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The Australian Legal System
and the Common Law ‘Downunder’
SEMINAR 3
Last time:
• Development of Modern Parliamentary Democracy and the rise of the statute
• Equity• Doctrine of Precedent• Australian Legal System:
– European Discovery– Colonisation and Development– Federation
Today:• Australian Legal System:
– Federation– Independence– An Australian Republic?
• Case Study:– The Australian Legal System and the Australian
environment
Your homework:
Question: Queen Elizabeth II is the head of state of how many countries?
Answer: 16
The Queen’s Realms:
• United Kingdom• Canada• Australia• New Zealand• Jamaica• Barbados• The Bahamas• Grenada
• Papua New Guinea• Solomon Islands• Tuvalu• Saint Lucia• Saint Vincent and the Grenadi
nes• Belize• Antigua and Barbuda• Saint Kitts and Nevis.
Federation: 1 January 1901
Independence• World War 1 and Treaty of Versailles
• Consitutional Crisis in Canada and the Balfour Declaration of 1926
• World War 2
• Statute of Westminster (Imp) 1931
• Statute of Westminster Adoption Act (Cth) 1942
IndependenceThe Australia Acts enacted by both the Australian and in the United Kingdom Parliament in 1986
AnAustralian Republic?
Queen visits Australia in 1963: • http://www.youtube.com/watch?v=6ibGwqMM6uULooking back on the 1999 Republic Referendum:• http://youtu.be/rNM3iyCH4doQueen visits Australia in 2011:• http://youtu.be/cfOZ61I5V4E
Australia as a federation
A case study: the Murray Darling Basin
The MDB: some statistics• More than 1 million km2 (Italy = 301,338 km2)• Approx. 14% of Australia’s land mass• Ranges from rainforest and inland sub-tropics to
mallee and semi-arid land• In 1996: home to 2 million people• 3.4 million people directly reliant on its water• 70% of Australia’s irrigated agriculture occurs in
MDB• Accounts for 40% of Australia’s agricultural output
The MDB: some more statistics
• 20 mammal species extinct, 16 mammal species endangered
• 35 endangered bird species• 95% of the river length degraded and 30%
substantially modified• Home to 16 of Australia’s 64 Ramsar
Convention wetlands– http://
en.wikipedia.org/wiki/List_of_Ramsar_wetlands_of_international_importance
“If the day is to come when the Darling and the Murrumbidgee are to be drained dry for irrigation purposes, Australia will be all the happier and all the better for that day having arrived.”
Joseph Carruthers, NSW Delegate to the Constitutional Convention, Melbourne 1898
“Our traditional management plan was don’t be greedy, don’t take any more than you need and respect everything around you. That’s the management plan – it’s a simple management plan, but so hard for people to carry out.”
Tom Trevorrow, Ngarrindjeri Elder, 2010
Question:
• How many jurisdictions play a role in the management of the Murray Darling Basin?
How did this happen? What did it mean for the MDB?
versus
The Constitution & the Environment
• An express Cth environment power?
• Powers of the states with respect to land and natural resources
• Exclusive powers of the Commonwealth (section 52 and section 90)
• Concurrent powers Section 51 (subject to section 109)
Section 51 & Commonwealth environmental law
• (i) trade and commerce with other countries, and among the States;
• (viii) astronomical and meteorological observations;
• (ix) quarantine;
• (x) fisheries in Australian waters beyond territorial limits;
• (xxix) external affairs;
• (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
Commonwealth v Tasmania (1983) 46 ALR 625
(“The Tasmanian Dams Case”)
Tasmanian Dams case: timeline• 1978: a state-owned company, the Hydro-Electric Commission, proposed the
construction of a hydro electric dam on the Franklin river in south west Tasmania The dam would have flooded the area.
• June 1981: the Tasmanian state (Labor Party) government created the a national park of the area to protect the river.
• May 1982: a state government (Liberal Party) was elected and it supported the dam.
• November 1982: the Franklin area was declared a UNESCO World Heritage site.
• 1983 Federal election: a Labor government was elected. It had promised to intervene to prevent the dam and it passed the World Heritage Properties Conservation Act 1983, that enabled it to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World heritage area.
• The Tasmanian government challenged these actions in the High Court
The Tasmanian Dams Case
• The Convention for the Protection of the World Cultural and National Heritage
• Commonwealth legislation prohibited the building of the proposed Franklin Dam in the Western Tasmanian Wilderness Area, which had been included on the World Heritage List, established under the Convention
• The external affairs power will support Cth legislation that is reasonably appropriate and adapted to the task of implementing an international treaty regardless of whether the subject matter of the treaty is inside or outside Australia.
The Constitution & the River Murray• Section 98• Section 100
versus
Sections 98 & 100
• Section 98: The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.
• Section 100 The Commonwealth shall not, by any law or regulation
of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
CO-OPERATIVE FEDERALISM
MDB TIMELINE
1900: Federation1914: First Interstate Agreement (Cth, SA, NSW, Vic) sharing
water + infrastructure costs1992: Second Agreement (Cth, SA, NSW, Vic, Qld and ACT later) 1992: COAG National Strategy for ESD1994: COAG Water Reform Framework2004: National Water Initiative and Living Murray Agreement 2007: ten-year National Plan for Water Security (including a
cap on water diversions administered by the Cth)2007: Water Act negotiated, introduced, and passed2008: Water Act commenced2008: Amendments to Water Act.
Commonwealth power was extensive but ...“not as extensive as to give us a close to ideal scheme.”
John Howard, Prime Minister July 2007
WHY ???
What about the Water Act 2007 (Cth)
See sections 9 and 9A:
A so-called “hotch-potch” of Constitutional Powers
The Water Act , the external aff airs power and internati onal agreements
• 1971 Ramsar Convention• The 1992 Convention on Biological Diversity• 1994 United Nations Convention to Combat Desertification• 1979 Convention on the Conservation of Migratory Species of
Wild Animals• 1992 UN Framework Convention on Climate Change• The Agreement between Australia and China for the
Protection of Migratory Birds (CAMBA)• The Agreement between Australia and Japan for the
Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA)
• The Agreement between Australia and the Republic of Korea on the Protection of Migratory Birds (ROKAMBA)
The Water Act: Objects (section 3)(a) to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin
water resources in the national interest; and (b) to give effect to relevant international agreements (to the extent to which those agreements
are relevant to the use and management of the Basin water resources) and, in particular, to provide for special measures, in accordance with those agreements, to address the threats to the Basin water resources; and
(c) in giving effect to those agreements, to promote the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and
(d) without limiting paragraph (b) or (c): (i) to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused; and (ii) to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin (taking into account, in particular, the impact that the taking of water has on the watercourses, lakes, wetlands, ground water and water-dependent ecosystems that are part of the Basin water resources and on associated biodiversity); and (iii) subject to subparagraphs (i) and (ii)--to maximise the net economic returns to the Australian community from the use and management of the Basin water resources; and
The Water Act: Objects (section 3) cont.
(e) to improve water security for all uses of Basin water resources; and
(f) to ensure that the management of the Basin water resources takes into account the broader management of natural resources in the Murray- Darling Basin; and
(g) to achieve efficient and cost effective water management and administrative practices in relation to Basin water resources; and
(h) ...
The Basin Plan: purpose and objectsThe Basin Plan is to provide for the integrated management of the Basin’s water resources
in a way that promotes the objects of the Act.
Section 20 contemplates that in order to achieve these objects, the Basin Plan is to:
(a) give effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources); and
(b) establish and enforce environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources; and
(c) provide for Basin-wide environmental objectives for water-dependent ecosystems of the Murray Darling Basin and water quality and salinity objectives; and
(d) provide for the use and management of the Basin water resources in a way that optimizes economic, social and environmental outcomes; and
(e) provide for water to reach its most productive use through the development of an efficient water trading regime across the Murray Darling Basin; and
(f) provide for requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2; and
(g) provide for improved water security for all uses of Basin water resources.
The future ?
A Greener Constitution for Australia?
