that of the rest of the community. It is generally not sufficient for you just to have a concern about some aspect of the environment. (Nature has yet to be afforded legal rights in our courts – as has been done in India and Chile!)

It is prudent to be aware that parliament can decide at any time to make a new law, thus making an illegal act legal. It can even make such changes apply retrospectively.

Judges cannot overrule parliament. The courts simply interpret written laws and can ensure that they are adhered to. However, courts can decide that particular legislation passed by Parliament is unlawful (for example, if it is not consistent with the Constitution).

In some notable situations such political action has prevented prosecutions from being successful in court. A prominent example in Tasmania was parliament passing a retrospective law to stop legal action against the flooding of Lake Pedder National Park in 1972.

Until recently, Acts of Parliament were written in convoluted legal language. They were rather difficult to get hold of and were often expensive to purchase.

These days they are generally much easier for the non-lawyer to read and understand. Anyone with access to a computer and the internet can readily download them instantly – and for free.

Now is the time to drop your queasiness about Acts of Parliament. They belong to the community, after all!

All legislation, regulations and other important documents can be conveniently obtained via the following internet sites. You can choose to see the original Act, plus any amendments that have been made. Or you can conveniently download any Act brought completely up to date – amendments are automatically consolidated.

Save these sites in your ‘favourites’ folder for instant reference at any time.

Major public libraries and the Environmental Defenders Office have hard copies of some Acts of Parliament, either in book form or as separate Acts.

• The Printing Authority of Tasmania:
  123 Collins Street, Hobart Ph: 6233 3289 or 1800 030 940
  Email: sales@pat.tas.gov.au

• State Government Offices:
  1 Civic Square Launceston Ph: 6336 2101
  State Government Offices:
  68 Rooke Street, Devonport Ph: 6421 7890
  Parliamentary Offices:
  80B Wilson St Burnie Ph: 6434 6252

• For other locations try Service Tasmania Centres www.service.tas.gov.au
  Ph: 1300 13 55 13

• The Printing Authority of Tasmania:
  123 Collins Street, Hobart Ph: 6233 3289 or 1800 030 940
  Email: sales@pat.tas.gov.au

Hints:

• When purchasing an Act… you may need to know the precise name of the Act and the year it was passed by parliament.

• When purchasing Acts… you should pay a little extra to have all subsequent amendments included with the Act.

• When researching an Act… you will have to find these subsequent amendments, and you should continue to check for any fresh amendments. The history of changes includes when the Act or sections came into force or were repealed. (If checking via website this information accompanies each Act. In a library it should be found with each particular Act. Also, see the annual Index to Legislation usually housed with the Acts.)

• Tasmanian Law Handbook: Hobart Community Legal Service, 3rd Edition.
• Environmental Law in Australia: Bates, G, 6th Ed, 2006, Butterworths, Sydney.
• Environmental Law and Policy in Australia: Ramsay, R & Crow, G, 1995, Butterworths, Sydney
• The Bush Lawyer – a guide to public participation in commonwealth environmental law: Environmental Defenders Office (NSW)

• Environmental Defenders Office: (Website)
  131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
  Email: edotas@edo.org.au

• Community Legal Services:
  166 Macquarie Street, Hobart 7000 Ph: 6223 2500 Fax: 6223 2510
  Email: hcls@netspace.net.au
  68 York Street, Launceston 7250 Ph: 6334 1577 Fax: 6331 5237
  Email: lclc@netspace.net.au
  62 Stewart Street, Devonport 7310 Ph: 6424 8720 Fax: 6424 4604
  Email: nwclc@bigpond.net.au

• Law Society of Tasmania:
  28 Murray Street, Hobart 7000 Ph: 6234 4133.

• Departmental Library: 134 Macquarie Street, Hobart
• State Library System (check phone book for locations near you)
• Law Library: 28 Murray Street, Hobart 7000 Ph: 6234 2021
• Parliamentary Library: Parliament House, Hobart 7000 Ph: 6233 6253
• Morris Miller Library: University of Tasmania, Sandy Bay 7005 Ph: 6220 2101
• University Law Library: Cnr Grosvenor Cres & Alexander St. Sandy Bay 7005 Ph: 6220 2063