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152 Acts (States) versus 19 Acts (Commonwealth) since 1986: Australian constitution leaves the States with the major responsibility for environmental law

Posted by gmarkets on 11 October, 2007

In the past 20 years, environmental legislation had become increasingly complex and there was an ever increasing number of environmental laws at all levels of government, according to a NSW Business Chamber study into the effect of environmental law on business.

States govern environment: The State of NSW had been the most prolific in terms of new legislation with 68 Acts relating to the environment being passed since 1986, almost equal to all the other states combined (84 acts) and far surpassing new commonwealth environmental legislation (19 Acts). In general, the Australian constitution left the States with the major responsibility for environmental law. The Commonwealth, which had no express power under the Constitution to make laws to protect the environment, could only make laws about environmental matters that arose under its other spheres of responsibility such as upholding Australia’s obligations under international treaties, protocols or agreements. Local governments were created under state legislation but developed their own subordinate legislation to manage local environmental and planning issues.

Commonwealth charged with national and internatiomnal issues: The Commonwealth had enacted over 40 major pieces of environmental legislation, which covered a wide range of matters including endangered species, heritage and national parks management, as well as giving effect to various international environmental obligations such as trade in wildlife and sea dumping.

Protectionist approach: In the past 20 years, the legislation had adopted a predominantly environmentally protectionist approach, the study said, covering such issues as import and export of hazardous wastes and ozone layer protection. In the early 90s two major pieces of legislation were enacted, the Endangered Species Protection Act 1992 (Cth) and the National Environment Protection Council Act 1994 (Cth). Also at this time the Environment Protection Agency (now Environment Australia) was created to provide a more effective structure for the implementation of federal environment protection legislation.

Recent Commonwealth legislation: Since the mid 90s legislation has been developed to cover ozone license fees, amendments to the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) and the significant Natural Heritage Trust of Australia Act 1997 (Cth). Most recently, the National Environment Protection Measures (Implementation) Act 1998 was passed enabling the implementation of national environment protection measures in respect of certain activities by the Commonwealth.

Reference: NSW Business Chamber; ‘The Challenge of green tape: growth of environmental law and its impact on small and medium enterprises across Australia’ August 2007 Website:

http://www.nswbusinesschamber.com.au

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