Transcript Document

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:
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United Kingdom
Canada
Australia
New Zealand
Jamaica
Barbados
The Bahamas
Grenada
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Papua New Guinea
Solomon Islands
Tuvalu
Saint Lucia
Saint Vincent and the
Grenadines
• 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
Privy Council (http://www.jcpc.uk/index.html)
Independence
The Australia Acts enacted by both the Australian
and in the United Kingdom Parliament in 1986
Queen visits Australia in 1963:
An
Australian
Republic?
•http://www.youtube.com/watch?v=6ibGwqMM6uU
Looking back on the 1999 Republic
Referendum:
•http://youtu.be/rNM3iyCH4do
Queen 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_wetl
ands_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?
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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: Federation
1914: First Interstate Agreement (Cth, SA, NSW, Vic) sharing
water + infrastructure costs
1992: Second Agreement (Cth, SA, NSW, Vic, Qld and ACT
later)
1992: COAG National Strategy for ESD
1994: COAG Water Reform Framework
2004: 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 passed
2008: Water Act commenced
2008: 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
T h e Wa te r A c t , t h e ex te r n a l a f fa i rs p o we r
a n d i nte r n at i o n a l a g re e m e nt s
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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 waterdependent 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.
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 MurrayDarling Basin; and
(g)
to achieve efficient and cost effective water management
and administrative practices in relation to Basin water
resources; and
(h)
...
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e)
The Basin Plan: purpose and objects
The 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?