Environmental law in Australia [9th edition.] 9780409341942, 0409341940

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Environmental Law in Australia 9th edition Gerry Bates LLB (Hons), PhD (Birm) Specialist in Environmental Law and Policy LexisNexis Butterworths Australia 2016

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Bates, G M (Gerard Maxwell). Environmental law in Australia. 9th edition. 9780409341935 (pbk).

Notes: Subjects: Dewey Number:

9780409341942 (ebk). Includes index. Environmental law — Australia. 344.94046

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, 1983; 2nd edition, 1987; 3rd edition, 1992; 4th edition, 1995; 5th edition, 2002 (reprinted 2005); 6th edition, 2006 (reprinted 2009 (twice)); 7th edition, 2010 (reprinted 2012 (twice)); 8th edition, 2013 (reprinted 2014 and 2015). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface Since the eighth edition of this book was published in 2013, legislative reform and government policy initiation in most jurisdictions have continued at an accelerated rate. We have seen the demise of the Clean Energy legislation in favour of the Emissions Reduction package, the roll out of biodiversity offsets across all jurisdictions, new national measures on biosecurity, and a host of new cases and legislative reforms that build on the implementation and interpretation of existing laws. And finally, we also have a new global agreement to limit carbon emissions. Defending the environment through the courts and tribunals has come under scrutiny from some governments, which have tried to wind back the ability of ordinary citizens to question government compliance with environmental laws and test the quality of decision-making. Public interest environmental litigation has been hit by the removal of legal aid and withdrawal of funding from Environmental Defenders Offices. Nevertheless, this will not deter citizens, or the organisations that support them, from questioning the legality or quality of government decision-making. As the cases show, the courts and tribunals will not be distracted by the expressed frustrations of government, or by the loud voices of those that have the ear of government. They will continue, as they always have, to interpret the intent and the substance of environmental laws, and the quality of decision-making under those laws, in an objective and independent manner. Like the stock market, governmental support for environmental regulation waxes and wanes. ‘Green-tape reduction’ is trendy with some governments, but the trend line representing environmental regulation is always clearly upward, as environmental policies and regulation respond to democratic expressions of concern, and the findings and advice of science. Encouragement of voluntary action is always welcome, but it does not necessarily establish a ‘level playing field’. As the consequences of ‘a climate on steroids’ begin to take hold, laws that command and encourage appropriate action to manage development, control pollution, ensure the uptake of renewable sources of energy, and protect biodiversity, will be needed ever more urgently. I fully expect that in the next edition of this book,

I will be able to report on further serious reforms to environmental policies supported by complementary environmental laws. As with previous editions, Environmental Law in Australia will be supported with periodic updates that will try to keep the reader up to date with changes to legislation and significant case law. Thanks to Lachlan, Euan and Annabel for providing the musical background that inspires the continuation of this work.

Gerry Bates Sydney January 2016

Table of Cases References are to paragraph numbers

A Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46 …. 10.36 Abacus Property Group v Ashfield Municipal Council [2009] NSWLEC 1097 …. 10.23 Aberline Associates Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1335 …. 10.23 Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294 …. 16.17 Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1996) 92 LGERA 212 …. 19.30 — v — (1997) 93 LGERA 345 …. 19.30 Acciona Energy Oceania Pty Ltd v Corangamite Shire Council [2008] VCAT 1617 …. 11.58, 17.57 Ackroyd v McKechnie (1986) 66 ALR 287 …. 5.43, 5.45, 14.7 — v Whitehouse [1985] 2 NSWLR 239 …. 22.32 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 …. 21.6 Adams v Advocate General for Scotland [2002] UKHRR 1189 …. 2.46 ADI Ltd v Hawkesbury City Council (2001) 117 LGERA 117 …. 19.55 AGC (Advances) Ltd v Roads and Traffic Authority of New South Wales (1993) 30 NSWLR 391 …. 11.14 AGC Earthmoving Group Pty Ltd and Shire of Mundaring, Re [2008] WASAT 151 …. 11.76 Agonic Holdings Pty Ltd v Lithgow City Council [2008] NSWLEC 1347 …. 8.78

Ajka Pty Ltd and Australian Fisheries Management Authority [2001] AATA 258 …. 18.46 Al Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 …. 14.81 Alanvale Pty Ltd v Southern Rural Water [2010] VCAT 480 …. 8.67, 17.57 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 …. 2.66, 2.67, 7.14, 7.15 Alcock v Commonwealth of Australia [2009] FCA 820 …. 18.48 — v — [2012] FCA 524 …. 18.48 Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 …. 8.32, 8.33, 17.55 Alec Finlayson Pty Ltd v Armidale City Council (1994) 51 FCR 378; 84 LGERA 225; 123 ALR 155 …. 3.29, 16.25 Alexander v District Council of Robe [2009] SAERDC 4 …. 18.57 — v Yass Valley Council [2011] NSWLEC 148 …. 22.66 Ali v Liverpool City Council [2009] NSWLEC 107 …. 19.55 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 …. 2.67 Allders International Pty Ltd v Commissioner for State Revenue (Victoria) (1996) 140 ALR 189 …. 5.46 Allen v Gulf Oil Refining Ltd [1981] AC 1001 …. 3.44, 3.45 — v United Carpet Mills Pty Ltd [1989] VR 323 …. 20.39, 20.40, 20.79 Alliance to Save Hinchinbrook v Chief Executive, Environmental Protection Agency (2006) 145 LGERA 32; [2006] QSC 84 …. 8.23, 12.62, 17.55, 19.34, 19.35, 22.59 — v Cook [2005] QSC 355 …. 21.36 Alphacell Ltd v Woodward [1972] 2 All ER 475 …. 20.32, 20.43, 20.49 Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 …. 19.30 Alpharma Inc v Council T-70/99 …. 8.74 Altamura v Director of Fisheries Policy, South Australia [2003] SASC 277 …. 18.48

Alumino (Aust) Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102 …. 8.63 And Jombi and Minister for the Environment and Heritage [2004] AATA 1380 …. 14.5 Anderson v Ballina Shire Council [2006] NSWLEC 76 …. 22.57 — v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337 …. 7.27, 8.28, 8.39, 8.40, 8.78, 22.57, 22.65 — v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 …. 8.78, 22.34, 22.57 — v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 …. 22.55, 22.57, 22.70, 22.72 Anderson on behalf of Numbahjing Clan within Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 …. 21.25, 21.29 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 …. 3.21 Angel and Department of Arts, Heritage and Environment, Re (1986) 9 ALD 113 …. 22.24 Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17 …. 8.25, 8.53 — v — [2014] ACAT 35 …. 14.80 Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 …. 19.37 Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173 …. 19.35 Annetts v McCann (1990) 170 CLR 596 …. 22.40 Anthony Lagoon Station v Maurice (1987) 74 ALR 77 …. 22.53 Antoniou v Roper (1990) 70 LGRA 351 …. 10.9, 22.40 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398; [2007] FCA 1480 …. 6.9, 6.18, 14.25 — v — [2008] FCAFC 3 …. 6.13, 6.15, 6.18, 22.46 Anzbrook Pty Ltd v Minister for the Environment, Heritage and the Arts [2010] FMCA 34 …. 14.5

APP Corp Pty Ltd v City of Perth [2008] WASAT 291 …. 8.53 — v — [2011] WASAT 132 …. 8.53 Architype Australia Pty Ltd v Yarra City Council [2009] VCAT 662 …. 16.45 Argentum Reductions (UK) Ltd, Re [1975] 1 WLR 186 …. 19.38 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2013] ACTCA 51 …. 19.18, 19.35 — v — [2014] HCA 50 …. 19.28 Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9 …. 3.29, 3.30, 16.25, 16.27 Arnold v Minister Administering Water Management Act 2000 [2008] NSWCA 338 …. 5.22 — v — [2010] HCA 3 …. 2.31, 5.1, 5.22, 5.36 Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 …. 21.24, 21.40, 22.24 Arora Construction Pty Ltd v Gold Coast City Council [2012] QPEC 52 …. 18.19 Asbestos case (Canada v France) ‘European Communities — Measures Affecting Asbestos and Asbestos-containing Products’, Report, 12 March 2001 …. 4.35 Asher v Melbourne Water (General) [2009] VCAT 1079 …. 1.24 Ashfield Municipal Council v Armstrong [2003] NSWCA 353 …. 9.53 Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 …. 8.40, 8.78 — v Hunter Environment Lobby Inc [2015] NSWCA 358 …. 18.62 Ashworth v Victoria [2003] VSC 194 …. 18.20 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 …. 7.18 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 …. 22.71, 22.72, 22.74 Atkinson v Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441 …. 19.8

Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437 …. 3.26, 19.45 — v Brisbane City Council [1988] 1 Qd R 346 …. 3.26 — v Leeds Corp (1870) 5 Ch App 583 …. 3.27 — v PYA Quarries Ltd [1957] 2 QB 169 …. 3.24 — v Sawtell [1978] 2 NSWLR 200 …. 12.3 Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 …. 3.6 Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 45 ALJR 9 …. 5.46 Attorney-General (Tas) v Cameron (2007) 152 LGERA 45; [2007] TASSC 22 …. 18.58, 22.32 Attrill v Richmond River Shire Council (1993) 79 LGERA 178 …. 3.40 Austral Fisheries Pty Ltd, Re v Minister for Primary Industries and Energy [1992] FCA 351 …. 2.58 Austral Tee and Stump Services Pty Ltd v Gould [2008] SASC 230 …. 13.12, 20.77, 20.81 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 …. 22.21, 22.73 Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174 …. 19.57 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 …. 1.19, 2.63, 5.8, 6.2, 19.2, 19.4, 19.6, 19.9, 19.15, 19.18, 19.28, 19.31, 19.36, 19.54 — v Environment Protection Appeal Board [1983] VR 385 …. 19.22 — v Forestry Commission (1988) 79 ALR 685 …. 22.60 — v Latrobe City Council (2004) 140 LGERA 100 …. 22.59 — v Minister for Planning [2004] VCAT 2029 …. 17.55 — v Minister for Resources (1989) 76 LGRA 200 …. 19.10, 19.31 — v South Australia (1990) 53 SASR 349 …. 19.14, 19.17, 19.18, 19.30 Australian Deer Association Inc v Attorney-General for the State of Victoria [2008] VSC 204 …. 14.75

Australian Federation of Consumer Organizations v Tobacco Institute (1991) 98 ALR 670 …. 21.38 Australian Fisheries Management Authority v Gilmore [2009] FCA 1369 …. 9.21, 18.47 — v Graham [2003] FCA 231 …. 3.11, 7.38, 18.45 — v PW Adams Pty Ltd (1995) 61 FCR 314 …. 7.26, 8.25 — v — [1995] FCA 1765 …. 18.46 — v Su (2009) 176 FCR 95 …. 20.76 Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 …. 6.2, 22.61, 22.67 Australian Refined Alloys Pty Ltd and Minister for the Environment and Heritage, Re [2003] AATA 247 …. 16.21 Australian Retirement Homes Ltd v Maroondah City Council [2006] VCAT 476 …. 13.32 Australian Salmon case (Canada v Australia) ‘Australia — Measures Affecting Importation of Salmon’, Appellate Body Report, 20 October 1998 …. 4.38, 4.39 Australian Speleological Federation Inc v Minister for Environment & Natural Resources (1994) 84 LGERA 29 …. 22.18, 22.36, 22.40 Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC 173 …. 16.17 Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 …. 2.41 — v — (No 2) [2005] FCA 1307 …. 2.41 — v — (No 3) [2005] FCA 1308 …. 2.41 Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 …. 8.33, 21.34 — v — (No 2) [2011] NSWLEC 70 …. 21.34 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 …. 20.96, 20.106 — v — (2001) 113 LGERA 357 …. 20.95 Azriel v New South Wales Land and Housing Corporation [2006] NSWCA 372 …. 22.65

Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 …. 19.58

B Baarmutha Residents Association Inc v Indigo Shire Council (2005) 142 LGERA 204 …. 22.36, 22.71 Baiada v Waste Recycling and Processing Service New South Wales (1999) 130 LGERA 52 …. 22.64 Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 …. 7.14, 11.22, 11.23, 11.26, 11.27, 11.30, 11.88, 22.73, 22.75 Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2007] QPEC 117 …. 8.38, 13.32 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 3.6, 3.25 Ballina Shire Council v Freeden (2006) 147 LGERA 297 …. 18.15 Ballymont Pty Ltd v Ipswich City Council (2002) 124 LGERA 373 …. 21.23 Bamford v Turnley (1862) 3 B & S 66 …. 3.20, 3.21 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 142 LGERA 1 …. 3.40, 3.43 — v Hanna [2014] NSWLEC 152 …. 20.92, 20.106, 20.107, 20.113 Bannister v Bowen (1985) 65 ACTR 3 …. 14.36 Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503; 48 ALD 53 …. 7.26, 8.25, 18.45 Baranov v Lane Cove Council [2001] NSWLEC 292 …. 20.53 Barnes v Maroochy Shire Council [2001] QCA 273 …. 15.26 — v Southern Downs Regional Council (No 2) [2011] QPEC 119 …. 10.36 Barrington — Gloucester — Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 …. 8.34, 8.53, 9.10, 17.56, 18.66, 22.56, 22.62 Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 …. 7.18, 9.21, 22.66 Barton Securities Ltd v Warringah Council [2009] NSWLEC 179 …. 22.34 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and

the Arts [2011] FCA 113 …. 8.39, 14.22, 22.54 — v — [2011] FCAFC 59 …. 2.39, 22.61, 22.68 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 …. 19.10 Bates v Southern Rural Water [2004] VCAT 2045 …. 18.28 Bathurst City Council v PWC Properties (1998) 100 LGERA 383 …. 7.36, 15.76 — v Saban (1985) 58 LGRA 165 …. 3.21 — v — (No 2) (1986) 58 LGRA 201 …. 3.24 Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110 …. 3.24, 3.54 — v Hahn (2008) 160 LGERA 157; [2008] NSWLEC 184 …. 21.23 Bayside City Council v Telstra Corp Ltd; Moreland City v Optus Vision Pty Ltd; Warringah Council v Optus Vision Pty Ltd; Hurstville City Council v Telstra Corp Ltd (2004) 133 LGERA 65 …. 5.49 Beaudesert Shire Council Brecevic v Big Boulder Walls Pty Ltd [2003] QPEC 52 …. 20.121 Beaumaris Conservation Society Inc v Bayside City Council [2012] VCAT 1594 …. 13.27 Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41 …. 2.67, 7.10 Beckett v Lyons [1967] Ch 449 …. 3.6 Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 …. 11.88, 11.90 Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 …. 10.16, 22.65, 22.77 Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202 …. 10.9, 22.43 Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449 …. 14.81, 20.62 — v — (2006) 145 LGERA 234 …. 20.105, 20.106, 20.107 — v Gordon [2005] NSWLEC 695 …. 14.81 — v Shire of Talbot [1990] ELR 005 …. 9.33 Bernstein v Skyviews and General Ltd [1977] EWHC QB 1 …. 3.2

Betland v Environment Protection Authority [2010] NSWLEC 183 …. 7.29, 20.23, 20.100 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 …. 10.70 BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 …. 8.25, 8.31, 8.66, 14.93, 14.98, 22.5, 22.59 BHP Coal Pty Ltd v Robertson (2005) 139 LGERA 77 …. 19.17 BHP Ltd v Blacktown City Council (1989) 130 LGERA 1 …. 10.4, 22.60 Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 …. 2.26, 9.16, 22.18, 22.20 — v — (1996) 63 FCR 567; 135 ALR 128 …. 5.36, 22.20 Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale, Re [2006] WASAT 10 …. 13.30 Biotech Dispute, USA v EC ‘European Communities — Measures Affecting the Approval and Marketing of Biotech Products’, Appeal Panel Report, 29 September 2006 …. 4.38 Birri Gubba v Queensland [2003] FCA 276 …. 12.71 Bisogni v Environment Protection Authority [2003] VCAT 362 …. 20.4 Black v Ku-ring-gai Council [2008] NSWLEC 1501 …. 13.45 Blackburn v Attorney-General [1971] 1 WLR 1037 …. 4.10 Blacktown City Council v Pace (2002) 121 LGERA 432 …. 20.49 — v Penatrators Pty Ltd [2013] NSWLEC 169 …. 21.15 Blair v Deakin (1882) 57 LJ 522 …. 3.27 Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150 …. 21.37 — v — (No 2) [2009] NSWLEC 193 …. 21.37 — v — (No 3) [2011] NSWLEC 145 …. 15.36, 21.16, 21.17 — v Director General of National Parks and Wildlife (2) (2004) 133 LGERA 406 …. 2.65, 7.22, 8.25 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 157 LGERA 428; [2008] FCA 399 …. 6.52, 6.60, 6.62, 8.35, 19.44, 22.61, 22.62

— v — [2008] FCA 8 …. 2.39, 6.9, 6.11, 19.44 — v Port of Melbourne Corporation [2005] VSC 305 …. 21.15 Bluhme, Re C-67-97 …. 8.74 BMG Resources Ltd v Beaconsfield Municipal Council [1988] Tas R 142 …. 5.46 Bobolas v Waverley Council [2012] NSWCA 126 …. 20.7 Bodney v Westralia Airports Corporation Pty Ltd (2000) 111 LGERA 268 …. 2.8 Boerkamp v The Honourable Matthew Guy [2014] VSC 167 …. 19.26 Bojanich and Western Australian Planning Commission [2006] WASAT 315 …. 17.57 Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119 …. 11.42, 22.73 Bone v Mothershaw [2003] 2 Qd R 600 …. 2.22, 2.28, 13.3 Bonfoal Pty Ltd v Botany Bay City Council (1999) 105 LGERA 190 …. 11.88 Bonnici v Ku-ring-gai Municipal Council (2001) 121 LGERA 29 …. 3.27 Bonser v La Macchia (1969) 122 CLR 177 …. 5.29, 5.31 Booth v Bosworth [2000] FCA 1878 …. 19.44, 21.11 — v — (2001) 114 FCR 39; [2001] FCA 1453 …. 6.15, 7.11, 12.14, 18.5, 19.44, 21.7 — v Frippery Pty Ltd [2006] QCA 74 …. 20.83 — v — [2007] QPEC 99 …. 14.46, 14.50, 20.84 — v — [2008] QPEC 122 …. 20.121 — v Yardley [2006] QPEC 116 …. 14.50, 21.10, 21.15 — v — [2006] QPEC 119 …. 14.46 — v — (2008) 160 LGERA 352 …. 20.121 Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 …. 11.19 Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 …. 22.4

— v Minister for Planning (2006) 148 LGERA 251 …. 11.90 — v Minister of State for Transport and Regional Development (1996) 90 LGERA 81 …. 21.9 — v Pet Carriers International Pty Ltd [2013] NSWLEC 147 …. 22.39 — v Premier Customs Services Pty Ltd [2009] NSWCA 226 …. 9.1, 22.64 — v Ralansaab Pty Ltd [2010] NSWLEC 225 …. 10.16, 20.59 — v Saab Corp Pty Ltd [2011] NSWCA 308 …. 10.16 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; 79 LGERA 241; 109 ALR 321; 66 ALJR 821 …. 5.46, 5.51, 6.24, 11.22, 11.31 Bow v Blacktown City Council [2008] NSWLEC 21 …. 14.85 Bowden v Break O’Day Council (2008) 162 LGERA 49 …. 10.2, 21.4, 22.55 Boyce v Paddington Borough Council [1903] 1 Ch 109 …. 19.9, 19.10, 19.44 Bradford v Robinson Rentals [1967] 1 All ER 267 …. 3.29 Bradto Pty Ltd v Victoria; Tymbook Pty Ltd v Victoria [2006] VSCA 89 …. 21.9 Brambles Australia Ltd v Environment Protection Authority [1999] VCAT 2176 …. 19.22, 19.27 Brazil — Retreaded Tyres, Brazil — Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, AB-2007-4 …. 4.36 Breen v Williams [1996] HCA 57 …. 2.61 Brennan-Kuss and others v Dietman [2014] SASC 28 …. 14.53 Bridgetown Greenbushes-Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 102; 93 LGERA 436 …. 8.64, 21.9 — v Executive Director of the Department of Conservation & Land Management (1997) 94 LGERA 380 …. 8.56, 8.68, 9.21, 12.67, 21.18, 22.34, 22.61 Brighton Council v Compost Tasmania Pty Ltd (2000) 109 LGERA 190 …. 22.39 Brinkworth v Dendy [2007] SASC 120 …. 13.12 — v Fischer [2008] SAERDC 33 …. 20.106

Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 …. 5.46 Broad Henry v Director-General of the Department of Environment and Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722 …. 7.27, 22.34 Broadwater Action Group Inc v Richmond Valley Council (No 2) (2003) 129 LGERA 401 …. 22.9 Brodie v Singleton [2001] HCA 29 …. 3.40 Bromley London Borough Council v Greater London Council [1983] AC 768 …. 22.71 Bropho v Western Australia [1990] HCA 24 …. 2.7 Brown v Environment Protection Authority & North Broken Hill Ltd (No 2) (1992) 78 LGERA 119 …. 11.23, 15.33, 15.56, 15.71, 21.2, 21.4, 21.40 — v Forestry Tasmania (No 4) (2006) 152 LGERA 146; [2006] FCA 1729 …. 6.7, 6.17, 6.38, 9.10, 18.74 — v Gosford City Council [2006] NSWLEC 56 …. 19.54 — v Mornington Peninsula Shire Council (2004) 140 LGERA 11 …. 21.23 — v Randwick City Council [2011] NSWLEC 172 …. 22.27 Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168 …. 8.67 Brunswick Valley Sports Association Inc v Byron Shire Council [2006] NSWLEC 71 …. 21.13 BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 …. 7.11, 8.66, 11.25, 11.35 — v — [2007] NSWLEC 229 …. 13.46 BTG Planning v Blacktown City Council [2008] NSWLEC 1500 …. 13.46 Budd v Northern Midlands Council [2008] TASSC 62 …. 15.28 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 …. 21.25 Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 …. 11.19 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd [2013] NSWLEC 48 …. 2.34, 8.29, 8.82, 11.101, 11.105, 13.36, 13.61, 17.56, 18.59

Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 …. 22.47 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 3.29, 20.52 Burns v Queensland and Croton [2006] QCA 235 …. 13.3 Burtenshaw v Dunn [2010] QLC 70 …. 8.67 Burwood Council v Doueihi [2013] NSWLEC 196 …. 20.107 Butler Excavations Pty Ltd v Ballarat City Council [2010] VCAT 57 …. 12.72 Buttsworth v Director-General of the Department of Land and Water Conservation (2003) 127 LGERA 170 …. 20.5 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 …. 6.69, 6.70, 8.66, 13.35, 13.46, 22.56, 22.79 — v — (No 2) [2012] FCA 403 …. 6.16, 6.46, 6.67, 6.69, 9.10, 15.131 Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; 96 LGERA 1 …. 19.30, 19.36 Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 83 LGERA 59 …. 21.41 — v — (1994) 84 LGERA 434; [1994] NSWLEC 159 …. 11.14, 11.30, 14.95, 22.75 Byron Shire Council v Fletcher (2005) 143 LGERA 155 …. 20.103 — v — [2008] NSWLEC 296 …. 13.32 — v Vaughan [2009] NSWLEC 88 …. 3.45, 17.49, 17.51 Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215 …. 2.57, 8.49

C Cabbabe v Baw Baw Shire Council [2001] VCAT 747 …. 8.67 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 …. 22.46 Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 …. 13.24 Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271 …. 16.25, 16.26

Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 …. 20.66, 20.67, 20.69 Cambridge Water Co v Eastern Counties Leather Co [1994] 1 All ER 53 …. 3.5 Camden Council v Runko (2006) 147 LGERA 214 …. 20.112 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 …. 20.23, 20.107 — v Lake Macquarie City Council (2000) 107 LGERA 308 …. 13.34 — v Nambucca Shire Council (1997) 95 LGERA 268 …. 10.24 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; 82 LGERA 21 …. 6.73, 20.107, 20.113, 20.114 Canada Bay City Council v Bird (2003) 124 LGERA 303 …. 13.34 Canal Rocks Pty Ltd and Shire of Busselton, Re [2006] WASAT 211 …. 12.72 Candy v Christensen [2007] QCA 114 …. 14.46 — v Thompson [2005] QCA 382 …. 14.46 Cantarella Bros Pty Ltd v City of Ryde Council (2003) 131 LGERA 190 …. 15.91, 20.7 Canterbury City Council v Saad (2000) 112 LGERA 107 …. 20.39 — v — (2001) 112 LGERA 429 …. 13.33 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 …. 22.44 Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 …. 10.16, 19.39, 22.36 Cape York Land Council Aboriginal Corporation v Boyland [2000] QCA 202 …. 7.21 Capital Airports Group Pty Ltd v Director General, New South Wales Department of Planning (No 2) [2011] NSWLEC 83 …. 11.90, 22.66 Carbon v Palos Verdes Estates Pty Ltd [1990] ELR 179 …. 15.21 Cardoso v Greater Bendigo City Council (Red Dot) [2006] VCAT 2043 …. 19.23, 19.27 Carmody v Brancourts Nominees Pty Ltd (2002) 124 LGERA 136 …. 20.65

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165 …. 21.37 — v — [2010] NSWCA 353 …. 21.30 — v — (No 2) [2010] NSWLEC 1 …. 22.49 — v — (No 3) [2010] NSWLEC 59 …. 21.30, 21.31, 21.33 — v — (No 4) [2010] NSWLEC 91 …. 22.24 Carriage v Stockland (Constructors) Pty Ltd [2002] NSWLEC 117 …. 21.9 — v — [2002] NSWLEC 216 …. 21.9 — v Stockland Development Pty Ltd (No 4) (2004) 135 LGERA 68 …. 10.9, 22.34 Carrington v Minister for Planning (1986) 26 APA 372 …. 11.58 Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 …. 7.28, 8.31, 11.24, 11.25, 14.84, 14.94, 22.59 Carter v Wall [2002] NSWLEC 124 …. 12.76 Caruso v Sydney Water Corporation [2008] NSWLEC 320 …. 13.46 Casa v City of Ryde Council [2009] NSWLEC 212 …. 22.75 Castle v Southern Rural Water [2008] VCAT 2440 …. 8.67 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 …. 22.40 Castlemaine Tooheys Ltd v South Australia (1986) 67 ALR 553 …. 21.7, 21.10 — Ltd v — (1990) 169 CLR 436 …. 5.44, 5.45 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 …. 10.27, 22.39 Caversham Property Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 173 …. 13.39 Celledoni v Johnstone Shire Council [2008] QPEC 104 …. 11.42 Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512 …. 14.47, 19.14, 19.30, 21.40 Central West Environment Council Inc v Orange City Council (2003) 128 LGERA 169 …. 11.26, 14.94, 22.61, 22.64 Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 ….

22.65 Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3 …. 20.96, 20.113 Challen v McLeod Country Golf Club [2004] QCA 358 …. 3.19 Challenger Listed Investments Ltd v Valuer General (No 2) [2015] NSWLEC 60 …. 16.26 Chambers v Maclean Shire Council (2003) 126 LGERA 7 …. 22.48 Chapman v Hearse (1961) 106 CLR 112 …. 3.29 Chappel v Hart (1998) 195 CLR 232 …. 3.36 Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 …. 10.9, 10.25, 22.45 Charles and Howard Pty Ltd v Redland Shire Council (2007) 159 LGERA 349 …. 17.57 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 …. 22.46 Cheltenham Park Residents Association Inc v City of Charles Sturt [2011] SAERDC 33 …. 13.33 — v Minister for Urban Development and Planning [2009] SASC 303 …. 22.77 — v — [2010] SASC 93 …. 9.58, 19.33, 22.27 Cherry Tree Wind Farm Pty Ltd v Mitchell Shire Council (Red Dot) [2013] VCAT 1939 …. 17.57 Chesol Pty Ltd v Logan City Council [2007] QPEC 1 …. 8.37 Chief Executive of the Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 …. 11.90, 20.39, 20.43, 20.56, 20.92, 20.104 — v Bombala Investments Pty Ltd [2013] NSWLEC 185 …. 13.21, 20.93, 20.94, 20.104, 20.105, 20.106, 20.110 — v Fish (No 2) [2014] NSWLEC 67 …. 20.123 — v Humphries [2013] NSWLEC 213 …. 17.58 — v Kyluk Pty Ltd (No 3) [2012] NSWLEC 56 …. 8.29, 14.81 — v Lani [2012] NSWLEC 115 …. 20.113

Chief Executive of the Office of Environment and Heritage Department of Premier and Cabinet v Powell [2012] NSWLEC 129 …. 13.17 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 …. 18.62 Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 …. 21.22 — v — (No 2) [2011] WASC 315 …. 13.30, 20.122 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 …. 20.16 Christian Outreach Centre v Toowoomba Regional Council and HSBG Pty Ltd [2012] QPEC 29 …. 22.75 Ciccarello v City of Charles Sturt [2010] SAERDC 49 …. 10.70, 22.7 Circelli v Agnidla Pty Ltd [2008] SAERDC 34 …. 20.107, 20.112 — v Mulhern’s Waste Oil Removal [2009] SAERDC 17 …. 20.113 — v Southcorp Wines Pty Ltd [2000] SAERDC 80 …. 20.24 Citizens Airport Environment Association Inc v Maritime Services Board (1993) 114 ALR 473; 79 LGERA 254 …. 2.39, 6.24, 11.31, 21.16, 21.26, 21.34, 21.35, 21.41 City of Adelaide v Environment Protection Authority [2005] SASC 221 …. 16.1 City of Altona v Environment Protection Authority (1985) 16 APA 470 …. 19.22 City of Armadale v Merrick [2014] WASCA 125 …. 7.9, 16.18 City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160 …. 11.22, 11.87 City of Botany Bay Council v Minister for Transport and Regional Development (1999) 106 LGERA 287 …. 22.73 City of Burnside v Prestige Wholesale Pty Ltd [2005] SASC 195 …. 13.33 City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 …. 3.27 City of Joondalup, Re; Ex parte Mullaloo Progress Association Inc (2003) 132 LGERA 243 …. 22.64

City of Marion v Paior [2013] SASCFC 77 …. 2.65 City of Mitcham v Ansaar [2006] SASC 78 …. 13.32 — v MOL Pty Ltd (2003) 127 LGERA 145 …. 22.67 City of Norwood, Payneham and St Peters v ETSA Utilities [2008] SASC 114 …. 13.10 City of West Torrens v Maria Kyros [2009] SAERDC 13 …. 20.112 Clarence City Council v South Hobart Investment Pty Ltd (2007) 152 LGERA 24 …. 22.40 Clark v Cook Shire Council [2007] QCA 139 …. 22.73 — v Ryan (1960) 103 CLR 486 …. 8.58 Clark and Australian Fisheries Management Authority, Re [2006] AATA 597 …. 18.45 Cleveland Power Pty Ltd v Redlands City Council [2013] QPEC 17 …. 21.23, 21.33 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 …. 22.57 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 114 …. 22.77 — v — (1999) 106 LGERA 243 …. 10.27 Coast Protection Board v Carramatta Holdings Pty Ltd [2015] SASCFC 64 …. 20.13 Coastal Estates Pty Ltd v Bass Coast Shire Council [2010] VCAT 1807 …. 22.42 Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 …. 7.14, 7.33, 8.37, 11.29, 11.68, 11.70, 15.70, 21.20 Coco v R (1994) 179 CLR 427 …. 2.28 Coe v Gordon [1983] 1 NSWLR 419 …. 19.8 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 …. 11.35, 22.57 — v Minister for Planning and Infrastructure [2012] NSWLEC 4 …. 22.56 Cohen v City of Perth (2000) 112 LGERA 234; [2000] WASC 306 …. 3.37,

21.6 Cole v Whitfield (1988) 78 ALR 42 …. 5.42, 5.45 Coleman v Gray (1994) 133 ALR 328 …. 9.16 Comer v Murphy Oil No 1: 05-CV-436 (SD Miss 18 April 2006) …. 17.52 Commercial Radio Coffs Harbour v Fuller (1986) 60 LGRA 68 …. 5.50 Commission v Greece C-342/07 …. 4.46 — v Italian Republic C-173/05 …. 8.74 Commissioners of Soil and Land Conservation v Nabarlek Nominees Pty Ltd (2002) 120 LGERA 43 …. 20.6 Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 …. 2.11 — v Bogle (1953) 89 CLR 229 …. 5.53 — v Cigamatic Pty Ltd (1962) 108 CLR 372 …. 5.53 — v Randwick City Council [2001] NSWLEC 79 …. 14.84 — v Western Australia (1999) 196 CLR 392 …. 5.46 — v Yarmirr [2001] HCA 56; 184 AJR 113 …. 2.11, 2.12 Commonwealth of Australia v Tasmania (1983) 158 CLR 1; 46 ALR 625; [1983] HCA 21 …. 1.19, 2.38, 4.44, 5.4, 5.11, 5.12, 5.13, 5.15, 5.16, 5.17, 5.28, 5.34, 5.36, 5.49, 6.2, 9.10, 22.53 — v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 …. 2.19, 2.30, 3.3, 4.25, 5.32, 5.33, 5.34 Community Association DP 270253 v Woollahra Municipal Council [2015] NSWCA 80 …. 22.10 — v — (No 2) [2014] NSWLEC 8 …. 22.10 Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165 …. 19.20 Concord, North Sydney, Woollahra & Manly Councils v Optus Networks Pty Ltd (1996) 90 LGERA 232 …. 22.60 Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005 …. 3.24, 17.52 Connell v Santos NSW Pty Ltd [2014] NSWLEC 1 …. 18.65, 20.104, 20.107,

20.113 Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86 …. 8.65, 8.70 — v — (No 3) [2000] SAERDC 67 …. 4.39, 8.65 Cook v Pasminco Ltd (2000) 111 LGERA 406 …. 19.51 Cooney v Ku-ring-gai Municipal Council (1963) 114 CLR 582 …. 19.45 Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 …. 13.32 — v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58 …. 20.40, 20.43, 20.78 Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4 …. 4.15 Corkill v Forestry Commission of New South Wales (Unreported, LEC (NSW), No 40208, 29 October 1990) …. 21.13 — v — (1990) 71 LGRA 116 …. 21.9 — v — (No 2) (1991) 73 LGRA 126 …. 14.38 Cornell v Town of East Fremantle (2003) 131 LGERA 20 …. 2.24 Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117; [2007] NSWLEC 121 …. 10.20, 11.25, 11.26, 11.35, 14.94, 14.98, 22.27, 22.28, 22.47, 22.78 — v Queensland (2006) 149 LGERA 1 …. 5.48, 5.51 Corporate Affairs Commission v ASC Timber Pty Ltd [1989] 18 NSWLR 577 …. 3.9 Corporation of the City of Adelaide v BFR Pty Ltd [2014] SAERDC 37 …. 10.37 — v City of Salisbury (1998) 100 LGERA 160 …. 22.32 Corporation of the City of Enfield v Development Assessment Commission (2000) 106 LGERA 419 …. 7.36, 10.9, 15.76, 22.46, 22.48 Council of Camden v Runko [2006] NSWLEC 486 …. 20.116 — v Tax (2004) 137 LGERA 368 …. 13.33, 20.107 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 …. 22.71

Council of the City of Greater Taree v Wells [2010] NSWCA 147 …. 3.37 Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93 …. 13.34 Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 …. 22.10 Country Energy v Williams (2005) 141 LGERA 426; [2005] NSWCA 318 …. 8.28, 22.34, 22.79 CPC (UK) Ltd v National Rivers Authority [1995] Env LR 131 …. 20.32 CPT Manager Ltd v Central Highlands Regional Council [2010] QCA 183 …. 22.47 Craig v South Australia (1995) 184 CLR 163 …. 22.78 Cranbrook School v Woollahra Council (2006) 146 LGERA 313; [2006] NSWCA 155 …. 7.14, 7.15 Cranky Rock Road Action Group Inc v Cowra Shire Council (2005) 143 LGERA 356 …. 10.14 — v — (2006) 150 LGERA 81; [2006] NSWCA 339 …. 10.14, 10.20, 11.38, 14.94, 22.47, 22.78 Crowther v Brisbane City Council [2010] QCA 348 …. 19.41 — v — [2002] QPEC 79 …. 15.29 — v — [2008] QPEC 79 …. 15.29 — v — [2009] QPEC 31 …. 15.29, 20.121 — v Queensland (2006) 148 LGERA 220; [2006] QCA 308 …. 20.121, 21.6, 21.16 CSA Architects Pty Limited v Woollahra Council [2009] NSWLEC 1054 …. 8.52 CSR Ltd v Caboolture Shire Council [2001] QPELR 398 …. 8.71, 8.74 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214 …. 7.51 — v — [2011] HCA 27 …. 3.9, 3.13 Currareva Partnership v Welford [2000] QSC 098 …. 2.58 Currey v Hargraves [2007] NSWLEC 471 …. 22.71 — v Sutherland Shire Council (1998) 100 LGERA 365 …. 22.48, 22.64

D Dal Piva v Jakobovic [2002] SASC 209 …. 13.12, 20.96 — v Maynard (2000) 112 LGERA 165 …. 13.12, 20.96 Daletta Pty Ltd v District Council of the Copper Coast [2007] SAERDC 2 …. 18.57 Dalimen Pty Ltd v Director-General, Department of Infrastructure, Planning and Natural Resources [2005] NSWLEC 204 …. 13.21 D’Anastasi v Environment Protection Authority [2011] NSWCA 1 …. 20.29 Danube Dam case (1997) ICJ Reports 7 …. 4.16, 4.19, 4.21 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 …. 11.19 Darlinghurst Residents’ Association v Elarosa Investments Pty Ltd (1992) 75 LGRA 214 …. 21.26, 21.33, 21.41 Dates v Minister for Environment, Heritage and the Arts (No 2) [2010] FCA 256 …. 22.72 David Kettle Consulting Pty Ltd v Gosford City Council [2008] NSWLEC 1385 …. 8.53 Davis v Commonwealth (1988) 63 ALJR 35 …. 5.27 — v Gosford City Council [2014] NSWCA 343 …. 10.15, 10.19 Davis and Bird v City of Mitcham [2010] SAERDC 48 …. 13.8 Day v Pinglen (1981) 148 CLR 289; 34 ALR 545 …. 3.21, 19.10, 19.11 DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634 …. 13.27 De Brett Investments Pty Ltd and Australian Fisheries Management Authority [2004] AATA 704 …. 8.57, 18.46 De Lacey v Kagara Pty Ltd (2009) 30 QLCR 57; [2009] QLC 77 …. 8.21, 8.65, 8.74 De Tournouer v Department of Natural Resources and Water [2009] QLAC 0006 …. 22.7 DeAngelis v Pepping [2014] NSWLEC 108 …. 2.57, 22.40, 22.78 Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342 ….

3.25 DeLa Harpe v East Gippsland Shire Council (2005) 144 LGERA 132 …. 13.27 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 …. 21.35 — v — [2010] NSWCA 264 …. 21.37 Denison v Townsville City Council [2006] QPEC 118 …. 8.68 Dennis v Ministry of Defence [2003] Env LR 34 …. 2.46 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15 …. 13.16, 13.19 — v Sommerville; Department of Environment and Climate Change v Ianna [2009] NSWLEC 194 …. 14.81 Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188 …. 2.39 Development Assessment Commission v 3GIS Pty Ltd [2007] 154 LGERA 72 …. 5.50 — v A & V Contractors Pty Ltd [2011] SASCFC 21 …. 8.38 DG Robertson Holdings Pty Ltd v Douglas Shire Council [2000] QPELR 428 …. 10.36 Dietman v Feast [2015] SASC 148 …. 14.53 — v Karpany [2012] SASCFC 53 …. 2.11, 2.13 Dighton v South Australia [2000] SASC 194 …. 18.49 Dilatte v MacTiernan [2002] WASCA 100 …. 22.32 Director of Public Prosecutions v SA Water Corporation [2004] SAERDC 36 …. 15.29 — v Transadelaide [2004] SAERDC 92 …. 15.27, 20.24, 20.96 Director-General, Dept of Environment and Climate Change v Calman Australia Pty Ltd [2009] NSWLEC 182 …. 13.17 — v Hudson [2009] NSWLEC 4 …. 13.17, 20.29, 20.114 — v — (No 2) [2015] NSWLEC 110 …. 13.17, 20.92 — v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232 …. 13.19, 20.55, 20.56, 20.57

— v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 …. 8.29, 13.17, 20.110 — v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 …. 13.16, 13.17 — v — (No 3) [2010] NSWLEC 135 …. 20.31 — v — (No 4) [2011] NSWLEC 119 …. 13.17, 20.106 — v Wilton [2008] NSWLEC 297 …. 18.76, 20.114 Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102 …. 7.29, 20.108 — v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102 …. 13.17 — v Linklater [2011] NSWLEC 30 …. 13.17 — v Venn [2011] NSWLEC 118 …. 7.27, 8.29, 14.81, 14.83, 21.16, 21.17 — v Vin Heffernan Pty Ltd [2010] NSWLEC 200 …. 13.17 — v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 …. 13.16, 13.19 Director-General, Department of Industry and Investment NSW v Mato Investments Pty Ltd [2014] NSWCCA 132 …. 7.36, 22.43, 22.44 Director-General, Department of Land and Water Conservation v Bailey (2003) 128 LGERA 1 …. 11.18, 13.20 — v — (2003) 136 LGERA 242 …. 7.14, 13.19, 20.31 — v Jackson (2003) 125 LGERA 304 …. 13.20 — v Nunkeri Pastoral Pty Ltd (1998) 98 LGERA 139 …. 13.16 — v Orlando Farms Pty Ltd (1998) 99 LGERA 101 …. 13.16, 20.107 — v Pye [1998] NSWLEC 292; LEC 50128-9 of 1997 …. 13.16, 20.31 — v Rial (1998) 99 LGERA 130 …. 13.16, 20.96, 20.107 Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372; [2006] NSWLEC 306 …. 1.24, 20.28, 22.11 Director-General, New South Wales Department of Industry and Investment v Mato Investments Pty Ltd (No 4) [2011] NSWLEC 227 …. 14.81 Director-General of National Parks and Wildlife Service v Barry John Mobbs [1996] NSWLEC 225 …. 14.38 Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 …. 14.81, 20.114

Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 …. 20.114 Director-General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 …. 20.64 — v Greentree (2003) 131 LGERA 234 …. 20.39, 20.51, 20.62 — v Prime Grain Pty Ltd (2002) 124 LGERA 233 …. 20.5 District Council of Kingscote v Kangaroo Island Eco Action Incorporated (1996) 67 SASR 410 …. 7.17 Dixon and Australian Fisheries Management Authority and Executive Director of Fisheries Western Australia and Northern Territory of Australia [2000] AATA 442 …. 8.74, 18.46 DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 …. 5.36 Dodd & Dodd Group Pty Ltd v Minister for Sustainability Environment, Water, Population and Communities [2010] AATA 957 …. 16.21 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 …. 22.75 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 …. 3.20, 3.21 Donnelly v Capricornia Prospecting Pty Ltd (1999) 102 LGERA 310 …. 21.41 — v Solomon Islands Mining NL (2002) 121 LGERA 264 …. 14.81, 21.5 Donohue v Australian Fisheries Management Authority [2000] FCA 901 …. 2.58 Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295; 59 ALJR 105 …. 9.53, 13.9 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 …. 19.55 Drake-Brockman v Minister for Planning (2007) 158 LGERA 349; [2007] NSWLEC 490 …. 8.35, 8.52, 10.61, 11.87, 17.55, 22.1, 22.47, 22.62 — v — (No 2) [2007] NSWLEC 718 …. 21.29 Draycott Pty Ltd v Minister for Environment and Conservation [2007] SASC 463 …. 18.28 Drewitt v Resource Management and Planning Appeal Tribunal (No 2) (2008) 161 LGERA 321 …. 19.20 Dridan v Kent [2004] SASC 100 …. 12.76, 13.12

Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 …. 11.30, 14.95 — v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155 …. 11.22, 11.25, 11.29 Dual Gas Pty Ltd v Environment Protection Authority [2012] VCAT 308 …. 8.68, 17.55, 19.10, 19.22, 19.24, 19.33 Dubler Group Pty Ltd v Ku-ring-gai Municipal Council (2004) 133 LGERA 438 …. 2.70, 22.74 Dubois v Rockhampton Regional Council [2014] QCA 215 …. 20.123 Dunstan v R [1948] VLR 269 …. 3.21 Durable Building Products Pty Ltd v Sutherland Shire Council (2000) 111 LGERA 106 …. 5.46, 5.51 Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 …. 2.28

E East Melbourne Group Inc v Minister for Planning [2005] VSC 242 …. 22.17, 22.73 — v — [2008] VSCA 217 …. 8.38, 22.22, 22.58, 22.74 Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 …. 15.76 Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343 …. 11.28 Ebner v Official Trustee (2000) 176 ALR 644 …. 22.40 Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 …. 15.76 Eco-action Kangaroo Island Inc v Kangaroo Island Council [2012] SAERDC 14 …. 10.38 Edwards, Re; Ex parte Pearls Pty Ltd [2003] WASCA 148 …. 21.20, 22.74 Edwards v Sutherland Shire Council [2006] NSWLEC 128 …. 16.36 Egan v Glenelg Shire Council (Red Dot) [2005] VCAT 2700 …. 21.16 Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494 …. 7.9, 15.20, 15.21, 15.25, 20.81 Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45 …. 3.37,

3.43 Elliott v Brisbane City Council (2002) QPELR 425 …. 8.56 Ellison v Warringah Shire Council (1985) 55 LGRA 1 …. 21.12 Ellul v Shire of Melton (1989) 41 APA 193 …. 19.23 Embrey v Owen (1851) 6 Exch 353 …. 3.6 Enfield City Corporation v Development Assessment Commission (1997) 69 SASR 99 …. 10.38 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 …. 21.23, 21.26, 21.33, 21.34 Entrad v Maroochy Shire Council (1979) 39 LGRA 200 …. 7.19 Environment Agency (Formerly National Rivers Authority) v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22 …. 20.34 Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management [2015] NTSC 30 …. 22.3 Environment East Gippsland Inc v VicForests [2009] VSC 386 …. 8.45, 8.49 — v — [2010] VSC 335 …. 2.56, 8.45, 8.49, 8.66, 8.67, 8.71, 9.21, 9.26, 14.76, 18.69, 19.22, 19.33 Environment Protection Authority v Aaron Plant Hire and Earthmoving Pty Ltd (2000) 108 LGERA 300 …. 20.93 — v Aircare Narrabri Pty Ltd (1997) 99 LGERA 1 …. 20.30, 20.45 — v Alcobell Pty Ltd, Environment Protection Authority [2015] NSWLEC 123 …. 20.96 — v Ampol Ltd (1993) 81 LGERA 433 …. 20.47, 20.48 — v — (1994) 82 LGERA 247 …. 15.36, 20.48 — v — (1995) 85 LGERA 443 …. 20.93 — v — [1995] NSWLEC 16 …. 20.72 — v Anning (1998) 100 LGERA 354 …. 20.45, 20.47 — v — [1998] NSWLEC 135 …. 16.16 — v Arenco Pty Ltd [2006] NSWLEC 244 …. 20.116 — v Ashmore [2014] NSWLEC 136 …. 16.18, 20.112

— v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 …. 20.81 — v — (1992) 76 LGRA 67 …. 20.93 — v — (No 2) (1993) 78 LGERA 373 …. 20.33, 20.39, 20.40, 20.43, 20.71 — v Australian Pacific Oil Company Pty Ltd [2003] NSWLEC 279 …. 20.62 — v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 …. 16.18 — v Ballina Shire Council (2006) 148 LGERA 278 …. 2.52, 7.30, 7.37, 20.101, 20.102, 20.105, 20.106 — v Barlow (unreported, LEC (NSW), 23 April 1993) …. 20.30 — v Barnes [2006] NSWCCA 246 …. 20.107 — v BHP Steel (AIS) Pty Ltd (1996) 89 LGERA 358 …. 20.95 — v — (2004) 132 LGERA 213; [2004] NSWLEC 37 …. 15.45, 20.109 — v Big Island Mining Pty Ltd [2014] NSWLEC 131 …. 15.102 — v BlueScope Steel (AIS) Pty Ltd [2004] NSWLEC 400 …. 20.102 — v BMG Environmental Group Pty Ltd [2012] NSWLEC 69 …. 20.107 — v Boral Resources (NSW) Pty Ltd (2002) 123 LGERA 279 …. 20.93 — v Brazel [2002] NSWLEC 7 …. 20.77 — v — (No 2) [2002] NSWLEC 26 …. 15.25 — v Brir Pty Ltd (1995) 85 LGERA 450 …. 20.93 — v Broken Hill Pty Ltd (unreported, LEC (NSW), 15 April 1994) …. 20.75 — v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383 …. 20.30, 20.81 — v Bulga Coal Management Pty Ltd [2014] NSWLEC 5 …. 15.37 — v — (No 2) [2014] NSWLEC 70 …. 20.124 — v Byron Shire Council [2002] NSWLEC 128 …. 20.116 — v — [2003] NSWLEC 207 …. 20.116 — v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 82 LGERA 51 …. 15.84, 20.66 — v Capdate Pty Ltd (1993) 78 LGERA 349 …. 20.93 — v Centennial Newstan Pty Ltd [2010] NSWLEC 211 …. 20.116 — v Chillana Pty Ltd [2010] NSWLEC 255 …. 20.116

— v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101 …. 15.76 — v Coggins (2003) 126 LGERA 219 …. 20.116 — v Collex Pty Ltd (2001) 115 LGERA 337 …. 2.52, 20.39, 20.102 — v Condon [2013] NSWSC 777 …. 22.51 — v Dubbo City Council (1994) 82 LGERA 361 …. 20.34 — v Ecolab (2002) 122 LGERA 269 …. 20.107 — v Fernando (2003) 129 LGERA 416 …. 20.61 — v Fletcher (2001) 114 LGERA 187 …. 20.80 — v Forestry Commission of New South Wales [2013] NSWLEC 101 …. 8.52, 8.53 — v Foxman Environmental Development Services [2015] NSWLEC 105 …. 16.17, 16.18, 20.49, 20.56 — v Fulton Hogan Pty Ltd (2008) 163 LGERA 345 …. 20.110 — v Gardner (unreported, LEC (NSW), Lloyd J, 14 August and 7 November 1997) …. 20.98 — v — [1997] NSWLEC 212 …. 20.107 — v Genkem Pty Ltd (1993) 79 LGERA 47 …. 20.33, 20.75 — v Gosford City Council (1997) 95 LGERA 338 …. 20.93 — v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 …. 20.77, 20.80, 20.81 — v — [2005] NSWLEC 206 …. 20.116 — v Graham [2003] NSWLEC 408 …. 20.6 — v Great Southern Energy (1999) 110 LGERA 254 …. 20.93, 20.107 — v Hanna [2010] NSWLEC 98 …. 20.107 — v — [2013] NSWLEC 41 …. 20.123 — v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 …. 16.17, 20.39, 20.77, 20.80 — v Hargraves [2002] NSWLEC 113 …. 20.29 — v Hochtief AG [2006] NSWLEC 200 …. 2.52, 20.102, 20.107 — v — [2007] NSWLEC 177 …. 20.109

— v Hopley (2003) 129 LGERA 329 …. 20.51 — v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332 …. 15.76, 20.22 — v Hunter (2003) 124 LGERA 73 …. 20.107, 20.116 — v Integral Energy Australia Pty Ltd (2006) 146 LGERA 140 …. 20.101, 20.105 — v Johnson and Johnson Pacific Pty Ltd (2001) 114 LGERA 169 …. 20.107 — v Laison [2015] NSWLEC 89 …. 20.112 — v Land and Environment Court of New South Wales [2004] NSWCA 50 …. 21.20 — v Le Dome Pty Ltd (2002) 125 LGERA 121 …. 20.107 — v Leaway Pty Ltd [2006] NSWLEC 44 …. 16.6 — v Lithgow City Council [2007] NSWLEC 695 …. 15.48, 20.110 — v Mark Peters [2006] NSWLEC 465 …. 20.29 — v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 …. 20.52, 20.53 — v McMurty (unreported, Court of Petty Sessions, WA, Michelides M, 9 March 1995) …. 20.60 — v Mid Coast County Council (2003) 136 LGERA 233 …. 20.101 — v Middle Harbour Constructions Pty Ltd [2002] NSWCCA 123 …. 20.95 — v Milpharma Pty Ltd [1994] NSWLEC 189 …. 20.79 — v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 …. 20.106, 20.116 — v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 …. 20.49, 20.51, 20.52, 20.53, 2.71 — v Munters Pty Ltd (1998) 98 LGERA 279 …. 15.21, 20.53 — v N (1992) 26 NSWLR 352 …. 20.36, 20.39, 20.45, 20.47, 20.71 — v Norco Co-operative Ltd (2000) 108 LGERA 137 …. 2.52, 20.102, 20.113 — v Obaid [2005] NWLEC 171 …. 20.116 — v Orica Australia Pty Ltd [2014] NSWLEC 103 …. 7.21, 15.102, 20.92, 20.102, 20.104, 20.105, 20.106, 20.107, 20.109, 20.113, 20.116

— v Pal [2009] NSWLEC 35 …. 16.17, 20.116 — v — (No 2) [2009] NSWLEC 60 …. 20.116 — v Pannowitz [2005] NSWLEC 175 …. 16.18, 20.116 — v — [2006] NSWLEC 219 …. 20.64 — v — (No 2) (2006) 153 LGERA 126 …. 20.121 — v Perry (2004) 135 LGERA 431; [2004] NSWLEC 715 …. 16.17, 20.60 — v Peters (2006) 153 LGERA 238 …. 15.76 — v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52 …. 20.107 — v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391 …. 2.52, 20.102 — v Port Stephens Council [2011] NSWLEC 209 …. 20.101 — v Queanbeyan City Council [2010] NSWLEC 237 …. 15.63 — v Ramsey Food Processing Pty Ltd (2003) 125 LGERA 369 …. 20.107 — v — (No 2) [2010] NSWLEC 175 …. 20.116 — v — (No 4) [2011] NSWLEC 246 …. 20.123 — v Rashleigh [2005] ACTCA 42 …. 2.30, 18.20 — v Reederei Suderelbe GmbH & Co Schiffarhts Kg (RSS) (unreported, Melbourne Magistrates’ Court, 20 December 2005) …. 15.126 — v Rethmann Australia Environmental Services Pty Ltd (2003) 131 LGERA 422 …. 20.51, 20.107 — v Richardson; Environment Protection Authority v Behnfeld [2002] NSWLEC 205 …. 16.18 — v Ross [2009] NSWLEC 36 …. 20.92 — v Shannongrove Pty Ltd [2010] NSWLEC 162 …. 2.57, 16.18 — v — (No 2) [2012] NSWLEC 202 …. 20.92 — v Shell Refining (Aust) Pty Ltd (1994) 82 LGERA 298 …. 20.75 — v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685 …. 20.116 — v Simsmetal Ltd (1990) 70 LGRA 312 …. 20.6 — v Snowy Hydro Ltd (2008) 162 LGERA 273 …. 20.105, 20.106, 20.107, 20.110 — v Snowy Mountains Engineering Corp Ltd (1994) 83 LGERA 51 …. 20.30,

20.53 — v Softwood Holdings Ltd (2000) 110 LGERA 87 …. 2.52, 20.102 — v State of New South Wales (Dept of Environment, Climate Change and Water) [2010] NSWLEC 67 …. 20.72, 20.101, 20.106 — v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114 …. 20.106, 20.109 — v Sydney Water Corporation Ltd (1999) 102 LGERA 232 …. 20.93, 20.101 — v Taylor (1995) 130 LGERA 144 …. 20.22, 20.77 — v Taylor Woodrow (Aust) Pty Ltd (1997) 101 LGERA 226 …. 20.34, 20.52, 20.71 — v — (No 2) (1997) 97 LGERA 368 …. 20.93 — v Tenterfield Shire Council (2000) 112 LGERA 173 …. 20.101 — v Terrace Earthmoving Pty Ltd and Page [2012] NSWLEC 216 …. 16.16 — v TransGrid [2003] NSWLEC 18 …. 13.22 — v Truegain Pty Ltd (No 4) [2014] NSWLEC 179 …. 20.96, 20.107 — v Tyco Water Pty Ltd (2005) 142 LGERA 241; [2005] NSWLEC 453 …. 1.24, 20.106, 20.110 — v Unomedical Pty Ltd (No 3) [2010] NSWLEC 198 …. 20.79, 20.80, 20.81 — v — (No 4) [2011] NSWLEC 131 …. 20.106 — v Vicary Corporation Pty Ltd (1997) 96 LGERA 46 …. 20.93 — v Virotec International Ltd (2001) 122 LGERA 118 …. 20.72 — v Waight (2003) 125 LGERA 399 …. 20.22 — v — (No 3) [2001] NSWLEC 126 …. 20.116 — v Warringah Golf Club [2003] NSWLEC 140 …. 20.47, 20.63 — v — (No 2) (2003) 129 LGERA 211 …. 20.95, 20.116 — v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 …. 8.84, 20.23, 20.96, 20.106, 20.109, 20.116 — v Water Board (1993) 79 LGERA 103 …. 20.39, 20.40, 20.43 — v White (1996) 92 LGERA 264 …. 20.116 Environmental and Earth Sciences Pty Ltd v Environment Protection Authority (1999) 103 LGERA 434 …. 20.77

Environmental Protection Authority, Re; Ex parte Chapple (1995) 89 LGERA 310 …. 10.42, 11.68, 11.70 Environmental Protection Authority, Re; Ex parte Sandbourne Holdings Pty Ltd [2002] WASCA 75 …. 11.70 Ernst v EnCana Corp [2014] ABQB 672 …. 18.65 Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 …. 10.9 Esposito v Commonwealth of Australia [2014] FCA 1440 …. 5.34 Esso Petroleum Co Ltd v Southport Corp Co Ltd [1956] AC 218; [1955] 3 All ER 864 …. 3.19, 3.24 Ethyl Corp v EPA 426 US 941 (1976) …. 1.21 European Bank Ltd v Evans of Robb Evans & Associates (2010) 264 ALR 1; [2010] HCA 6 …. 21.11 Evangelista v Development Assessment Commission (2004) 136 LGERA 180 …. 10.2 — v — [2004] SAERDC 30 …. 16.16 Evans v Forestry Commission of New South Wales (1982) 48 LGRA 266 …. 11.23 — v Maclean Shire Council (2003) 138 LGERA 229 …. 11.18 — v — [2004] NSWLEC 89 …. 22.9

F F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) (2007) 158 LGERA 250; [2007] NSWLEC 537 …. 8.31, 8.78, 11.86, 11.87, 21.17, 22.40, 22.41, 22.42, 22.65, 22.79 F v R (1983) 33 SASR 189 …. 3.29 Fabcot Pty Limited v Byron Shire Council [2010] NSWLEC 1013 …. 8.52 Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 …. 21.22 — v Florence Flowers Pty Ltd [2006] NSWLEC 707 …. 15.24 — v N & S Olivieri Pty Ltd [2003] NSWCA 41 …. 10.25 Falkenberg v Minister for Environment and Conservation [2011] SAERDC 52 …. 7.29

Fanirata Pty Ltd v Logan City Council [2013] QPEC 55 …. 21.39 Fanna v Leavy; Rue v Leavy [2005] QCA 378 …. 14.46 Farquhar v Colac Otway Shire Council [2007] VCAT 61 …. 18.78 FastBuck$ v Dudley Pastoral Co Pty Ltd (No 2) (2002) 120 LGERA 80 …. 22.9 Fejo v Northern Territory of Australia (1998) 156 ALR 721 …. 2.8 Fell v Can Recycling (SA) Pty Ltd (2003) 133 LGERA 18; [2003] SASC 358 …. 7.13, 16.8 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 …. 7.17 Fergusson v Stevenson (1951) 84 CLR 421 …. 5.44, 14.7 Field v South Australian Soccer Association [1953] SASR 224 …. 3.21 Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council [2013] NSWLEC 65 …. 10.70, 22.26, 22.79 Filipowski v Dayton Corporation (2004) 138 LGERA 150 …. 20.112 — v Fratelli D’Amato (2000) 108 LGERA 88; [2000] NSWLEC 50 …. 15.126, 20.54 — v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 …. 15.126 — v Island Maritime Ltd (2006) 153 LGERA 1 …. 20.112 — v Schiffsbeteiligungsges mbh & Co KG; Filipowski v Kleemann (2004) 134 LGERA 48 …. 20.112 — v Thorneloe (2000) 112 LGERA 184 …. 20.107 Fischer and Australian Fisheries Management Authority, Re; Tapley and Australian Fisheries Management Authority, Re (2005) 41 AAR 417; [2005] AATA 936 …. 18.44, 18.46 Fisheries Jurisdiction Case: Spain v Canada (1998) ICJ Reports 432 …. 4.23 Fitzgerald v Firbank [1897] 2 Ch 96 …. 3.19, 3.21 Flynn v Whitehouse (1989) 68 LGRA 275 …. 3.16 Foley v Padley (1984) 154 CLR 349 …. 22.53 Forbes Shire Council v AG Australia Holdings Ltd [2007] NSWSC 847 …. 16.29

— v Pace (2002) 124 LGERA 37 …. 3.41 Ford Motor Co v Environment Protection Authority (1989) 37 APAD 314 …. 15.76 Forestry Commission of New South Wales v Corkill (1991) 73 LGRA 247 …. 14.38, 21.16 Forestry Tasmania v Brown (2007) 158 LGERA 191; [2007] FCAFC 186 …. 2.39, 6.7, 6.17, 6.38, 9.10, 18.75 Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219 …. 13.18, 13.21 Forman v Australian Capital Territory Planning and Land Authority [2013] ACTSC 167 …. 10.40, 22.44, 22.78 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. 19.9 Fosters Group Ltd v Mornington Peninsula Shire Council [2010] VCAT 104 …. 10.28 Fox v Brisbane City Council (2003) 127 LGERA 390 …. 10.2, 10.34 Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 Qd R 72 …. 19.13, 19.18 Frayne v City of Burnside [2010] SAERDC 28 …. 13.33 Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346 …. 2.39, 19.4, 19.18 Friends of Elliston and Environment Conservation Inc v South Australia [2007] SASC 19 …. 22.70 Friends of Hinchinbrook Society Inc v Minister for Environment [1997] FCA 55 …. 19.43, 22.22, 22.73, 22.77 — v — (No 2) (1997) 93 LGERA 249 …. 22.74 — v — (No 5) (1998) 99 LGERA 140 …. 21.27 — v Minister for the Environment (No 3) (1997) 95 LGERA 229 …. 9.74, 12.16, 19.43, 22.73, 22.77 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 …. 21.30, 21.41 — v — (No 2) [2015] NSWLEC 76 …. 22.61, 22.79 Friends of Mallacoota Inc v Minister of Planning and Minister for

Environment and Climate Change [2010] VSC 222 …. 11.58, 18.57, 22.36 Friends of South West Rocks Inc v Machro Pty Ltd (2004) 136 LGERA 198 …. 9.45, 10.9, 11.14, 11.35, 22.64 Friends of the Wildlife Reserves Inc v Darebin City Council [2005] VCAT 137 …. 19.23, 19.27 Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 …. 9.55 Frydman v Port Phillip City Council [2012] VCAT 1838 …. 17.59 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207 …. 18.66 — v — [2013] NSWLEC 38 …. 22.47

G Gagarimabu v Broken Hill Pty Co Ltd [2001] VSC 304 …. 4.2 Gales Holdings Pty Ltd v Tweed Shire Council (1999) 110 LGERA 235 …. 11.21, 22.47 — v — [2006] NSWLEC 85 …. 3.22, 8.66, 11.35 — v — [2006] NSWLEC 212 …. 14.94 — v — [2008] NSWLEC 209 …. 3.22, 13.51, 14.98 — v — [2011] NSWSC 1128 …. 3.20, 3.21, 3.22, 3.38, 3.43 — v — [2013] NSWCA 382 …. 3.21, 3.22, 3.43 Gallo v Chief Executive, Dept of Environment and Resource Management [2012] QLC 0015 …. 8.38, 8.53 Gard v Gibsons Ltd [2004] TASSC 108 …. 15.29 — v Pivot Acquaculture (2003) 131 LGERA 197 …. 15.29, 15.60, 20.81 Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council (No 2) [2010] QPEC 140 …. 8.53, 13.24 Garrett v Freeman (No 2) (2006) 145 LGERA 459 …. 20.81 — v — (No 4) [2007] NSWLEC 389 …. 14.81, 20.59 — v — (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 …. 14.82, 20.55, 20.59, 20.107, 20.116

— v Langmead [2006] NSWLEC 627 …. 14.81 — v Williams (2006) 160 LGERA 115 …. 20.23, 20.105, 20.106, 20.110 — v — (2007) 151 LGERA 92 …. 20.117, 20.118 Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 …. 14.38 Gatacre v Soil Conservation Service (NSW) (1992) 78 LGERA 379 …. 13.33, 20.39, 20.52 Gate v City of Fremantle (1986) 23 APAD 366 …. 19.10 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 …. 22.46 Geelong Community for Good Life Inc v Environment Protection Authority (EPA) (2008) 159 LGERA 438; [2008] VSC 185 …. 7.33, 22.34, 22.36 — v Greater Geelong City Council [2008] VCAT 1687 …. 19.23, 19.27 Geelong Regional Commission v Barrabool Shire Council (1984) 14 APAD 258 …. 19.10, 19.22 Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 …. 13.46, 13.50, 14.98 — v — [2008] NSWLEC 254 …. 8.52, 13.36, 13.46, 13.50 GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342 …. 8.46 Giles v Baw Baw Shire Council [2009] VCAT 61 …. 8.68 Gilmore and Australian Fisheries Management Authority, Re [2005] AATA 943 …. 18.45 Giorganni v R [1985] HCA 29 …. 20.64 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 187 …. 18.57 — v — (No 2) [2008] VCAT 1545 …. 8.67, 17.57 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 …. 13.33, 13.34, 20.23, 20.105, 20.106, 20.110, 20.111, 20.113 Giuffrida v Manningham City Council [2005] VCAT 571 …. 22.73 Glaser v Poole (No 2) [2010] NSWLEC 232 …. 21.34 Glendinning Minto Pty Ltd v Gosford City Council [2010] NSWLEC 1151 ….

13.48, 13.49, 13.54 Glenella Estates Pty Ltd v Mackay Regional Council [2010] QPEC 132 …. 8.78, 9.25 Glengyle Proprietors Pty Ltd v Minister for Environment and Conservation [2009] SASC 376 …. 18.28 Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444 …. 11.43 — v Satellite & Wireless Pty Ltd [2014] FCAFC 51 …. 5.52 Goldberg v Waverley Council [2007] NSWLEC 259 …. 11.87 Golden v Coffs Harbour City Council (1991) 72 LGRA 104 …. 11.88 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath v Orogen Pty Ltd [2010] NSWLEC 144 …. 14.82, 20.115 Gordon Plath of the Department of Environment, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 …. 14.82 Gosford City Council v Brand [2006] NSWLEC 422 …. 22.11 — v Forrester [2010] NSWLEC 49 …. 13.34 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 …. 22.64 Grafton Dell Pty Ltd v Ballarat City Council [2012] VCAT 1241 …. 12.72 Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1 …. 3.29, 3.33 — v — (2002) 125 LGERA 1; [2002] HCA 54 …. 3.29, 3.34, 19.51 Grant v Downs (1976) 135 CLR 674 …. 15.85, 20.68 — v Kiama Municipal Council [2006] NSWLEC 70 …. 22.10 Gray v Macquarie Generation [2010] NSWLEC 34 …. 17.41, 17.44 — v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 …. 8.77, 11.87, 11.88, 11.90, 17.55, 22.62 Graymarshall Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2010] NSWLEC 54 …. 7.23, 20.66 Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd (2004) 135 LGERA 401 …. 12.19, 22.57 Great Lakes Council v Lani (2007) 158 LGERA 1 …. 21.2, 21.16, 21.17, 21.22, 21.27, 22.14

Great Southern Managers Australia Ltd v Baw Baw Shire Council [2008] VCAT 375 …. 18.78 Great Southern Property Managers Pty Ltd v Colac-Otway Shire Council (2005) 144 LGERA 247 …. 10.2 — v — [2006] VCAT 706 …. 18.78 Greater Dandenong City Council v SITA Australia Pty Ltd [2006] VCAT 1361 …. 16.15 Greek Orthodox Community of St George Brisbane v Brisbane City Council [2011] QPEC 139 …. 10.36 Green and Australian Fisheries Management Authority, Re [2004] AATA 426 …. 18.46 Green and Australian Fisheries Management Authority, Re [2008] AATA 1074 …. 8.67, 18.46 Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 …. 18.26 Greendene Development Corp Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107; 134 LGERA 228; [2003] WASCA 242 …. 10.42, 11.68, 11.70, 11.73, 22.26, 22.29 Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGERA 143 …. 8.64, 22.67 — v — [1994] NSWLEC 178 …. 2.70, 17.39 Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 LGERA 233 …. 22.59 Greenpeace New Zealand Inc v Minister of Fisheries (unreported, High Court of New Zealand, 27 November 1995) …. 8.64 Greentree v Director-General of the Department of Land and Water Conservation [2002] NSWLEC 53 …. 20.5 — v Minister for the Environment and Heritage (2005) 143 LGERA 1; [2005] FCAFC 128 …. 4.44, 6.18, 12.23, 20.16, 20.114 Greenwood v Warringah Council [2013] NSWLEC 1119 …. 8.52 — v — Council [2013] NSWLEC 223 …. 22.4, 22.23 Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20 ….

2.10 Grishin v Conservator of Flora and Fauna [1998] ACTAAT 250 …. 12.44 Grunseth v Resource Planning and Development Commission [2008] TASSC 35 …. 9.49 Guerra v Italy (1998) 26 EHRR 357 …. 2.45 Gunns Ltd v Marr [2005] VSC 251 …. 2.42 — v — [2008] VSC 464 …. 2.42 — v — (No 2) [2006] VSC 329 …. 2.42 — v — (No 3) [2006] VSC 386 …. 2.42 Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow Case) (1986) 7 NSWLR 353; 61 LGRA 401 …. 10.16, 11.22, 11.23, 11.86, 11.87, 22.38 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 …. 11.100, 22.41

H H and A van Beelan v Kingborough Council [2010] TASRMPAT 245 …. 13.42 Haddon v Lynch [1911] VLR 230 …. 3.21 Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226 …. 2.70, 12.42, 22.18 Hakim v Waterways Authority of New South Wales (2006) 149 LGERA 415 …. 20.5 Hall v Beckenham Council (1949) 1 KB 716 …. 3.20 Hallett v City of Port Phillip [2015] VSC 313 …. 22.32 Halsey v Esso Petroleum [1961] 2 All ER 145 …. 3.21 Hamilton v Sutherland Shire Council [2012] NSWLEC 1015 …. 8.66, 8.68 Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 012 …. 2.72, 8.21, 8.60, 11.49, 17.56 Hand and Minister for the Environment, Heritage and the Arts [2008] AATA 893 …. 14.5

Hansen v City of Melbourne (1977) 7 VPA 1 …. 19.10 Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139 …. 9.4, 18.15 Harden Bergia Pty Ltd v Baulkham Hills Shire Council (2002) 125 LGERA 273 …. 7.13 Harders & Harders v City of Port Lincoln [2002] SAERDC 117 …. 10.38 Hardie Holdings Pty Ltd v Director-General Department of Natural Resources (2007) 151 LGERA 373 …. 20.28, 22.70 Harding v Brisbane City Council [2008] QPEC 75 …. 10.70 Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 …. 16.17, 20.49, 20.50, 20.110 Harkness v Woodhead [1950] SASR 54 …. 3.21 Harmer and Western Australian Planning Commission [2012] WASAT 142 …. 13.30 Harper v Minister for Sea Fisheries (1989) 168 CLR 314; 88 ALR 38; 63 ALJR 687; [1989] HCA 47 …. 3.7, 3.8, 3.9, 5.30, 5.40, 5.41, 7.38, 18.47 Harris v Carnegie’s Pty Ltd [1917] VLR 95 …. 3.21 — v Harrison [2014] NSWCCA 84 …. 20.111 — v Scenic Rim Regional Council [2014] QPEC 16 …. 22.56 Harrison v Baring (No 2) [2012] NSWLEC 145 …. 20.102 — v Harris [2013] NSWLEC 105 …. 20.107 — v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 …. 7.15 Harvey v Minister Administering the Water Management Act 2000; Tubbo v Same (2008) 160 LGERA 50; [2008] NSWLEC 165 …. 8.31, 8.45, 18.26, 22.36, 22.40, 22.64 Hasan v Moreland City Council [2005] VCAT 1931 …. 8.68 Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310 …. 11.17 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 …. 9.52, 9.73, 22.47 — v — (No 3) [2010] NSWCA 39 …. 21.28, 21.30

Hatton v UK (2003) 37 EHRR 28 …. 2.45 Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217 …. 8.34, 8.77, 17.55, 17.59, 22.27, 22.30 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Ltd [2008] NSWLEC 138 …. 13.32 — v Sammut (2000) 111 LGERA 208 …. 10.9, 22.34 He Kaw Teh v R (1985) 157 CLR 523 …. 20.36, 20.71, 20.76, 20.77 Heavenly Queen Temple Society Inc v Maribyrnong City Council [2005] VCAT 875 …. 8.68, 16.45 Helman v Byron Shire Council (1995) 87 LGERA 349 …. 11.19, 11.87, 11.88, 22.43 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 …. 5.40, 5.41 Hemming v Droulias (2000) 107 LGERA 354 …. 20.96 Henderson v Corporation of the City of Adelaide (No 2) [2012] FCA 9 …. 14.18 — v Hickling [2010] NSWLEC 213 …. 21.9 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 …. 21.16, 21.17 — v Minister for Planning [2009] NSWLEC 185 …. 10.62 — v — (No 3) [2010] NSWLEC 155 …. 21.31, 21.33 Hill v Higgins [2012] NSWSC 270 …. 3.19, 3.20, 3.21 — v Woollahra Municipal Council (2003) 127 LGERA 7 …. 22.20, 22.64 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 …. 7.18 Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45 …. 20.77, 20.79 — v Mouawad [2014] NSWLEC 59 …. 22.39 — v Suciu [2009] NSWLEC 145 …. 16.17 Hinset Pty Ltd v Lane Cove Council [2011] NSWLEC 120 …. 22.11 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service

(1998) 103 LGERA 355 …. 20.50 Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134 …. 8.68 Hobart City Council v Budd [2008] TASSC 68 …. 15.25 Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514 …. 14.98 Hodgens v Gunn; Ex parte Hodgens (1989) 68 LGRA 395 …. 22.32 Hoffie v Brisbane City Council [2013] QPEC 41 …. 22.9 Holcim (Aust) Pty Ltd v Indigo Shire Council [2012] VCAT 640 …. 12.72 Holeywell v Clarence City Council [1994] ELR 163 …. 19.17 Holmes v Director-General, Department of Infrastructure, Planning and Natural Resources (2005) 139 LGERA 102 …. 14.81, 20.5 Holroyd City Council v Abouantoun t/as AKA Demolition and Tipping (2003) 140 LGERA 250 …. 20.110 — v Skyton Developments Pty Ltd (2002) 119 LGERA 225 …. 20.77 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 …. 19.58 Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65 …. 9.49 Honeywell Ltd and Commissioner for Land and Planning, Re [2000] ACTAAT 28 …. 10.2 Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178 …. 21.31 Hornsby Council v Roads and Traffic Authority (NSW) (1997) NSWCA 40577/94 …. 2.52 Hornsby Shire Council v Porter (1990) 70 LGRA 175 …. 22.44 — v Vitone Developments Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 …. 11.35, 14.84, 14.94, 20.39 Horta v Commonwealth (1994) 181 CLR 183 …. 4.3, 4.44 Hoser v Department of Sustainability and Environment [2012] VCAT 264 …. 14.56 — v — [2014] VSCA 206 …. 14.56 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 …. 22.40 Houghton v Bond [2010] VSC 193 …. 13.27

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 …. 9.53 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 …. 11.88 — v — [2010] NSWSC 1312 …. 3.20 — v — [2011] NSWCA 349 …. 10.15, 10.16, 11.88, 22.27 — v — (No 3) [2012] NSWLEC 43 …. 21.6 Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136; [2008] NSWLEC 116 …. 2.71, 7.36, 8.40, 8.43, 8.48, 8.78, 9.38, 17.57, 18.78, 22.47, 22.49 Hudak v Waverley Municipal Council (1990) 70 LGRA 130 …. 9.53 Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92 …. 22.39 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 …. 19.44 — v — [2005] FCA 664 …. 4.27, 19.44 — v — [2006] FCAFC 116 …. 4.27, 19.44 — v — [2008] FCA 3 …. 2.38, 4.27, 4.41 — v — [2008] FCA 36 …. 2.38, 4.27, 4.41 — v — [2015] FCA 1275 …. 4.27 — v Minister for the Environment and Heritage (2003) 126 FCR 205; [2003] FCA 64 …. 6.14, 14.19 — v National Parks and Wildlife Service [2000] NSWADT 133 …. 14.38 Humane Society International and Minister for the Environment and Heritage [2006] AATA 298 …. 8.57 Hume v Launceston City Council (unreported, Resource Management and Planning Appeal Tribunal (Tas), No 3166/96) …. 20.7 Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 …. 19.58 Hunnam v Evans (2003) 129 LGERA 106 …. 22.65 Hunter v Minister for Planning [2012] WASC 247 …. 22.70 Hunter Community Environment Centre Inc v Minister for Planning [2012]

NSWLEC 195 …. 8.77, 17.55, 17.56, 17.59 Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169 …. 10.2 Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd (2003) 129 LGERA 344 …. 21.41 Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 …. 8.34, 8.38, 8.68, 8.77, 17.56 — v Minister for Planning and Infrastructure (No 4) [2014] NSWLEC 200 …. 18.62 Hunter Resources Ltd v Melville (1988) 164 CLR 234 …. 22.44 Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378 …. 13.55 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 …. 22.56 Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 145 LGERA 386; [2006] HCA 12 …. 5.50 Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334 …. 11.44 Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312 …. 7.13, 11.18

I ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LGERA 373; [2009] HCA 51 …. 2.22, 2.31, 5.22, 5.36, 5.37, 18.22, 18.32 Idonz Pty Ltd v National Capital Development Commission (1985) 58 LGRA 99 …. 10.9 Ikic v Evans (1989) 7 BCL 114 …. 3.20 Ikonomidis Reid Pty Ltd v Whittlesea City Council [2010] VCAT 1344 …. 13.27 Ilic v City of Adelaide [2010] SASC 139 …. 2.70, 2.71, 22.18, 22.75 Impress (Worcester) Ltd v Rees [1971] 2 All ER 357 …. 20.34 Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme

Court Cases 212 …. 2.45 ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 …. 19.28, 19.54 Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 …. 10.15 Ingram, Re [1951] VLR 424 …. 12.3 INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 …. 22.66 International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage [2005] AATA 1210 …. 14.5 Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 …. 8.52, 13.51, 13.54 Irwin v Meander Valley Council (2007) 157 LGERA 347 …. 22.40 Isbester v Knox City Council [2015] HCA 20 …. 22.40

J Jacra Nominees Pty Ltd v Surf Coast Shire Council [2007] VCAT 1190 …. 22.73 Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79; ELR 0104 …. 6.48, 11.14, 11.23, 11.26, 11.27, 11.29, 11.30, 11.87, 11.88, 21.6, 21.13 Javanmard v City of Burnside [2012] SAERDC 39 …. 13.33 Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of New South Wales, Sydney Water Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89 …. 20.4 Jelinek v Shire of Alexandra [1990] ELR 029 …. 19.23 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146 …. 2.61 John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning (1999) 106 LGERA 150 …. 22.43 John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 …. 21.31, 21.41 Johnson v Johnson (2000) 201 CLR 488 …. 22.40

— v Kent (1975) 132 CLR 164 …. 19.45, 19.47 Johnson Trading Industries Pty Ltd v Port Pirie Regional Council [2007] SAERDC 42 …. 17.57 Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133 …. 13.20, 20.5 Jones v Glenorchy City Council (2006) 145 LGERA 76; [2006] TASSC 27 …. 15.25, 20.22, 20.23 — v Llanrwst Urban District Council [1911] 1 Ch 393 …. 3.19 — v Lysaght (Aust) Ltd (1983) 51 LGRA 90 …. 20.33 — v Queensland [2001] FCA 756 …. 12.14 JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 …. 22.17 Justice and Australian Fisheries Management Authority and Department of Fisheries Western Australia, Re [2002] AATA 49 …. 18.46

K Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135 …. 5.46 Kangaroo Point Residents Association v Brisbane City Council [2009] QPEC 33 …. 10.70 Kapiris v Macedon Ranges Shire Council [2012] VCAT 1969 …. 22.9 Kari and Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 …. 20.111, 22.39 Karpany v Dietman [2013] HCA 47 …. 2.13 Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; 72 ALJR 722 …. 5.28, 8.8 Katoomba Gospel Trust v Blue Mountains City Council (1993) 130 LGERA 266 …. 7.15, 10.3 Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 …. 19.58 Keam v Bass Coast SC [2013] VCAT 1647 …. 13.27 Keech v Western Lands Commissioner (2003) 132 LGERA 23 …. 8.26, 9.14, 13.64 Kelly v Kelly (1990) 92 ALR 74; 64 ALJR 234 …. 2.33

— v Mosman Municipal Council [2010] NSWCA 370 …. 19.53, 21.44 — v R [2004] HCA 12 …. 7.9 Kelvedon Pty Ltd v Shire of Northam [2011] WASC 288 …. 19.10 Kempark Pty Ltd v New South Wales [1998] NSWLEC 205 …. 16.25 Kempsey Shire Council v Slade [2015] NSWLEC 135 …. 20.32 Kennedy v Director-General, Department of Environment and Conservation [2006] NSWLEC 456 …. 22.55, 22.57 — v — (No 2) [2007] NSWLEC 271 …. 21.27 — v Director-General, National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 …. 21.27, 21.33 — v New South Wales Minister for Planning [2010] NSWLEC 129 …. 8.33, 8.34 — v — [2010] NSWLEC 177 …. 21.13 — v — [2010] NSWLEC 240 …. 22.66 — v Stockland Development Pty Ltd (No 2) [2011] NSWLEC 10 …. 21.41, 21.42 — v — (No 3) [2011] NSWLEC 249 …. 21.30 Kent v Cavanagh (1973) 1 ACTR 43 …. 19.47 — v Johnson (1973) 21 FLR 177 …. 2.52 — v Minister for Works [1973] 2 ACTR 1 …. 3.21 Kenway & Smith v Cohen [2010] QDC 236 …. 13.26 Keough v Burnside City Corporation (1992) 75 LGRA 163 …. 12.74 Kerfoot Developments Pty Ltd v Albury City Council [2011] NSWLEC 154 …. 14.97 Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64 …. 18.78 Khreich v Holroyd City Council [2015] NSWLEC 1360 …. 13.34 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70 …. 22.17 Kiao v West (1985) 159 CLR 550 …. 22.36 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277

…. 22.55, 22.56, 22.57, 22.64, 22.79 — v — (2007) 150 LGERA 333 …. 21.33 King v Bathurst Regional Council [2006] NSWLEC 505 …. 22.75 — v Gousettis (1986) 60 LGRA 116 …. 19.8 — v Great Lakes Shire Council [1986] 58 LGRA 366 …. 10.16, 22.68 — v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Ltd v Minister for Planning [2010] NSWLEC 1102 …. 8.68, 9.73, 17.57, 18.19 King Cole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 77 LGRA 92 …. 19.17 Kingscote District Council v Kangaroo Island Eco Action Inc (No 1) (1996) 92 LGERA 117 …. 9.22, 13.10, 22.43 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 …. 22.27, 22.30 Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 …. 11.23, 11.27 Klein v R (1989) 39 A Crim R 332 …. 14.4 Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 3.20 Krajniw v Brisbane City Council [2008] QPEC 80 …. 13.24 — v — [2010] QPEC 33 …. 14.46 — v — [2011] FCA 563 …. 6.13 Krulow v Glamorgan Spring Bay Council [2013] TASSC 33 …. 21.4 Ku-ring-gai Council v Minister for Planning (NSW) (No 2) [2008] NSWLEC 276 …. 21.32 — v Sydney West Joint Regional Planning Panel (No 2) [2010] NSWLEC 270 …. 10.70 Ku-ring-gai Municipal Council v Beaini (2001) 112 LGERA 397 …. 13.34

L L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 3.29

L’Estrange v Brisbane Gas Co [1928] St R Qd 180 …. 3.21 Lac Lanoux Arbitration, Spain v France (1957) 12 RIAA 285 …. 4.15 Lacey v City of Burnside [2009] SASC 136 …. 13.33 Lainson v Sutherland Shire Council (1998) 108 LGERA 1 …. 22.40 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225; [2003] NSWCA 313 …. 10.9, 10.26, 10.50, 13.44 Lakshmanan v City of Norwood [2010] SASCFC 15 …. 22.57 Lamason v Australian Fisheries Management Authority [2009] FCA 245 …. 9.16, 18.43, 18.44 Lamattina v Gould [2009] SASC 130 …. 13.12 Land Oberösterreich und Österreich v Commission T-366/03 …. 8.74 Landon-Lane v Minister for Economic Development and Tourism and Premier of Tasmania [2009] TASSC 50 …. 22.29 Lane Cove Council v Minister for Urban Affairs and Planning (2005) 140 LGERA 185 …. 9.48 Lansen v Minister for Environment and Heritage [2008] FCA 903 …. 6.27, 6.32, 6.60, 6.67, 6.70, 19.44, 22.64 — v — [2008] FCAFC 189 …. 6.70, 22.46 — v — (No 3) (2008) 162 LGERA 258 …. 21.27 Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416 …. 18.45, 18.46 Latoudis v Casey (1990) 170 CLR 534 …. 21.23 Lawrence v Kempsey Shire Council (1995) 87 LGERA 49 …. 3.39 Lawrence, Re; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549; 84 LGERA 113 …. 15.91, 20.6, 21.18, 22.44 Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2008] FCA 588 …. 19.44 — v — (2009) 165 LGERA 203; [2009] FCA 330 …. 7.36, 8.66, 8.71 — v — (2009) 178 FCR 385; [2009] FCAFC 114 …. 2.39, 6.71, 8.53, 8.66 Leacth v Director General of National Parks and Wildlife Service [1993] NSWLEC 191 …. 8.25

— v National Parks and Wildlife Service & Shoalhaven City Council (1993) 81 LGERA 270 …. 4.45, 8.62, 8.66, 8.67, 8.84, 10.71, 11.87, 22.59 Lee v Commonwealth of Australia [2014] FCA 432 …. 5.36 Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 …. 20.55 — v Telstra Corporation (2005) 139 LGERA 62 …. 5.52 Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169 …. 11.30 — v Minister for Planning (1992) 77 LGRA 402 …. 9.39 — v — (1992) 78 LGERA 306 …. 22.35, 22.43 Leonard v Southern Rural Water [2007] VCAT 1562 …. 18.28 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 …. 22.29 Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QCA 145 …. 22.43, 22.44 Life of the Land v Brinegar 414 US 1052 (1973) …. 11.97 Lilywhite v Trimmer [1867] 16 LT 318 …. 3.21 Linaker v Greater Geelong City Council [2010] VCAT 1806 …. 19.10, 19.22 Lincoln Minerals Ltd v Minister for Sustainability, Environment and Conservation [2014] SAERDC 33 …. 7.12 Lindner & Whetstone v Regional Council of Goyder [2005] SAERDC 115 …. 18.28 — v — (No 2) [2006] SAERDC 67 …. 8.67, 17.57 Lismore City Council v Ihalainen [2013] NSWLEC 149 …. 22.32 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 …. 22.40, 22.44 Liverpool City Council v Cauchi (2005) 145 LGERA 1 …. 22.32 — v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265 …. 11.14, 21.6, 21.16 Loader v Moreton Bay Regional Council [2013] QCA 269 …. 22.21, 22.23, 22.79 Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225 …. 7.13, 11.18 Lomas v Peek [1947] 2 All ER 574 …. 20.49

Long v Hornsby Shire Council [2007] NSWLEC 267 …. 10.26 Lopez Ostra v Spain (1994) 20 EHRR 277 …. 2.45 Lord v Hiscock (1980) 47 LGRA 168 …. 19.10 Lorne Country Club Inc v Surf Coast Shire Council [2004] VCAT 260 …. 13.38 Love v Victoria [2009] VSC 215 …. 22.70 Lowden v Shire of Kilmore (1989) 41 APA 319 …. 19.23 Lowy v Land and Environment Court of New South Wales [2002] NSWCA 353 …. 21.20 LPD Property Pty Ltd v Moreland City Council [2011] VCAT 65 …. 19.42 Lucy v OCC Holdings Pty Ltd (2008)157 LGERA 279 …. 7.36 Lyons v Sutherland Shire Council (2000) 110 LGERA 441 …. 22.73, 22.77

M MC Mehta v Kamal Nath (1987) 4 SCC 463 …. 21.19 Mabo v Queensland (No 2) (1992) 175 CLR 1 …. 2.8, 2.10, 2.11, 3.2, 4.44 Macarthur Wind Farm Pty Ltd v Moyne Shire Council [2006] VCAT 1423 …. 17.46, 17.57 Macedon Ranges Shire Council v Thompson [2009] VSCA 209 …. 21.34 Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353 …. 13.51 Mackenzie Intermoodal Pty Ltd v Lawson (2003) 127 LGERA 219 …. 10.9 Maclaine Watson v Department of Trade and Industry [1989] 3 All ER 523 …. 4.41 Macquarie Generation v Hodgson [2011] NSWCA 424 …. 3.45, 17.44 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 …. 22.70 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138; 141 LGERA 106 …. 19.19, 19.33, 21.18, 21.20, 22.40 Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 …. 7.14, 7.21, 16.16, 22.32, 22.49

Magee v Boroondara City Council [2011] VSC 78 …. 22.40, 22.41 Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234 …. 22.27, 22.45, 22.52, 22.53 Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659 …. 20.32, 20.33, 20.43 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 …. 22.11 Malliate v Sharpe [2001] NSWSC 1057 …. 3.21 Malone v Laskey [1907] 2 KB 141 …. 3.11 Manchester Corp v Farnworth [1930] AC 171 …. 3.44 Mandalong Progress Association Inc v Minister for Planning (2003) 126 LGERA 408 …. 10.16 Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15 …. 14.98 — v Hortis (2001) 113 LGERA 321 …. 22.64 — v Leech [2015] NSWLEC 149 …. 20.32 Manotik v Warringah Council [2008] NSWLEC 1463 …. 10.23 Manwelland Pty Ltd v Dames & Moore Pty Ltd [2000] QSC 432 …. 16.45 — v — [2001] QCA 436 …. 16.45 March v Stramare (1991) 171 CLR 506 …. 3.36 Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 …. 3.43 Margarula v Minister for Environment (1999) 103 LGERA 240 …. 22.20 Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (NSW Court of Appeal, 23 December 1992, unreported) …. 21.35 Maroochy Shire Council v Barns [2002] QPEC 25 …. 21.5 Marrangaroo East Pty Ltd v Blayney Shire Council [2011] NSWLEC 245 …. 10.14 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 …. 22.70, 22.71 Marsh v Baxter [2014] WASC 187 …. 3.31 Martin v New South Wales Minister for Mineral and Forest Resources [2011] NSWLEC 38 …. 21.30

Mason v Greater Geelong City Council [2013] VCAT 2057 …. 2.72 — v Tritton (1994) 34 NSWLR 572 …. 2.11 Massachusetts v Environmental Protection Agency 127 S Ct 1438 (2007) …. 17.42 Massie v Brisbane City Council [2007] QCA 159 …. 22.74 Masterbuilt Pty Ltd v Hornsby Shire Council [2005] NSWLEC 212 …. 10.26 Matic v Mid-Western Regional Council (No 3) [2009] NSWLEC 1220 …. 22.10 Maule v Liporoni (2002) 122 LGERA 140 …. 22.46 Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 …. 22.9 Maxwell v Hornsby Council (2002) 121 LGERA 186 …. 7.13 May v Redland Shire Council [2009] QPEC 106 …. 13.32 MBF Sealink Pty Ltd v Matthews (1993) 80 LGERA 437 …. 19.17 MC Metha v Kamal Nath (1997) 1 SCC 388 …. 2.45 MC Property Investments Pty Ltd v Sunshine Coast Regional Council (No 2) [2013] QPEC 39 …. 22.9 MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; [2006] NSWLEC 581 …. 10.14, 22.47, 22.72 McCallum v Sandercock [2011] NSWLEC 175 …. 15.24, 19.39, 21.2 McClure v Mayor and Councillors of the City of Stirling (No 3) [2009] WASC 247 …. 21.25 McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority (2000) 131 LGERA 234 …. 20.51 McCubbin v Environment Protection Authority (1986) 20 APA 381 …. 19.11, 19.22 McDonald v Moorabool Shire Council [2005] VCAT 1764 …. 8.67 McEachern v Minister for Energy and Resources, and Ports [2001] VSC 506 …. 18.49 McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289 …. 2.40, 3.21

McGill v Bass Coast Shire Council [2007] VCAT 1028 …. 9.38 McGinn v Ashfield Council [2011] NSWLEC 105 …. 21.26, 21.32, 21.33 McGovern v Ku-ring-gai Council (2007) 153 LGERA 308; [2007] NSWLEC 22 …. 22.40, 22.70 — v — [2008] NSWCA 209 …. 10.19, 11.35, 11.88 McKell v Rider (1908) 5 CLR 480 …. 3.21 McKenna v British Aluminium [2002] Env LR 30 …. 2.46 McKenzie v McKenzie [1970] 3 WLR 472 …. 19.53 McLaren v Lewis (No 2) [2011] NSWLEC 176 …. 21.23 MD Bleasel v Kingborough Council [2007] TASRMPAT 124 …. 8.67 Mead v Whisson [2006] SASC 69 …. 14.35 Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42 …. 7.36 Medway v Minister for Planning (1993) 80 LGERA 121 …. 22.36 Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 …. 6.7, 19.44, 21.8 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31 …. 3.21, 3.43 Melville v Craig Nowlan & Associates Pty Ltd (2002) 119 LGERA 186 …. 21.41 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 …. 2.2, 2.9 Meriton Apartments Pty Ltd v Council of City of Sydney [2010] NSWLEC 64 …. 10.50 — v — [2011] NSWCA 17 …. 13.45 — v — (No 2) [2010] NSWLEC 63 …. 22.10 — v Ku-ring-gai Council (2006) 152 LGERA 301 …. 10.26 — v Sutherland Shire Council [2006] NSWLEC 139 …. 10.3 Merman Pty Ltd v Parker, Minister for Minerals & Energy [1987] WAR 159 …. 22.34 Metgasco Limited v Minister for Resources and Energy [2015] NSWSC 453

…. 22.60 Metroll Victoria Pty Ltd v Wyndham City Council (2007) 152 LGERA 437 …. 21.15 Metropolitan Manila Development Authority v Concerned Residents of Manila Bay G. R. Nos. 171947-48, 18 December 2008 …. 21.19 Metropolitan Property Group v Moreland CC [2011] VCAT 1285 …. 8.53 Michael, Re; Ex parte WMC Resources Ltd (2003) 134 LGERA 246 …. 22.45 Michael Hesse Associates Pty Ltd v Parramatta City Council (2003) 131 LGERA 390 …. 8.48 Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256 …. 19.58 Michelmore v Minister for Environment and Conservation (2004) 137 LGERA 306 …. 9.21 Michos v Council of the City of Botany Bay [2012] NSWSC 625 …. 3.21, 3.23 Micklyn Investments Pty Ltd v Diggers Australia Pty Ltd [2006] SAERDC 76 …. 16.43 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290; 81 LGERA 104 …. 3.40, 3.43 Mid Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411 …. 22.55 Mildura Rural City Council v Minister for Major Projects (2006) 144 LGERA 335 …. 22.42 Millmerran Shire Council v Smith (No 2) [2008] QPEC 113 …. 21.23 Milne v Minister for Planning (No 2) [2007] NSWLEC 66 …. 11.29 Miltonbrook Managements Pty Ltd v Shellharbour City Council (2004) 134 LGERA 1 …. 11.18 Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation [2014] WASC 468 …. 22.79 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 …. 2.67 — v — [2009] NSWCA 352 …. 22.27 Minister Administering the Ports Corporatisation and Waterways

Management Act 1995 v Hakim [2005] NSWLEC 92 …. 20.71 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 …. 8.39, 8.82, 22.38, 22.57, 22.59, 22.67, 22.72, 22.73, 22.77 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218 …. 22.18, 22.33, 22.38 Minister for Immigration and Citizenship v Szjss [2010] HCA 48 …. 22.66 Minister for Immigration and Ethnic Affairs v Baker (1997) 24 AAR 457 …. 22.63 — v Teoh (1995) 183 CLR 273 …. 4.3, 4.43, 8.8, 22.34 — v Wu Shang Liang (1996) 185 CLR 259 …. 22.17 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 …. 22.34 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 …. 22.64 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 …. 2.64, 8.29, 8.31, 8.32, 8.33, 8.34, 8.36, 8.37, 8.77, 17.55, 22.28, 22.49, 22.57, 22.62, 22.65, 22.66, 22.79 — v — (No 2) [2008] NSWCA 334 …. 21.29, 21.33 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211 …. 9.16, 18.5, 18.44, 22.74 Minister for Resources, Re; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 …. 22.58 Minister for Sustainability, Environment, Water, Population and Communities v De Bono [2012] FCA 643 …. 14.18 Minister for the Environment, Re; Ex parte Elwood (2007) 154 LGERA 366; [2007] WASCA 137 …. 10.42, 11.68, 11.76, 22.70 Minister for the Environment v Karstens [2015] FCA 649 …. 12.30 — v Lucky S Fishing Pty Ltd [2015] FCA 10 …. 12.30 Minister for the Environment and Conservation v Simes (2007) 98 SASR 481; 153 LGERA 225; [2007] SASC 248 …. 7.32, 9.21, 18.28, 22.58 Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741 …. 6.46

— v — (No 3) (2004) 136 LGERA 89; [2004] FCA 1317 …. 6.73, 12.23, 20.16, 20.114 — v Queensland Conservation Council Inc (2004) 134 LGERA 272; [2004] FCAFC 190 …. 2.67, 4.44, 6.15, 6.17, 7.11, 7.14, 7.15, 19.44, 22.75 — v Warne [2007] FCA 599 …. 12.30, 20.17 — v Wilson [2004] FCA 6 …. 12.30, 20.16, 20.17 Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753 …. 13.12, 13.62, 14.18, 20.17, 20.97 — v PGP Developments Pty Ltd [2010] FCA 58 …. 6.19, 6.46, 6.73, 20.17 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 …. 7.18, 7.28, 9.39, 9.48, 11.87, 22.53 Minister of State for Conservation and Land Management and the Environment, Re; Ex parte West Australian Field and Game Association Inc (1992) 78 LGERA 81 …. 14.59, 22.18 Minnici v Warringah Council [2009] NSWLEC 1098 …. 10.23 Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 …. 2.45 Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349 …. 10.9, 10.16, 22.55 Mitchell v Vella (1999) 101 LGERA 333 …. 22.64 MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613 …. 3.46, 10.70 Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207 …. 7.13, 11.18 Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department Trade and Investment, Regional Infrastructure and Services [2011] NSWLEC 191 …. 22.71 Mooney v Maroondah City Council (2006) 147 LGERA 409 …. 13.32 Moore River Co Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 …. 13.32, 18.58 More and Water and Rivers Commission [2006] WASAT 112 …. 18.28

Moreno Gómez v Spain ECHR 4143/02 …. 2.45 Morris v Department of Environment and Climate Change [2008] NSWLEC 309 …. 14.38 Morrison v Che Mat (1997) 95 LGERA 213 …. 20.107 — v Peacock (2002) 123 LGERA 127; [2002] HCA 44 …. 4.44, 15.114 — v Peers (1995) 87 LGERA 39 …. 20.41, 20.93 — v Valle (1995) 87 LGERA 278 …. 20.41 Morrison Design Partnership Pty Ltd v North Sydney Council and DirectorGeneral of the Department of Planning (2007) 159 LGERA 361 …. 19.55, 19.56 Morsink v LaTrobe City Council (2005) 142 LGERA 134 …. 13.32 Mortimer v District Council of Streaky Bay [2014] SADC 75 …. 3.46 Moses v Western Australia [2007] FCAFC 78 …. 2.12 Mosman Church of England Preparatory School v Warringah Council [2009] NSWLEC 1190 …. 8.52, 10.23 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 29 …. 10.27 Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 …. 14.84 — v — (No 2) [2007] NSWLEC 770 …. 21.42 — v — (No 3) [2008] NSWLEC 1280 …. 13.50 Mouawad v Hills Shire Council [2013] NSWLEC 165 …. 20.62, 20.65, 20.107 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 …. 3.29 MOX Plant case (Ireland v United Kingdom) (Interim Measures) Order 41 ILM 405 (2002) …. 4.18 Mt Mercer Wind Farm Pty Ltd v Moorabool Shire Council [2011] VCAT 836 …. 13.27 Mudie v Gainriver Pty Ltd (No 2) (2002) 124 LGERA 393; [2002] QCA 546 …. 21.23, 22.9 Muldrock v R [2011] HCA 39 …. 20.103 Mulhern’s Waste Oil Removal Pty Ltd v Circelli [2009] SASC 353 …. 20.107

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Environment (unreported, NSWLEC, 19 June 1992) …. 11.23 — v — (1992) 130 LGERA 443 …. 12.67, 22.64, 22.75 National Rivers Authority v Yorkshire Water Service Ltd [1995] 1 All ER 225 …. 20.34 National Trust of Australia (NSW) v Heritage Council of New South Wales [1999] NSWLEC 104 …. 19.54 National Trust of Australia (NT) v Minister for Lands, Planning and Environment (1997) 98 LGERA 258 …. 19.15, 19.35 National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 …. 19.22, 19.35 National Trust of Victoria v VCAT [2010] VSC 430 …. 10.29 Nature Conservation Council of New South Wales Inc and Minister for Environment and Water Resources, Re [2007] AATA 1876 …. 14.6, 18.42 Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 …. 18.25, 18.27, 22.79 — v Minister for Sustainable Natural Resources (2004) 133 LGERA 168 …. 22.74 Naylor v Ku-ring-gai Council [2008] NSWLEC 1380 …. 19.55 Nelson v Burwood Municipal Council (1991) 75 LGRA 39 …. 10.9, 22.44 Neowarra v Western Australia [2003] FCA 1402 …. 2.11 Nettheim v Minister for Planning (unreported, LEC (NSW), Nos 40086 and 40139, 28 September 1988) …. 21.13, 21.26 New South Wales v Commonwealth (1975) 8 ALR 1 …. 5.29, 12.58 New South Wales Sugar Milling Co-op v Environment Protection Authority (1992) 75 LGRA 320 …. 20.47 Newbury District Council v Secretary of State for the Environment [1981] AC 578 …. 7.36 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 …. 7.49, 8.53, 11.25, 11.26, 11.27, 11.28, 11.35, 13.51, 13.54 — v — (No 2) [2010] NSWLEC 104 …. 8.52, 13.51

Newcastle City Council v Pace Farm Egg Products Pty Ltd [No 2] [2005] NSWLEC 241 …. 15.25 — v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 …. 13.32, 20.109 — v Wescombe [2009] NSWCA 265 …. 21.22 Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 …. 15.102, 20.92, 20.96 Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited [2015] NSWLEC 139 …. 15.102 Newchurch v Minister for Aboriginal Affairs and Reconciliation [2010] SASC 245 …. 22.44 Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42 …. 4.44, 5.32, 5.34 Ngo v Fairfield City Council [2009] NSWCCA 241 …. 20.111 Nicholls v Director-General, National Parks and Wildlife Service (1994) 84 LGERA 397 …. 8.63, 8.64 — v Ely Beet Sugar Factory [1931] 2 Ch 84 …. 3.19, 3.21 Nillumbik Shire Council v Potter [2010] VCAT 669 …. 13.32 Nixon v Tynemouth Sanitary Authority (1888) 52 JP 504 …. 3.27 No 2 Pitt St Pty Ltd v Wodonga Rural City Council (1999) 107 LGERA 141 …. 19.11 No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities, Re [2010] AATA 702 …. 15.137 Noble v Cowra Shire Council (2003) 129 LGERA 120 …. 22.64 Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd [2005] NSWSC 20 …. 3.30, 16.26 Norbis v Norbis (1986) 161 CLR 513 …. 22.74 Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335 …. 22.43, 22.60 North Coast Environment Council v Minister for Resources (1994) 85 LGERA 270 …. 19.5, 19.16, 19.30, 19.32, 19.37

North Queensland Conservation Council v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172 …. 19.37 — v Great Barrier Reef Marine Park Authority [2000] AATA 925 …. 12.18 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 …. 11.24 — v MOkaichael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; 97 LGERA 433 …. 10.27 — v Moline (No 2) [2008] NSWLEC 169 …. 20.52 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50 …. 13.32 — v — [2008] SASC 57 …. 17.55, 17.57, 18.57 Northcompass Inc v Hornsby Shire Council [1996] NSWLEC 213 …. 8.67 Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 …. 6.13, 6.15, 22.46, 22.47, 22.49, 22.56 — v — [2014] FCA 216 …. 21.27 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 20.52 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29 …. 2.15, 3.8 Northwest Residential Pty Ltd v Minister for Planning [2009] NSWLEC 1065 …. 10.3, 14.91, 14.98 Norvill v Chapman (1995) 133 ALR 226 …. 22.44, 22.77 — v Stokes (2006) 153 LGERA 278 …. 20.30 Notaras v Waverley Council [2007] NSWCA 333 …. 22.65 Novara Crescent Pty Ltd v Sutherland Shire Council (2004) 136 LGERA 135 …. 13.34 NSW Land and Housing Corp v Campbelltown City Council (2002) 126 LGERA 348 …. 10.6, 11.35, 11.88, 14.98, 22.64 Nuclear Tests case (Australia v France) (1973) ICJ Reports 99 …. 4.17, 4.19, 4.24 Nuclear Tests case (New Zealand v France) (1974) ICJ Reports 253 …. 4.17, 4.19, 4.24

O

Oberon Council v Australian Game Meats Pty Ltd [2002] NSWLEC 96 …. 20.4, 20.6 Ogle v Strickland (1987) 71 ALR 41 …. 19.15, 19.38 O’Halloran and Australian Fisheries Management Authority, Re [2002] AATA 160 …. 18.45 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 …. 20.120 Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC 262 …. 20.120 — v — [2005] HCA Trans 228 …. 4.26, 20.120 Olofsson v Minister for Primary Industries [2011] NSWLEC 137 …. 21.37 Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 …. 19.57 — v Whyalla Red Dust Action Group Inc (2006) 145 LGERA 415 …. 19.36 Onus v Alcoa of Australia Ltd (1981) 36 ALR 425 …. 19.1, 19.4, 19.7, 19.8, 19.9, 19.15, 19.20 Oposa v Secretary of State of the Department of Environment and Natural Resources (1994) 33 ILM 193 …. 8.76 Optus Networks Pty Ltd v Rockdale City Council (Optus) (2005) 130 LGERA 429 …. 10.16 Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189 …. 10.16 — v — (No 2) (1997) 95 LGERA 55 …. 21.38 — v Richmond River Council (1998) 96 LGERA 173; [1998] HCA 11 …. 21.23, 21.25, 21.27, 21.29, 21.33, 22.9 — v Richmond River Shire Council (1993) 82 LGERA 222 …. 7.11, 11.26 — v — (1994) 82 LGERA 236 …. 21.26 — v Rous Water [2011] NSWLEC 73 …. 10.18, 11.21, 11.23 — v — (No 2) [2012] NSWLEC 111 …. 10.18 Ostrowski v Palmer [2004] HCA 30 …. 20.80, 20.81 Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319 …. 2.70, 22.18 Overland Corner Station Pty Ltd v Gould [2010] SASC 61 …. 13.10 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon

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P Packham v Minister for Environment (1993) 80 LGERA 205 …. 7.21, 12.74, 22.53 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 …. 22.21 Page v Manningham City Council [2010] VSC 267 …. 20.3 Pallaras v Downer EDI Works Pty Ltd [2008] SAERDC 72 …. 15.27, 20.107 Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 …. 15.21, 15.26 Paltridge v District Council of Grant [2011] SAERDC 23 …. 8.56, 17.57 Pape v Federal Commissioner of Taxation [2009] HCA 23 …. 5.27 Paric v John Holland Constructions (1978) 62 ALR 85 …. 8.58 Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325 …. 14.5 — v — (2012) 205 FCR 415; [2012] FCAFC 94 …. 8.67, 14.5, 22.17 Parkes v Byron Shire Council [2004] NSWLEC 92 …. 17.57 Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 …. 7.16, 7.19, 8.40, 11.21, 11.22, 21.30, 21.32, 21.33, 22.49 Parramatta City Council v Hale (1982) 47 LGRA 319 …. 10.16, 20.44, 22.57, 22.63, 22.64, 22.68, 22.79 Partland v City of St Kilda (1989) 41 APA 178 …. 19.23 Paterson v Minister for the Environment and Heritage [2004] FMCA 924 …. 19.44 Path Line Australia Pty Ltd v Environment Protection Authority [2002] SASC 37 …. 11.60, 11.65

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 …. 21.6 Paul v Goulburn Murray Rural Water Corporation [2009] VCAT 970 …. 19.27 Peden Pty Ltd v Bortolazzo [2006] QCA 350 …. 3.20 Pennings v Selby (1997) 94 LGERA 1 …. 12.55 — v Vlak [2005] WASC 107 …. 14.61 Pennington v McGovern (1987) 45 SASR 27 …. 2.33 Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331 …. 13.32, 20.93, 20.96 People of the State of California v General Motors Corp (2007) WL 2726871 (N D Cal) …. 3.24 Perder Investments Pty Ltd v Elmer (1991) 23 ALD 545 …. 22.76 — v Lightowler (1990) 101 ALR 151 …. 22.76 Perorad Care Pty Ltd v Frankston City Council (2004) 140 LGERA 112 …. 22.3 Perre v Apand (1999) 198 CLR 180 …. 3.31 Perry v Attorney-General (NT) [2014] NTSC 17 …. 2.65 — v Hepburn Shire Council (2007) 154 LGERA 182; [2007] VCAT 1309 …. 9.38, 17.56 Pfeiler v Native Vegetation Council [2012] SASC 105 …. 22.30 Pfizer v European Commission T-13/99 …. 8.74 Phelps v Development Consent Authority [2012] NTCA 02 …. 10.3, 22.55 — v Western Mining Corporation Ltd (1978) 20 ALR 183 …. 19.38 Phillips v Greater Shepparton City Council (Red Dot) [2005] VCAT 653 …. 21.16 — v Hepburn Shire Council [2009] VCAT 351 …. 22.73 Phosphate Co-operative Co of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134 …. 15.22, 15.70, 15.71 Phosphate Resources Ltd v Minister for the Environment, Heritage and the

Arts (No 2) (2008) 162 LGERA 154 …. 6.61, 6.62, 14.18, 22.22, 22.60, 22.64, 22.77 Pidun v Dac & Struck & Minister of Agriculture, Food & Fisheries [2004] SAERDC 10 …. 8.53 Pipi Holdings Pty Ltd v City of Caloundra (2000) 111 LGERA 117 …. 22.42 Pitt v Environment Resources and Development Court (1995) 66 SASR 274 …. 19.57 Pittwater Council v A1 Professional Tree Recycling Pty Ltd [2008] NSWLEC 325 …. 22.11 — v Minister for Planning [2011] NSWLEC 162 …. 22.56, 22.56 — v Scahill [2009] NSWLEC 12 …. 13.34 Piva v Brinkworth (1992) 59 SASR 92 …. 13.12, 20.96 Plath v Chaffey [2009] NSWLEC 196 …. 14.38 — v Fletcher [2007] NSWLEC 596 …. 14.81 — v Glover [2010] NSWLEC 119 …. 12.76 — v Hunter Valley Property Management Pty Limited [2010] NSWLEC 264 …. 8.29 — v Knox [2007] NSWLEC 670 …. 12.76 — v O’Neill [2007] NSWLEC 553 …. 20.118 — v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 …. 7.29, 8.29, 14.81, 20.100, 20.106 — v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 …. 12.76 Plumb v Penrith City Council [2002] NSWLEC 223 …. 7.11, 11.25, 11.26, 11.35, 14.84 — v — (2003) 126 LGERA 109 …. 21.33 Pole v Stonnington City Council [1999] VCAT 13 …. 10.70 Port MacDonnell Professional Fisherman’s Association Inc v South Australia (1989) 88 ALR 12 …. 5.30 Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 …. 7.12 — v Sansom (2007) 156 LGERA 125 …. 22.9, 22.10

— v SS and LM Johnston Pty Ltd (2007) 152 LGERA 193 …. 13.1, 13.20, 13.32 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 …. 8.31, 8.63 Port Stephens Shire Council v Booth (2005) 148 LGERA 351 …. 3.43 — v Tellamist Pty Ltd (2004) 135 LGERA 98 …. 3.19, 21.21 Power v Sarina Shire Council [1999] QPEC 56 …. 18.78 Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377 …. 3.36, 16.25, 16.26, 16.43 Pride of Derby Angling Association v British Celanese Ltd [1952] 1 All ER 1326 …. 3.27 — v — [1953] Ch 149 …. 3.19, 3.21, 3.53 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 …. 11.14, 11.87, 11.89 — v — (1984) 53 LGRA 160 …. 11.87, 11.88, 11.106 Printz v Glenelg Shire Council [2010] VCAT 1975 …. 17.57 Proctor v Melton Shire Council [2003] VCAT 1520 …. 19.27 Professional Fishers Association Inc v Minister for Fisheries (2002) 120 LGERA 61 …. 11.23, 22.47 Progress & Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102 …. 10.48 Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 …. 10.27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 7.12, 22.79 Proprietors of Strata Plan No 14198 v Cowell (1991) Aust Torts Reports 81083 …. 3.20 Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 …. 2.32, 15.76 Proudman v Dayman (1941) 67 CLR 536 …. 20.76 Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274; [2006] NSWLEC 52 …. 8.66, 8.71, 14.98 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 ….

22.21 Pulp Mills case (Argentina v Uruguay) [2006] ICJ Reports 113 …. 4.16, 4.21 Pumpa v Goulburn-Murray Rural Water Corporation [2010] VSC 169 …. 3.46 Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419 …. 3.29, 3.30, 3.41, 3.42 Pupfan Pty Ltd v South Australia (2003) 131 LGERA 1; [2003] SASC 283 …. 11.60, 11.62

Q Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64 …. 20.123 Queensland v Commonwealth (1988) 77 ALR 291; 62 ALJR 143 …. 2.70, 5.14, 21.10 — v — (1989) 167 CLR 232 …. 22.18 Queensland Conservation Council Inc v Minister for Environment and Heritage [2003] FCA 1463 …. 19.44 — v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322; [2007] QCA 338 …. 17.55, 22.39 Queensland Construction Materials Pty Ltd v Redland City Council [2010] QCA 182 …. 10.34 — v — [2010] QCA 248 …. 21.25 Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193 …. 5.46, 5.47 Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 …. 3.21 Quinn v Regional Council of Goyder [2010] SAERDC 63 …. 17.57

R R v Amoedo and Dominguez (2006) 4 DCLR (NSW) 305 …. 20.120 — v (Beer (t/as Hammer Trout Farm) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233 …. 22.17 — v Boyle (District Court of Queensland, 17 December 2004) …. 20.99 — v Caltex Tanker Co (Aust) (unreported, County Court, Victoria, O’Shea J,

18 June 1993) …. 20.41 — v Carroll [2008] NSWCCA 218 …. 20.105 — v Chief Constable of Sussex; Ex parte International Trader’s Ferry Ltd [1998] UKHL 40 …. 22.72 — v City of Salisbury; Ex parte Burns Philp (1986) 60 LGRA 40 …. 19.11, 19.23 — v City of Sault Ste Marie (1978) 85 DLR (3d) 161 …. 20.71 — v Crabbe (1985) 156 CLR 464 …. 20.46 — v Davis; Ex parte Calvary Hospital Hobart Inc (1999) 103 LGERA 169 …. 22.38 — v Dempsey [2002] QCA 45 …. 20.98, 20.106 — v District Council of Berri (1984) 51 LGRA 409 …. 22.63 — v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 …. 22.27, 22.30 — v Mattrim Marine (District Court of Queensland, 20 June 2005) …. 15.126 — v Mayor of London ex parte Westminster City Council [2002] EWHC 2440 …. 2.46 — v Milford Haven Port Authority [2000] All ER (D) 352 …. 20.39 — v Moore [2001] QCA 431 …. 15.27, 15.28, 20.61, 20.99, 20.105, 20.113 — v Murphy (1990) 71 LGRA 1; 64 ALJR 593 …. 7.14, 11.1 — v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 …. 22.35 — v Phillips (1970) 125 CLR 93 …. 5.48 — v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd (2005) 138 LGERA 412 …. 21.20, 22.55 — v Resource Planning and Development Commission; Ex parte Aquatas Pty Ltd (1998) 100 LGERA 1 …. 8.45 — v Robison (1992) 62 A Crim R 374 …. 14.4 — v Ryan Benjamin Castle (Bone J, Local Court, Moruya, 8 July 2011) …. 20.82 — v Schembera [2008] QCA 266 …. 20.6, 20.88, 20.107 — v Secretary of State for Trade and Industry; Ex parte Duddridge [1996] 2

CMLR 361 …. 8.64 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 …. 22.63 — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 …. 22.17 — v Ward; Ex parte Brambles Holdings Ltd (1983) 34 SASR 269 …. 19.21 — v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383 …. 22.42 R (on the application of Edwards) v Environment Agency (No 2) [2007] Env LR 9 …. 22.35 R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29 …. 22.34, 22.35 R and S Krulow v Glamorgan Spring Bay Council [2011] TASRMPAT 147 …. 20.4, 22.49 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 …. 17.57, 18.56 Rainbow Warrior (New Zealand v France) (1990) 82 ILR 500 …. 4.5 Rajendran v Tonkin [2004] VSCA 43 …. 22.60 Rajski v Computer Manufacturers and Design Pty Ltd (1983) 2 NSWLR 443 …. 21.42 Ramholdt v Planning Panels Victoria (2004) 140 LGERA 273 …. 22.40 Randwick City Council v Fuller (1996) 90 LGERA 380 …. 21.6 Randwick Municipal Council v Henderson (1930) 10 LGR 18 …. 3.21 — v Manousaki (1988) 66 LGRA 330 …. 10.16, 22.67 — v Woodward (1983) 50 LGRA 55 …. 11.14 Rao v Canterbury City Council (2000) 112 LGERA 360 …. 13.33 Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88 …. 10.9, 22.40 Rashleigh v Environment Protection Authority (2005) 138 LGERA 310; [2005] ACTSC 18 …. 2.30, 2.31, 8.25 Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 …. 22.11 Ray Taylor Investments Pty Ltd v Kingborough Council [2012] TASRMPAT 014 …. 13.42

Read v Croydon Corporation [1938] 4 All ER 631 …. 19.8 Redland Shire Council v Bushcliff Pty Ltd (1996) 93 LGERA 107 …. 22.20 Reed v Qcoal Sonoma Pty Ltd [2014] QLAC 8 …. 22.9 Reef Cove Resort Pty Ltd v Cairns City Council [2007] QPEC 77 …. 11.43, 13.24, 18.56 Reeve v Hume City Council [2009] VCAT 65 …. 13.27, 13.38, 13.52 Reformulated Gasoline case (Brazil v USA) 35 ILM 603 (1996) …. 4.33, 4.36 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 …. 22.40 Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140 …. 22.47 Registrar, Environment, Resources & Development Court v Wandel (No 2) [2014] SAERDC 13 …. 20.122 Reid’s Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171 …. 21.41 Rentiers Pty Ltd v Native Vegetation Authority (1990) 71 LGRA 266 …. 13.13 RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc [2008] NSWLEC 1333 …. 11.88 Reservilt Pty Ltd v Maroochy Shire Council (2002) 123 LGERA 233 …. 11.42 Residential Tenancies Tribunal of NSW, Re; Ex parte Defence Housing Authority (1997) 71 ALJR 1254 …. 5.53 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323 …. 7.13, 10.20, 11.18, 11.19, 14.94, 21.34, 22.47, 22.78 Resourceco Pty Ltd v Environment Protection Authority [2007] SAERDC 31 …. 16.16 — v Harvey (2006) 154 LGERA 37 …. 20.110 — v — [2007] SASC 38 …. 20.106 Richard G Bejah Insurance & Financial Services Pty Ltd v Manning [2002] TASSC 36 …. 18.58, 22.55 Richardson v Forestry Commission (1987) 73 ALR 589 …. 21.7, 21.10 — v — [1988] HCA 10 …. 5.12, 5.15 Richmond River Council v Oshlack (1996) 91 LGERA 99 …. 21.25

Richter v Risby [1987] Tas R 36 …. 2.40 Ridge v Midland Railway Co (1888) 53 JP 55 …. 3.21 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347; [2009] NSWLEC 213 …. 13.54, 22.34, 22.56 Roach v Pittwater Council [2007] NSWLEC 607 …. 13.53, 14.98 Robert v City of Canada Bay Council [2008] NSWLEC 1406 …. 10.48 Roberts v Blue Mountains City Council [2012] NSWLEC 2 …. 10.16 Robinson v Western Australian Museum (1977) 138 CLR 327 …. 19.3, 19.7 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 …. 3.15, 3.20, 3.21 Rochford RDC v Port of London Authority [1914] 2 KB 916 …. 20.49 Rockhampton Regional Council v GKI Resort Pty Ltd [2013] QPEC 40 …. 10.36 Roe v Director General, Dept of Environment and Conservation (WA) [2011] WASCA 57 …. 10.42, 11.69 Ron C Dunkley & Associates v Blue Mountains City Council [2009] NSWLEC 1396 …. 10.23 Ronchi v Wellington Shire Council [2009] VCAT 1206 …. 17.57 Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 …. 7.28 Ross, Re (1913) 23 LCC 52 …. 13.63 Ross v State Rail Authority (NSW) (Unreported, LEC (NSW), No 40200, 1987) …. 21.13 Rosser v New South Wales Department of Primary Industries (2008) 157 LGERA 418 …. 20.65 Rouse v Minister of Fisheries [2003] NSWSC 700 …. 18.49 Rowe v Lindner [2006] SASC 176 …. 7.18, 7.29, 8.23, 8.39, 8.56, 9.4, 9.42, 18.15, 22.67 — v — (No 2) [2007] SASC 189 …. 8.66, 8.71 Rowley v Caloundra City Council [2008] QPEC 99 …. 13.32 Royal Automobile Club of Australia v Sydney City Council (1991) 74 LGRA

121 …. 7.18 Rozen v Macedon Ranges Shire Council [2007] VCAT 1814 …. 8.68 — v — [2009] VCAT 2746 …. 8.57, 8.67, 18.19 — v — [2010] VSC 583 …. 8.66, 8.71, 9.69, 22.57 Rue & Fanna v Leavy [2005] QDC 110 …. 14.46 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 …. 13.19 Rundle v Tweed Shire Council (unreported, LEC (NSW), 30 March 1989, No 40241) …. 21.13 — v — (1989) 68 LGRA 308 …. 11.22 Rushcutters Investments Pty Ltd v Water Board of New South Wales (1989) 68 LGRA 128 …. 3.16 Russell v Pennings (2001) 113 LGERA 216 …. 14.61 Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan (1999) 102 LGERA 123; [2002] HCA 54 …. 3.29, 3.32, 15.30, 19.51 Ryde City Council v Calleija (1998) 99 LGERA 360 …. 20.96 — v Echt (2000) 107 LGERA 317 …. 22.73

S Saeed v Minister for Immigration and Citizenship [2010] HCA 23 …. 2.67, 7.13 Salmal Constructions Pty Ltd v Richards (1998) 99 LGERA 423 …. 22.59 Sames v District Council of Mount Barker (2004) 132 LGERA 187 …. 9.30 Sampi v Western Australia [2005] FCA 777 …. 2.11 Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355 …. 10.26, 10.47, 10.48, 10.51, 11.36, 13.45 Save Little Beach Manly Foreshore Inc v Manly Council [2013] NSWLEC 155 …. 21.30, 21.40, 21.39, 21.41, 21.42 Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 …. 21.10, 21.14, 22.66 Save Our Street Inc v Settree (2006) 149 LGERA 30; [2006] NSWLEC 570 ….

2.66, 7.12, 22.71, 22.72 Save the Ridge Inc v Australian Capital Territory (2004) 133 LGERA 188 …. 7.18, 19.37 — v Commonwealth (2005) 142 LGERA 18; [2005] FCAFC 203 …. 5.50, 6.6, 6.7 — v National Capital Authority (2004) 134 LGERA 300 …. 7.18 Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 283 …. 22.53 — v — (1997) 95 LGERA 33 …. 9.48, 22.18, 22.31, 22.34, 22.50 — v — (1998) 105 LGERA 254 …. 21.27, 21.33 Schaap v Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd [2013] TASSC 17 …. 7.18 Schadband v Murrindindi Shire Council [2005] VCAT 1039 …. 19.27 Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 …. 11.14, 11.87, 11.88 Scharer v New South Wales [2001] NSWCA 360 …. 12.74 Schinkel v Bass Coast Shire Council [2009] VCAT 2644 …. 19.27 Schneiders v Queensland [2001] FCA 553 …. 12.14, 21.10 Schwarzenberg v Commonwealth [2009] VCC 1513 …. 14.5 Schwennesen v Minister for Environment and Resource Management [2010] QSC 81 …. 2.58 Scott-Whitehead v National Coal Board (1987) 53 P&CR 263 …. 3.29 Scriven v Sargent [2014] QCA 133 …. 2.22 Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242; 28 LGRA 50 …. 7.54, 10.9, 22.44 Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 …. 2.59 Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117 …. 8.68, 18.41, 22.17, 22.26, 22.61 Seaton v Mosman Municipal Council (1996) 93 LGERA 1 …. 21.17

Secretary of Dept of Primary Industry v Collins (1992) 106 ALR 351 …. 9.21 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014 …. 22.72 Seljanovski v Sutherland Shire Council [2003] NSWLEC 234 …. 9.73 Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257 …. 11.17 Sgualdino v Woodlands Enterprises Pty Ltd [2009] QPEC 30 …. 11.42 Shannon v Dalby Town Council [2004] QPEC 62 …. 8.68 Shannon Pacific v Minister for Planning [2007] NSWLEC 669 …. 10.3 Sharpe v Town of Vincent [2010] WASC 391 …. 22.67 Sharples v Minister for Local Government [2008] NSWLEC 67 …. 21.41, 21.42 — v — [2008] NSWLEC 328 …. 22.64 — v — [2010] NSWCA 36 …. 22.79 SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122 …. 18.19 — v Minister for Planning and Infrastructure [2013] NSWLEC 1032 …. 8.66 Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 …. 7.15 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 …. 22.11 Sherras v De Rutzen [1895] 1 QB 918 …. 20.22 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 …. 19.28, 19.57 Shire of Brookton v Water Corporation (2003) 133 LGERA 119 …. 3.35 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 …. 21.9 — v South Coast Concrete Crushing and Recycling Pty Ltd [2010] NSWLEC 80 …. 21.30 Shrimp/Turtle case 33 ILM 118 (1999) …. 4.5, 4.34, 4.36 Sidhom v Robinson (2007) 154 LGERA 169 …. 20.112 Sidney Harrison Pty Ltd v City of Tea Tree Gully (No 2) (2001) 112 LGERA 327 …. 22.22, 22.52

Sierra Club v Morton 405 US 727 (1972) …. 2.47 Silva v Ku-ring-gai Council [2009] NSWLEC 1060 …. 18.18 Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 …. 14.98 Simes v Minister for Environment and Conservation [2004] SASC 84 …. 2.28 Simmons v Esk Shire Council [2006] QPEC 101 …. 8.67 Simpson v Ballarat City Council [2012] VCAT 133 …. 7.21 — v — [2012] VCAT 1399 …. 8.57, 8.67 — v Department of Environment and Conservation [2011] WASC 206 …. 14.60 — v Office of Environment and Heritage [2014] NSWLEC 34 …. 14.39, 20.107 — v Wakool Shire Council [2012] NSWLEC 163 …. 10.9 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; 5 ALR 513 …. 19.17, 19.44, 21.18 — v Murphyores Inc Pty Ltd [1978] Qd R 239 …. 19.18 Sinnathamby v Purcell [2002] QPEC 65 …. 21.23 Sisters Wind Farm Pty Ltd v Moyne Shire Council [2010] VCAT 719 …. 17.57, 18.19 — v Moyne Shire Council [2012] VSC 324 …. 22.7 SITA Australia Pty Ltd v Greater Dandenong City Council (2007) 150 LGERA 266; [2007] VCAT 156 …. 7.17, 16.17 SJ Connelly CPP Pty Ltd v Ballina Shire Council [2010] NSWLEC 128 …. 11.18 Skye Environmental Services Pty Ltd v Frankston City Council [2004] VCAT 682 …. 8.67 Slack-Smith v Director General Department of Land and Water Conservation (2003) 132 LGERA 1 …. 15.91, 20.5 SLS Property Group Pty Ltd v Townsville City Council [2009] QCA 380 …. 22.47 SM Wicks v Tasman Council and Peacock Darcey & Anderson Pty Ltd; G Cousins v Tasman Council and Peacock Darcey & Anderson Pty Ltd; P

Leishman-Fenerty v Tasman Council and Peacock Darcey & Anderson Pty Ltd [2008] TASRMPAT 117 …. 18.58 Small v Woollahra Municipal Council [2008] NSWLEC 1239 …. 10.23 Smith v Hobsons Bay City Council [2010] VCAT 668 …. 2.46 Smith and West Australian Development Corporation, Re; Ex parte Rundle (1991) 5 WAR 295 …. 19.3 Smyth v Nambucca Shire Council (1999) 105 LGERA 65 …. 14.95 Smythe v Shire of Arapiles (1984) 16 APA 85 …. 3.20, 3.24, 3.54 Snowy Hydro Ltd v Metroll Victoria Pty Ltd [2007] VSC 188 …. 21.15 Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652 …. 21.31 — v — (No 2) [2011] NSWSC 1132 …. 21.31, 21.33 Sol Theo v Caboolture Shire Council (2001) QPELR 101 …. 8.57 Somerville v Dalby (1990) 69 LGRA 422 …. 22.34 Sorell Council v Tasmania (2004) 134 LGERA 59; [2004] TASSC 46 …. 9.41, 11.81 South Australia v O’Shea (1987) 163 CLR 378 …. 22.17, 22.38 — v Simionato [2005] SASC 412 …. 3.21, 3.35 — v Slipper (2004) 137 LGERA 374 …. 22.38, 22.40, 22.70 — v Tanner (1989) 166 CLR 161; [1989] HCA 3 …. 9.16, 22.53 South Australian Potato Company Pty Ltd v Minister for Sustainability, Environment and Conservation (No 2) [2014] SAERDC 50 …. 7.32 South Australian River Fishery Association v State of South Australia [2003] SASC 174 …. 2.33, 3.3 — v — [2003] SASC 174 …. 2.33 South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250 …. 8.27, 22.64, 22.77 South East Water Ltd v Transpacific Cleanaway Pty Ltd [2010] VSC 46 …. 3.46 South Sydney City Council v Paliflex Pty Ltd (2003) 129 LGERA 384 …. 5.46 Southern Bluefin Tuna cases Australia and New Zealand v Japan 39 ILM 1359

(2000) …. 4.23, 4.36 Southern Cross Marine Culture Pty Ltd v Sorell Council [2006] TASRMPAT 250 …. 18.58 Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management [2012] WASCA 79 …. 3.37 Southon v Beaumont [2008] NSWLEC 12 …. 20.5 — v Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292 …. 20.124 Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 …. 3.19 South-West Forest Defence Foundation Inc v Department of Conservation and Land Management (No 2) (1998) 72 ALJR 1008; [1998] HCA 35 …. 2.39, 21.25, 21.27 — v Lands and Forest Commission (1995) 86 LGERA 365 …. 11.70, 12.67, 21.20 Spencer v Australian Capital Territory [2007] NSWSC 303 …. 3.20 — v Commonwealth of Australia [2008] FCA 1256 …. 5.22, 5.35, 5.59, 13.4, 17.46 — v — [2009] FCAFC 38 …. 5.35, 13.4 — v — (2010) 241 CLR 118 …. 5.35, 13.4 — v — [2015] FCA 754 …. 5.34, 5.37, 13.4 — v New South Wales Minister for Climate Change, Environment and Water [2008] NSWSC 1059 …. 2.22, 13.4 Spreitzer v R (1991) 58 A Crim R 114 …. 14.4 Springer v Woollahra Municipal Council (2000) 108 LGERA 392 …. 9.43 Springhall v Kirner [1988] VR 159 …. 2.32 St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 421; [2007] TASSC 15 …. 7.13, 8.56, 9.40, 18.58, 22.59 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 …. 3.21 Stanton Dahl Architects v Penrith City Council [2009] NSWLEC 1204 …. 13.46 Starkey v South Australia [2011] SASCFC 164 …. 21.17, 21.18, 21.20, 22.35

Start v Pyrenees Shire Council [2006] VCAT 2599 …. 9.38 State Administrative Tribunal, Re; Ex parte McCourt [2007] WASCA 125 …. 19.54 State of North Carolina v Tennessee Valley Authority 615 F3d 291 (4th Cir 2010) …. 17.52 State of Victoria v Commonwealth of Australia (1996) 187 CLR 416 …. 5.13 State Planning Commission (WA) and Beggs; Ex parte Helena Valley/Boya Association Inc (1990) 2 WAR 422 …. 19.10 State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 …. 20.52 — v Blue Mountains City Council (1991) 72 LGRA 345 …. 20.71, 20.72 — v — (No 2) (1991) 73 LGRA 337 …. 20.51 — v Broken Hill Pty Co Ltd (No 1) (1991) 74 LGRA 351 …. 20.85 — v Bulli Trotting Club (1983) 51 LGRA 336 …. 15.93 — v Caltex Refining Co Pty Ltd (1991) 72 LGRA 212 …. 20.66 — v Hunt (1990) 72 LGRA 316 …. 20.71 — v Kelly R V (1991) 5 ACSR 607 …. 20.72, 20.88 — v New South Wales Sugar Milling Co-operative Ltd (1991) 73 LGRA 86 …. 20.71 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 …. 20.77, 20.78 Stephen Garrett v Dennis Charles Williams [2006] NSWLEC 785 …. 14.81 Stewart v City of Belmont [2013] WASC 366 …. 22.46 Stockdale v Alesios [1999] VSCA 128 …. 18.48 Stockwell v Victoria [2001] VSC 497 …. 3.20 Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954 …. 21.15 — v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 …. 10.70, 10.71 Stow v Mineral Holdings (1977) 14 ALR 497 …. 19.4 Strasburger Enterprises (Properties) Pty Ltd v Gold Coast City Council [2009]

QPEC 103 …. 11.54 Sunbay Developments Pty Ltd and Shire of Kalamund, Re (2006) 150 LGERA 116 …. 10.9 Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91 …. 2.70 Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 …. 11.23, 22.47 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 …. 10.4 Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106 …. 16.30, 22.60 Swift Australia Pty Ltd v Director of Environment Protection Authority [2011] TASRMPAT 064 …. 20.4 Sydney City Council v Paul Dainty Corp Pty Ltd [1984] 3 NSWLR 104 …. 7.19 Symons Nominees Pty Ltd v Roads and Traffic Authority of New South Wales [1991] Aust Torts Rep 68,675 …. 3.44 Szulc v Chief Executive Officer, Department of Environment and Conservation (No 4) [2012] WASCA 143 …. 13.30

T Taip v East Gippsland Shire Council [2010] VCAT 1222 …. 17.57 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 …. 2.71, 8.78, 9.38, 17.39, 17.56, 17.57 Tarkine National Coalition Incorporated v Alex Schaap Supreme Court of Tasmania file 49/2014 …. 19.33 — v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 …. 6.64 — v Minister for the Environment [2014] FCA 468 …. 6.21, 6.27, 6.62, 6.68, 8.54 — v — [2015] FCAFC 89 …. 6.62 Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443 …. 21.10 Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1995) 85

LGERA 296 …. 6.2, 19.32 — v Minister for Resources & Gunns (No 2) (1996) 90 LGERA 106 …. 6.2, 6.15, 22.20 — v Tasmania (2000) 109 LGERA 219 …. 7.21, 9.18, 12.67 Tasmanian Heritage Council v Cita Property Group Pty Ltd [2010] TASSC 68 …. 22.79 Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission Administering the National Parks & Wildlife Act 1974 (NSW) (Blue Cow case) [2013] TASSC 15 …. 22.34, 22.37 Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270; 42 ALR 51 …. 5.12, 6.2, 19.13 Tatarelli v Cicolella [2007] SASC 265 …. 20.112 Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; 1 All ER 1159 …. 3.24, 3.25 Tauschke v East Gippsland Shire Council [2009] VCAT 2231 …. 17.57 Taylor v Lanyon [2006] QDC 321 …. 20.112 — v Port Macquarie-Hastings Council [2010] NSWLEC 113 …. 13.47 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806 …. 21.9, 21.10, 21.13, 21.15 Telstra Corporation v Hepburn Shire Council [2005] VCAT 1099 …. 9.38 — v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 …. 4.45, 8.29, 8.31, 8.56, 8.57, 8.59, 8.66, 8.68, 8.71, 8.73, 8.74, 11.29 — v Pine Rivers Shire Council [2001] QPELR 350 …. 8.65, 8.74 Telstra Corp Ltd and Shire of Murray [2009] WASAT 117 …. 8.66, 8.71 Teoh v Hunters Hill Council [2008] NSWLEC 263 …. 17.56 — v — (No 3) [2009] NSWLEC 121 …. 21.26 Terminals Pty Ltd v Greater Geelong City Council [2005] VCAT 1988 …. 8.68 — v — [2011] VCAT 1209 …. 10.70 Terminate Tulla v Environment Protection Authority [2007] VCAT 2332 …. 21.6, 21.16

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 …. 22.67 Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage [2013] NSWLEC 198 …. 13.21, 20.5, 22.49 Terry Street Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 131 …. 16.28 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 20.55, 20.56 Tetley v Chitty [1986] 1 All ER 663 …. 3.21 Tetra Pak Manufacturing v Challenger Life Nominees [2013] NSWSC 349 …. 16.26 Thackeray v Shire of South Gippsland [2001] VCAT 739 …. 17.57 — v — [2001] VCAT 922 …. 11.58 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 156 LGERA 150 …. 22.9, 22.10 Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2005] QSC 364 …. 16.36 — v — [2006] QCA 50 …. 16.36 Thirteenth Beach Coast Watch Inc v Environment Protection Authority [2009] VSC 53 …. 15.88, 17.56, 19.22, 19.25 Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 3.29 — v Smiths Shiprepairers (North Shields) Ltd [1984] 1 All ER 881 …. 3.29 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 …. 19.10 Thorneloe v Filipowski (2001) 116 LGERA 56 …. 20.112 Thornton v Adelaide Hills Council (2006) 151 LGERA 1 …. 1.24, 11.3, 14.98 Tickner v Bropho (1993) 114 ALR 409 …. 22.74 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 …. 20.39, 20.51, 20.52 Tiger Plains Pastoral Co Pty Ltd v Mid Murray Council [2009] SAERDC 5 …. 13.8 Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211 …. 21.27, 21.33

— v — (1999) 46 NSWLR 55; 102 LGERA 52 …. 11.35, 14.94, 22.46, 22.47 Timbs v Shoalhaven City Council (2004) 132 LGERA 397 …. 3.35 Tinda Creek Spiritual and Environment Centre v Baulkham Hills Shire Council (1998) 100 LGERA 432 …. 21.41 Tipping v Eckersley (1855) 2 Kay & J 264 …. 3.21 Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 …. 11.18 Tonkin v Cooma-Monaro Shire Council (2006) 145 LGERA 48 …. 20.4, 20.7 Town of Mosman Park v Dalden Properties Pty Ltd (1986) 60 LGRA 9 …. 12.2 Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 55 LGRA 176 …. 22.67 Town Watch Inc v Grafton City Council (1997) 93 LGERA 401 …. 21.40 Townsville Port Authority v Max Locke, Registrar of Titles [2004] QCA 294 …. 3.9 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96 …. 15.84, 20.66 Trail Smelter Arbitration (US v Canada) (1939) 33 AJIL 182 …. 4.15, 4.17, 4.19, 4.28 — v — (1941) 35 AJIL 716 …. 4.28 Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 …. 22.72 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133; [1999] NSWCA 196 …. 11.22, 11.32, 22.31, 22.36, 22.56 Transurban City Link Ltd v Allan (1999) 105 LGERA 427 …. 19.10 Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70 …. 13.25, 14.89 Tremain v Pike [1969] 3 All ER 1303 …. 3.29 Trives v Hornsby Shire Council [2015] NSWCA 158 …. 22.30 Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder [2014] SAERDC 48 …. 17.57 Trustees of the Sisters of the Good Samaritan v Warringah Council [2011]

NSWLEC 1181 …. 14.97 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 …. 19.2, 19.3 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 …. 18.26, 22.74 Tucker v Fraser [1974] Qd R 147 …. 20.43, 20.76 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 …. 22.59, 22.79 Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238 …. 8.46, 8.65 Tuna/Dolphin 1 (Mexico v USA) 30 ILM 1594 (1991) …. 4.32 Tuna/Dolphin II 33 ILM 839 (1994) …. 4.32 Tuna/Dolphin III …. 4.37 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84 …. 13.21, 13.60 Tutton v Walter [1986] 3 WLR 797 …. 3.31 Twist v Randwick Municipal Council (1976) 136 CLR 106 …. 22.40

U Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd (2008) 160 LGERA 20; [2008] NSWLEC 185 …. 8.53, 22.56 — v Minister for Mineral Resources (2008) 161 LGERA 391 …. 7.12 UnChain St Kilda Inc v Port Phillip City Council [2009] VCAT 833 …. 22.73 Undervan Holdings Pty Ltd and Western Australian Planning Commission [2012] WASAT 49 …. 13.30 Unimin Pty Ltd v Commonwealth (1974) 22 FLR 299 …. 3.9 United States v Students Challenging Regulatory Agency Procedure (SCRAP) 412 US 669 (1973) …. 11.100 United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WTO Doc WT/DS381/R (US-Tuna III) 2011 …. 4.37 University of Melbourne v Minister for Planning [2011] VCAT 469 …. 8.38

Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64 …. 11.23 Urgenda Foundation v Dutch Government (Dutch Climate Case) C/09/456689 / HA ZA 13-1396 (2015) …. 2.46

V Valherie v Strata Corporation No 1841 [2004] SASC 170 …. 3.21 Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33 …. 10.26 Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209 …. 22.38 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 …. 2.6, 2.56, 3.21, 3.39, 3.44 Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 …. 9.53, 9.54 — v — (1999) 101 LGERA 297 …. 22.31, 22.40, 22.43 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366 …. 9.54, 11.23, 18.55 Vaw (Kurri Kurri) Pty Ltd v Scientific Committee (2002) 122 LGERA 231 …. 14.84 — v — (2003) 128 LGERA 419 …. 14.84, 14.87, 22.64 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647 …. 2.45 Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 95 LGERA 58 …. 5.46 Vic Roads v Nillumbik Shire Council [2002] VCAT 1003 …. 11.58 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 3.21 Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229 …. 19.28 Villawood Properties Pty Ltd v Greater Bendigo City Council [2005] VCAT 2703 …. 10.49 — v — (2005) 146 LGERA 117 …. 13.36, 13.38 Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council (No 2)

[2010] NSWLEC 252 …. 21.34 Vitality Care Pty Ltd v Director-General, Dept of Natural Resources [2006] NSWLEC 506 …. 9.4 Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 …. 2.65, 10.70 Vorrasi v Adelaide City Council [2010] SASC 25 …. 22.57

W WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 …. 14.61, 14.62, 14.98 Wagner v Transpacific Industries Pty Ltd [2008] SAERDC 66 …. 15.28 Wait and Australian Fisheries Management Authority, Re (2002) AATA 159 …. 18.45 Wakool Shire Council v Garrision Cattle Feeders Pty Ltd [2010] NSWLEC 199 …. 20.65 Walden v Hensler [1986] 2 Qd R 490 …. 14.66 — v — (1987) 163 CLR 561 …. 2.13, 3.6 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No 2) [2009] NSWLEC 177 …. 20.28 Wall v Doyle [2008] QPEC 23 …. 14.46, 14.50, 20.12 Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56 …. 18.56 Walsh v Ervin [1952] VLR 361 …. 3.25 — v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 …. 22.17, 22.49, 22.62, 22.65, 22.66 — v Stay and Play Australia Ltd; Ex parte Walsh [1992] 1 Qd R 321 …. 12.19 Walter v Selfe (1851) 4 De G & Sm 315; [1851] Eng R 335 …. 3.20 Ward v Williams (1955) 92 CLR 496 …. 15.91, 20.7 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 …. 8.33, 8.82 Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701 …. 3.43

Warren, Re (1990) 20 ALD 729 …. 9.21 Warren v ELCOM (NSW) (1990) 130 LGERA 565 …. 22.77 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335; 63 LGRA 361 …. 9.53, 21.6 Water Administration Ministerial Corp v Auburn Council [2000] NSWLEC 76 …. 9.74, 18.19 — v Mills (1999) 110 LGERA 371 …. 22.52 Water Corporation v Chief Executive Officer of The Department of Environment [2006] WASC 256 …. 13.30 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 …. 8.67 — v — [2015] WASCA 104 …. 22.17 WC & AC Morin Pty Ltd v Queensland Fisheries Management Authority [2000] QSC 169 …. 18.49 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 …. 10.24, 22.61, 22.64, 22.65, 22.72 Webb v Chung [2002] NSWLEC 135 …. 20.112 Webster v Caboolture Shire Council [2008] QPEC 82 …. 10.3 Weeroona Holdings Pty Ltd v Environment Protection Authority [2013] SAERDC 41 …. 2.59, 16.38 Wellfare v Sutherland Shire Council (1983) 49 LGRA 395 …. 11.17 Wellington v Surfcoast Shire Council (includes Summary) (Red Dot) [2011] VCAT 2317 …. 21.16 Wentworth v Woollahra Municipal Council (No 3) (1985) 59 ALJR 36 …. 19.45 West Australian Field and Game Association v Minister of State for Conservation and Land Management and Environment (1992) 8 WAR 64 …. 19.3 Western Australia v Bropho (1991) 74 LGRA 156 …. 22.38 — v Commonwealth (1995) 183 CLR 373 …. 2.10 — v Ward (2002) 191 ALR 1 …. 2.13, 2.14 Western Australian Land Authority (Landcorp) v Minister for Sustainability,

Environment, Water, Population and Communities [2012] FCA 226 …. 6.11, 22.2, 22.38 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 137 LGERA 232; [2004] HCA 63 …. 7.36, 10.9, 15.76, 22.75 Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283 …. 3.30, 17.53 Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244 …. 14.91 Westfield Ltd v Commissioner for Land Planning [2004] ACTSC 49 …. 19.11 Westlink Pty Ltd atf Westlink Industrial Trust v Lockyer Valley Regional Council (No 4) [2013] QPEC 35 …. 10.3 Weston Aluminium Pty Ltd v Environment Protection Authority (2006) 148 LGERA 439 …. 7.12 — v — (2007) 156 LGERA 283; [2007] HCA 50 …. 7.17 Whaling in the Antarctic: Australia v Japan (2014) 31 EPLJ 459 …. 4.27 Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107 …. 3.21 White v Patterson [2009] QCA 320 …. 12.19 — and Australian Fisheries Management Authority (2005) AATA 174 …. 18.45 Whitehouse v Remme (1988) 64 LGRA 375 …. 21.6 Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011] FCA 175 …. 21.25 — v — (No 9) [2011] FCA 661 …. 21.24, 21.25 Wik Peoples v Queensland (1996) 187 CLR 1 …. 2.8 Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 …. 2.39, 6.9, 6.11, 9.10, 18.73, 19.44, 21.27, 21.33, 22.40, 22.70 Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 …. 22.40, 22.43, 22.45 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736 …. 6.18, 17.37, 17.55

Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts, Re [2008] AATA 717 …. 8.53, 14.6 Wilkie v Blacktown City Council (2002) 121 LGERA 444 …. 20.50 Williams v Commonwealth [2012] HCA 23 …. 5.27 — v — [2014] HCA 23 …. 5.27 — v Director-General, Department of Environment and Conservation [2004] NSWLEC 613 …. 22.40, 22.44 — v — (2005) 138 LGERA 442 …. 22.34, 22.37 — v Director General of National Parks and Wildlife Service [2002] NSWLEC 235 …. 21.9 — v Homestake Australia Ltd (2002) 119 LGERA 55; [2002] NSWLEC 5 …. 21.9, 22.11 — v — [2002] NSWLEC 155 …. 21.9 — v Minister for Planning [2009] NSWLEC 5 …. 11.88, 22.64, 22.66 — v — (No 2) [2011] NSWLEC 62 …. 8.34 — v Pardoe (2003) 132 LGERA 54 …. 21.41 Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 …. 10.27 — v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19 …. 2.52, 7.21, 12.74 — v Revelas (2004) 140 LGERA 348 …. 20.80 — v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 …. 22.11 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 …. 7.13 Window v Phosphate Co-operative Co of Aust Ltd [1983] 2 VR 287 …. 20.32, 20.33 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 …. 10.27 Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 …. 10.4, 13.32 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 …. 22.21

Winkworth v McCallum (No 2) [2008] SAERDC 80 …. 14.52 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 …. 10.9, 21.17, 22.55 Wiseowl Investments Pty Ltd and Shire of Busselton [2010] WASAT 150 …. 8.56, 8.74 Witheyman v Simpson [2009] QCA 388 …. 13.24 WJ Manning and The Friends of Four Mile Creek Bushcare Group Inc v Break O’Day Council and Morris Nunn & Associates obo R Bejah [2006] TASRMPAT 26 …. 18.58 Wollongong City Council v Australian Iron and Steel Pty Ltd [1988] NSWLEC 67 …. 16.16 — v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146 …. 22.11 — v Richardson (1989) 67 LGRA 423 …. 3.24 Woo v Campbelltown City Council [2008] SAERDC 25 …. 8.68 Wood v Sutcliffe (1851) 2 Sim NS 163 …. 3.27 Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710 …. 7.21, 7.22, 12.74, 22.53 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; 136 LGERA 288 …. 22.30, 22.52 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 …. 5.48 WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 …. 16.43 Wright & Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 …. 20.50 Wygiren v Kiama Municipal Council [2008] NSWLEC 1233 …. 8.40 Wyong Shire Council v Hughes (2000) 106 LGERA 228 …. 20.66 — v MCC Energy Pty Ltd [2005] NSWCA 86 …. 22.72, 22.77 — v Shirt (1980) 60 LGRA 106 …. 3.37

X Xstrata Coal Qld Pty Ltd, Re [2007] QLRT 33 …. 17.56

Xstrata Coal Qld Pty Ltd v Friends of the Earth, Brisbane Co-Op Ltd [2012] QLC 13 …. 2.72, 8.77, 11.49, 17.56 — v — [2012] QLC 13 …. 8.53, 8.56, 8.65, 8.74

Y Yallingup Residents Association Inc v State Administrative Tribunal (2006) 148 LGERA 132 …. 10.70, 22.40 Yanner v Eaton (1999) 105 LGERA 71 …. 2.13, 2.14, 3.8 Yarra Ranges Shire Council v Australian Native Landscapes [2008] VCAT 2342 …. 16.15 Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 …. 19.12 York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391 …. 3.24, 3.44 Young v Bankier Distillery; Almhirst v Spencer (1884) 14 LTOS 433 …. 3.21 — v Corporation of City of Whyalla [2009] SASC 314 …. 16.16 — v Environment Protection Authority [2009] VCAT 564 …. 19.58 — v Northern Territory (1992) 107 FLR 264 …. 3.29 Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 …. 6.10, 6.18, 19.44 Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122 …. 19.11

Z Zapirain and Minister for the Environment, Heritage and the Arts [2008] AATA 1047 …. 14.5 Zhang v Canterbury City Council (2001) 115 LGERA 373 …. 22.63, 22.65

Table of Statutes References are to paragraph numbers

Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 5.28, 18.68, 22.44 ss 23A–23C …. 18.68 Aboriginal Land Rights (Northern Territory) Act 1976 …. 2.15 Acts Interpretation Act 1901 s 15AA …. 2.65 s 15AB …. 7.15 s 15AB(2)(d) …. 4.44 Administrative Appeals Tribunal Act 1975 …. 2.72 Pt 4 Div 3 …. 22.13 Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) …. 19.16, 19.28, 19.31, 19.32, 19.43, 22.19, 22.20, 22.21 s 3(4) …. 19.20 s 5 …. 19.4, 19.15, 19.31 s 16 …. 22.19 Sch 1 …. 22.19 Agricultural and Veterinary Chemicals (Administration) Act 1992 s 69C …. 15.135 Agricultural and Veterinary Chemicals (Administration) Regulations 1995 reg 1.3 …. 15.135 reg 3.05 …. 15.135 Airports Act 1996 …. 5.51, 7.19

Airports (Environment Protection) Regulations 1997 …. 5.51 Antarctic Marine Living Resources Conservation Act 1981 …. 5.12 Antarctic Mining Prohibition Act 1991 …. 5.5, 5.12 Antarctic Treaty (Environment Protection) Act 1980 …. 5.12, 7.19, Pt D.8, 12.33, 14.10 s 7C …. 14.10 s 10 …. 14.10 s 10(1)(c) …. 14.10 s 19A …. 12.33 s 19B …. 12.33 Antarctic Treaty (Environment Protection) (Environmental Impact Assessment) Regulations 1993 cl 8 …. 9.72 Arts, Environment and Territories Legislation Amendment Act 1992 …. 5.22 Atomic Energy Act 1953 …. 15.130, 15.131, 18.67 Australian and Overseas Telecommunications Corporation Act 1991 s 33 …. 5.47 Australian Capital Territory (Self-Government) Act 1988 …. 5.39 s 22 …. 5.1 Sch 4 …. 5.1 Australian Heritage Council Act 2003 …. 5.63 s 30 …. 19.12 Australian Maritime Safety Authority Act 1990 s 48 …. 15.121 Australian Nuclear Science and Technology Organisation Act 1987 …. 18.67 s 4 …. 18.67 s 7A …. 5.51 Australian Radiation and Protection and Nuclear Safety Act 1998 ….

15.131 Biosecurity Act 2015 …. 4.39, 5.5, 5.12, 5.45, 14.8, 14.9, 15.139 Ch 3 …. 5.45, 14.8 Ch 5 …. 4.39 Ch 6 …. 4.39, 5.45, 14.8 s 5 …. 4.39, 5.45, 14.8 s 24 …. 5.5 s 25 …. 4.39, 5.45 s 26 …. 4.39, 5.45 s 28 …. 5.45 s 166 …. 4.39, 5.45, 14.8 s 270 …. 15.139 ss 271–28 …. 15.139 ss 285–290 …. 15.139 ss 291–296 …. 15.139 s 298 …. 15.139 s 299 …. 15.139 s 302 …. 15.139 s 303 …. 15.139 s 304 …. 15.139 s 305 …. 15.139 Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 Sch 1 …. 4.39 Clean Energy Act 2011 …. 5.12, 5.24 Clean Energy (Fuel Tax Legislation Amendment) Act 2011 …. 5.23 Coastal Waters (Northern Territory Powers) Act 1980 …. 5.29 Coastal Waters (Northern Territory Title) Act 1980 …. 5.29 Coastal Waters (State Powers) Act 1980 …. 5.29, 5.31

Coastal Waters (State Title) Act 1980 …. 5.29 s 4(3) …. 12.18 Code of Practice for the Near-Surface Disposal of Radioactive Waste in Australia 1992 …. 15.132 Code of Practice on Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing 2005 …. 15.132 cl 2.3.1 …. 15.132 cl 3.4.5 …. 15.132 cl 3.8 …. 15.132 Commonwealth of Australia Constitution Act 1901 …. 2.28, 2.45, 2.46, 2.60, 4.44, 5.1, 5.2, 5.3, 5.27, 5.39, 18.48 s 51 …. 5.1, 5.3, 5.6, 5.31 s 51(i) …. 5.3, 5.4, 5.8, 14.2 s 51(ii) …. 5.3, 5.21 s 51(vi) …. 5.38 s 51(ix) …. 5.3 s 51(x) …. 5.3, 5.29, 5.31 s 51(xi) …. 5.38 s 51(xv) …. 5.38 s 51(xx) …. 5.3, 5.16, 5.17, 5.19 s 51(xxvi) …. 5.3, 5.28 s 51(xxix) …. 5.3, 5.11 s 51(xxx) …. 5.38 s 51(xxxi) …. 2.28, 2.30, 5.32, 5.35, 5.36, 18.48 s 51(xxxvi) …. 5.36 s 51(xxxvii) …. 5.38 s 51(xxxviii) …. 5.30 s 51(xxxix) …. 5.38 s 52 …. 5.2, 5.39, 5.46, 5.48, 5.53

s 81 …. 5.27 ss 81–83 …. 5.21 s 90 …. 5.2, 5.39, 5.40, 5.43 s 92 …. 4.40, 5.10, 5.39, 5.42, 5.43, 5.45, 14.3, 14.7 s 96 …. 5.5, 5.21, 5.22, 5.36 s 100 …. 5.1 s 109 …. 2.10, 5.3, 5.8, 5.39, 5.49, 5.53, 7.19 s 122 …. 5.5 Commonwealth Places (Application of Laws) Act 1970 …. 5.48, 15.15 s 4 …. 5.48 s 4(2)(a) …. 5.46 s 4(3) …. 5.48 ss 12–15 …. 5.46 Commonwealth Places (Application of Laws) Regulation 2014 …. 5.48 Comprehensive Nuclear Test-Ban Treaty Act 1998 …. 5.38 Corporations Act 2001 s 180 …. 20.71 s 731 …. 20.71 Criminal Code Act 1995 …. 20.58, 20.71, 20.76 Div 5 …. 20.44 Div 9 …. 20.76 Div 10 …. 20.76 Pt 5.3 …. 2.40 s 5.2 …. 20.37 s 5.5 …. 12.19 s 12.2 …. 20.58 s 12.3 …. 20.58, 20.71 s 12.3(2) …. 20.58

s 12.4 …. 20.58 s 12.5 …. 20.71, 20.85 s 12.5(2) …. 20.73 Customs Act 1901 …. 5.4, 14.6 Customs (Prohibited Exports) Regulations 1958 …. 5.4, 14.6 Sch 3 …. 14.6 Sch 3A …. 14.6 Sch 4 …. 14.6 Customs (Prohibited Import) Regulation …. 14.6 Customs Tariff Amendment Act (No 2) 2002 …. 5.23 Customs Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 …. 5.23 Defence Act 1903 s 122A …. 5.51 Endangered Species Protection Act 1992 (ESPA) …. 14.3 s 27 …. 8.37 Sch 1 …. 14.15 Sch 2 …. 14.15 Sch 3 …. 14.16, 14.24 Energy Efficiency Opportunities Act 2006 …. 5.20 Energy Grants and Other Legislation Amendment (Ethanol and Biodiesel) Act 2015 …. 5.23 Energy Grants (Cleaner Fuels) Scheme Act 2004 …. 5.23, 15.1 Environment (Financial Assistance) Act 1977 …. 5.22 Environment (Impact of Proposals) Act 1974 (EPIP Act) …. 9.10, 11.57 Environment Protection (Alligator Rivers Region) Act 1978 …. 18.68 ss 5–5B …. 18.68 Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) …. 2.38, 4.28, 4.44, 5.5, 5.12, 5.28, 5.30, 5.37, 5.65, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.14, 6.16, 6.17, 6.19, 6.21, 6.24, 6.25, 6.27, 6.32, 6.33, 6.34, 6.38,

6.40, 6.43, 6.46, 6.48, 6.62, 6.74, 6.75, 7.4, 7.11, 7.35, 8.37, 8.66, 9.23, 9.28, 9.63, 11.1, 11.4, Pt D.3, Pt D.6, 12.8, 13.12, 13.35, 13.37, 13.62, 14.3, 14.6, 14.12, 14.15, 14.18, 14.20, 14.22, 14.23, 14.28, 14.29, 14.36, 15.131, 18.5, 18.41, 18.65, 18.66, 18.68, 19.18, 19.43, 19.44, 20.8, 20.13, 20.14, 20.19, 20.87, 21.8, 22.2, 22.54 Ch 4 …. 6.23 Ch 5A …. 6.5 Ch 5B …. 6.5, 18.41 Ch 6 …. 5.65 Div 3 …. 6.5 Pt 3 …. 6.13, 6.18, 6.19, 6.28, 6.35, 6.42, 6.45, 6.46, 6.47, 6.62, 6.69, 6.73, 12.61, 22.54 Pt 3 Div 1 Subdiv E …. 15.130, 15.131 Pt 4A …. 11.47 Pt 7 Div 3 …. 22.2 Pt 8 …. 6.28 Pt 9 …. 6.28, 6.35, 6.37, 6.43, 6.49, 8.47, 12.17, 12.24 Pt 10 …. 6.39, 18.41 Pt 10 Div 2 …. 6.44 Pt 13 …. 6.5, 18.41 Pt 13 Div 3 …. 6.5, 7.7 Pt 13 Div 4 …. 6.5 Pt 13A …. 5.8, 6.5, 14.4, 14.5, 18.41 Pt 15 …. 7.35 Pt 15 Div 1A …. 6.5 Pt 15 Div 3A …. 6.5 s 2A …. 6.49 s 3 …. 7.22, 12.31 s 3A …. 6.62, 8.19, 8.35, 8.79 s 6 …. 12.59

s 5(5) …. 6.5 s 9 …. 7.19 s 10 …. 5.7, 5.50, 6.24, 7.19 ss 11–25 …. 6.8 s 12 …. 6.15, 6.19, 12.14 s 12(3) …. 12.12 s 13 …. 6.5 s 13(1) …. 12.12 s 13(2) …. 12.12 s 14 …. 5.14, 12.11 s 14(1) …. 12.12 s 14(2)–(4) …. 12.12 s 14(6) …. 12.13 s 14(7) …. 12.13 s 15 …. 12.13 s 15A …. 12.14 s 15B …. 6.5, 6.14 s 15C …. 6.14 s 16 …. 12.23 s 16(1) …. 20.114 s 17 …. 6.5 s 17(1) …. 12.22 s 17(2) …. 12.22 s 17A …. 12.22 s 17A(2)–(4) …. 12.22 s 17A(6) …. 12.22 s 17A(7) …. 12.22 s 17B …. 12.23

s 18 …. 6.5, 14.18, 20.14 s 18A …. 14.19, 20.14, 20.39 s 18A(4) …. 14.19 s 19 …. 14.20 s 19(3)(b) …. 14.20 s 20 …. 6.5, 12.61, 14.28 s 20(2)(c) …. 14.20 s 20A …. 14.28 s 20A(4)(c) …. 14.20 s 21 …. 12.61, 15.131 ss 21–22A …. 15.131, 18.68 s 22 …. 6.5, 15.131, 18.68 s 22A …. 15.131 s 24 …. 4.27, 6.5, 12.26, 12.57, 12.58 s 24B …. 6.5 s 24C …. 6.5 s 24D …. 6.5 s 24E …. 6.5 s 25(1) …. 6.30 s 25A …. 6.8 s 25A(1) …. 6.5 s 25AA …. 6.8, 6.16 ss 26–27 …. 6.8 s 27 …. 6.5, 12.59 s 28 …. 6.6, 6.8 s 28(3) …. 6.46 s 28(4) …. 6.46 s 28(5) …. 6.46

s 28A …. 6.8 s 28AA …. 6.8 s 28AB …. 6.8, 6.16 s 29 …. 12.60 ss 29–31 …. 6.46 s 32 …. 6.46 s 32(c) …. 6.49 s 33 …. 6.35, 6.42, 6.46, 6.49, 7.35, 12.16, 12.23 s 33(2) …. 6.49 s 33(3) …. 6.35 s 33(4)–(8) …. 6.35 s 34 …. 6.35 s 34A …. 6.36 s 34B …. 12.16 ss 34B–34E …. 6.36 s 34C …. 12.23 s 35 …. 6.35 s 37 …. 6.46, 12.60 ss 37–37L …. 6.36 s 37A …. 6.43, 6.46 s 37M …. 6.37, 6.43, 6.46 s 38 …. 6.38, 11.2, 18.72, 18.74, 18.75 ss 38–42 …. 6.38, 6.46 ss 40–42 …. 18.72 s 42 …. 11.2, 12.61 s 43 …. 6.46, 12.18, 12.61 s 43A …. 6.46 s 43B …. 6.46

s 44 …. 6.26, 6.27 s 45 …. 6.26 s 46 …. 6.28, 6.42, 12.17, 12.24, 12.61 s 47 …. 6.32, 12.61 s 47(4) …. 6.32, 6.60 s 48 …. 6.26, 12.61 s 48A(1) …. 6.28 s 48A(2) …. 6.28 s 48A(3) …. 6.28 s 49 …. 6.26 s 49A …. 6.30 s 50 …. 6.26 ss 51–54 …. 6.30 s 54 …. 12.61 s 55 …. 6.30, 12.61 s 56 …. 6.30, 12.61 s 57 …. 12.61 ss 57–64 …. 6.31 s 65 …. 6.31 s 65A …. 6.31 s 67 …. 6.8, 6.13, 6.19, 6.22 s 67A …. 6.8 s 68 …. 6.9, 11.6 s 68A …. 6.9 s 69 …. 6.9, 11.6 s 70 …. 6.9, 11.6 s 71 …. 6.9, 11.6 s 72(3) …. 6.43

s 74(1) …. 6.12 s 74(1A) …. 6.12 s 74(1B) …. 6.12 s 74(2) …. 6.12 s 74(3) …. 6.12, 6.19, 11.6 s 74(3A) …. 6.12 s 74(3B) …. 6.12 s 74A …. 6.7, 6.10, 11.6 s 74AA …. 6.11, 11.11 s 74B …. 6.19 s 74C …. 6.19 s 74D …. 6.19 s 75 …. 6.13, 6.15, 6.18, 11.8 s 75(1) …. 6.13 s 75(2) …. 6.19 s 75(2)(b) …. 14.20 s 75(3)–(7) …. 6.22 s 76 …. 6.19 s 77(1) …. 6.22 s 77(1)(b) …. 6.22 s 77(2) …. 6.22 s 77(4) …. 6.22 s 77A …. 6.19, 6.46 s 78 …. 6.11, 6.20 s 78(5)–(7) …. 6.22 ss 78A–78C …. 6.10 s 79 …. 6.20 s 82 …. 6.21, 6.28, 6.47

s 83 …. 6.28, 6.32, 6.46 s 84 …. 6.37, 6.46, 11.2 s 84(3) …. 6.37, 6.60 s 86 …. 6.50 s 87 …. 6.42, 7.35, 8.47, 9.23 s 87(1) …. 6.47 s 87(2) …. 6.50 s 87(3) …. 6.50 s 87(4) …. 6.52, 6.60 s 87(4A) …. 6.53 s 87(5) …. 6.54 s 87(6) …. 6.50 s 88 …. 6.50, 6.51 s 88(4) …. 6.51 s 88(5) …. 6.51 s 89 …. 6.51 s 91 …. 6.51 s 91(2) …. 6.51 s 93(2) …. 6.53 s 93(3)(a) …. 6.53 s 93(3)(b) …. 6.53 s 93(4) …. 6.53 s 93(5) …. 6.53 s 95 …. 6.54 s 95A …. 6.54 s 95B(1) …. 6.54 s 95B(2) …. 6.54 s 95C …. 6.54

s 96A …. 11.13 s 96A(1) …. 6.55 s 96A(3) …. 6.55 s 96A(4) …. 6.55 s 96B …. 6.55 s 97 …. 6.55 s 97(3) …. 6.47, 6.55 s 97(3)(b) …. 6.55 s 97(5) …. 6.55 s 98(1) …. 6.55 s 98(3) …. 6.55 s 99 …. 6.55, 12.39 s 100 …. 6.55 s 101A …. 11.13 ss 102–105 …. 6.56 s 102(3) …. 6.47 s 107 …. 11.12 s 107(1) …. 6.57 s 107(3)–(5) …. 6.57 s 107(4) …. 6.47 s 108 …. 6.57 s 109 …. 6.57, 14.36 s 110 …. 6.57 s 111A …. 13.42 s 111S …. 13.42 s 122 …. 6.57 s 130 …. 6.60, 6.61 s 130(1) …. 6.61, 22.54

s 130(1B) …. 6.60 s 130(2) …. 6.60 s 130(3) …. 6.60 s 130(4) …. 6.60 s 130(5) …. 6.60 s 131(1)(a) …. 6.60 s 131(2)(b) …. 6.60 s 131A …. 6.60 s 131AA …. 6.60 s 131AA(7) …. 22.40 s 132 …. 6.60 s 132A …. 6.60 s 133 …. 6.60, 22.54 s 134 …. 6.60, 6.62, 6.67 s 134(1) …. 15.131 s 134(2) …. 6.69, 15.131 s 134(3) …. 6.70, 15.131 s 134(3)(d)–(f) …. 6.72, 11.94 s 134(3)(e) …. 15.131 s 134(3)(f) …. 15.131 s 134(3)(g) …. 15.131 s 134(4) …. 6.70 s 134(4)(a) …. 6.67, 6.68, 6.70, 22.46 s 134(5) …. 6.70 s 136 …. 6.62, 8.21, 8.35, 11.14 ss 136–140A …. 6.62 s 136(2–4) …. 6.62 s 136(5) …. 6.62, 7.33

s 137 …. 12.16 ss 137–140 …. 6.64 ss 137–140A …. 6.69 s 139(1) …. 6.64 s 139(1)(b) …. 14.22 s 140A …. 18.68 s 142 …. 6.73 s 142A …. 6.73 s 142A(3) …. 6.73 s 142B …. 6.73 ss 143–145A …. 6.65 s 146 …. 6.41, 6.42, 6.59, 7.35, 9.19, 9.23 ss 146A–146M …. 6.42 s 146B …. 6.43 s 146D …. 6.43 ss 146F–146M …. 6.43 s 146M …. 18.68 s 148 …. 9.19 s 153 …. 6.44 s 156 …. 6.51 s 156A …. 6.11 s 156B …. 6.11 s 156D …. 6.11 s 158 …. 6.46 s 158A …. 6.19, 6.60 ss 159–164 …. 6.46, 6.58 s 166 …. 6.59 s 167 …. 6.59

s 168 …. 6.59 s 169 …. 6.59 s 170 …. 6.59 s 170C …. 6.9 s 170C(3) …. 6.9 s 172 …. 12.10 s 173 …. 12.10 s 176 …. 6.43, 9.63, 12.9 s 177 …. 9.63 s 178 …. 14.12 s 178(2) …. 14.14 s 178(4) …. 14.14 s 179 …. 14.12 s 180 …. 14.12 s 181 …. 14.13 s 181(3) …. 14.14 s 181(4) …. 14.14 s 182 …. 14.13 s 183 …. 14.16 ss 184–187 …. 14.14 s 186(2) …. 14.14 s 187(2) …. 14.14 s 188 …. 14.16 s 188(3) …. 14.16 s 188(4) …. 14.16 s 189 …. 14.14, 14.16 s 190 …. 14.14 s 192 …. 14.14

s 193 …. 141.14 s 194 …. 14.17 s 194C …. 14.17 s 194D …. 14.17 s 194E …. 14.17 s 194E(1) …. 14.17 ss 194G–194J …. 14.17 ss 194K–194M …. 14.17 s 194N …. 14.17 s 194P …. 14.17 s 194Q …. 14.17 s 195 …. 14.19 ss 196–196E …. 14.19, 20.42 s 196B …. 14.18 s 196F …. 14.18 s 197 …. 14.20 s 199 …. 14.20 s 200 …. 14.20 ss 200–207 …. 14.20 s 201 …. 14.20 s 207A …. 14.21 s 207B …. 14.21 s 207C …. 14.21 s 209 …. Pt D.7, 14.28 s 210 …. 14.28 s 211 …. 14.18 ss 211–211E …. 14.28, 20.42 ss 211–211F …. 14.30

s 211F …. 14.18 s 212 …. 14.28 s 213 …. 14.28 s 214 …. 14.28 ss 215–222 …. 14.28 s 224 …. 14.29 s 225 …. 4.27, 6.6, 14.29 s 226 …. 4.27, 14.29 s 227 …. 14.29 s 228A …. 14.29 ss 229–229D …. 14.19 ss 229–232 …. 4.27 ss 229–244 …. 14.29 ss 229A–229C …. 20.42 s 231(aa)(ii) …. 14.29 s 231(h) …. 14.29 s 236 …. 4.27, 14.29 s 245 …. 14.29 s 246 …. 14.29 ss 249–252 …. 14.30 ss 253–265 …. 14.30 ss 254–254F …. 14.30 s 254 …. 14.18, 20.42 s 254A …. 20.42 s 254F …. 14.18 s 266B(2) …. 6.64, 14.14 s 268 …. 14.23, 14.24 s 269 …. 9.20, 14.23, 14.24

s 269AA …. 14.22 s 269A …. 14.22 s 269A(3) …. 14.22 s 269A(4) …. 14.22 s 269A(5) …. 14.22 s 269A(7) …. 14.22 s 270 …. 14.22 s 270(1) …. 14.22 s 270A(1) …. 14.24 s 270A(2) …. 14.24 s 270A(3)–(7) …. 14.24 s 270A(8) …. 14.24 s 270A(9) …. 14.24 s 270B …. 14.24 s 271 …. 14.24 s 271(1) …. 14.22, 14.24 s 272 …. 14.32 s 273(4) …. 14.24 s 273(5) …. 14.24 ss 274–284 …. 14.24 s 277 …. 14.22 s 279 …. 14.23 s 280 …. 14.23 s 283A …. 14.25 s 285 …. 9.20, 14.22, 14.31 s 286 …. 9.21, 14.31 ss 287–298 …. 14.31 s 287(1) …. 14.31

s 288 …. 14.32 s 299 …. 14.31 s 301A …. 14.32 s 303A …. 14.20 s 303CC …. 14.5 s 303CD …. 14.5 s 303CG …. 14.5, 22.3 s 303DA …. 14.5 s 303DD …. 14.5 s 303DG …. 14.5 s 303EC …. 14.5 s 303EC(3) …. 14.6 s 303EC(5) …. 14.6 ss 303ED–303EJ s 303EK …. 14.5 s 303EN …. 14.5 ss 303FA–303FU …. 14.5 ss 303FN–303FP …. 14.6 s 303FN(3) …. 18.41 s 303GB …. 14.5 s 303GN …. 14.5 s 303GP …. 14.5 s 304 …. 12.39 s 305 …. 6.43, 7.47, 12.39 s 305(2) …. 12.39 s 305(3) …. 12.39 s 305(6) …. 12.39 s 306 …. 12.39

s 306A …. 6.37, 6.43, 12.39 s 306A(2) …. 12.39 s 307 …. 7.46, 12.39 s 307A …. 12.39 s 308 …. 12.39 s 308(4)–(8) …. 12.39 s 309 …. 12.39 s 310 …. 12.39 ss 311–312 …. 12.39 s 314 …. 12.12 s 314(3) …. 12.12 s 315 …. 12.13 s 316(1) …. 12.17 s 316(3) …. 9.17, 12.17 s 316(4) …. 12.17 s 316(6) …. 12.17 s 316(7) …. 12.17 s 318 …. 9.21, 12.17 s 319 …. 12.17 s 320 …. 12.17 s 321 …. 12.17 s 321(2) …. 12.17 s 322 …. 12.17 s 323 …. 9.17, 12.17 s 324 …. 12.17 ss 324A–324ZC …. 12.38 s 324X(2) …. 12.38 s 324ZB …. 5.27

s 326 …. 12.22 s 326(3) …. 12.22 s 327 …. 12.22 ss 328–336 …. 12.24 s 328(3) …. 9.17 s 330 …. 9.21 s 335 …. 12.24 s 337 …. 6.5, 12.25 s 338 …. 9.17, 12.25 s 339 …. 12.25 s 340 …. 9.17, 12.25 s 341 …. 12.25 s 341C …. 12.35 s 341D …. 12.35, 12.36 s 341G …. 12.35 s 341H …. 12.35 s 341J …. 12.35 s 341JA …. 12.35 s 341JB …. 12.35 s 341JC …. 12.35 s 341JD …. 12.35 s 341JE …. 12.35 s 341JF …. 12.35 s 341JG …. 12.35 s 341JG(4) …. 12.35 s 341JH …. 12.35 s 341JI …. 12.35 ss 341JK–341JO …. 12.35

s 341JP …. 12.35 s 341JQ …. 12.35 s 341JR …. 12.35 s 341L …. 12.35 s 341M …. 12.35 s 341S …. 12.36 s 341V …. 12.36 ss 341Z–341ZB …. 12.36 s 341ZC …. 12.36 s 341ZD …. 12.36 s 341ZE …. 12.36 s 341ZF …. 12.36 s 341ZG …. 5.27 s 344 …. 12.26, 12.57 s 344(2) …. 12.26 s 345 …. 12.26 s 345A …. 12.26, 12.27 ss 346–347 …. 12.27 s 348 …. 9.17, 12.29, 12.57 s 349 …. 12.27 ss 350–352 …. 12.26 s 350(7) …. 12.27 s 350(6) …. 12.27 s 351 …. 12.26 s 351(6) …. 12.26 s 352 …. 12.27 s 354 …. 12.30 s 354(1) …. 12.30

s 354(1)(a) …. 12.30 s 354(1)(f) …. 12.30 s 354(2) …. 12.31 s 354(4) …. 12.33 s 354(8) …. 12.32 s 354A …. 12.32 s 355 …. 12.32, 12.33, 12.69 s 355(5) …. 12.33 s 355A …. 12.32, 12.33 s 355A(4) …. 12.32 s 357 …. 12.31 s 358 …. 12.27 s 359 …. 12.34 s 359A …. 12.34 s 359B …. 12.31 s 360 …. 12.30, 12.31 s 360(6) …. 12.33 s 362 …. 12.31 s 363 …. 12.31 s 364 …. 12.31 s 366 …. 9.17, 12.28 s 367 …. 12.29 s 367(1)(i) …. 12.17 s 367(3) …. 9.17, 12.29 s 368 …. 12.29 s 368(3) …. 12.29 s 368(4) …. 12.29 s 369 …. 12.31

s 370 …. 12.29 s 371 …. 12.29 s 373 …. 12.29 ss 374–383 …. 12.28 ss 374–390A …. 12.28 s 376 …. 12.28 ss 384–390A …. 5.28, 12.34 s 387 …. 12.33, 12.69, 18.62 s 390 …. 12.29 s 390C …. 12.40 s 390D …. 12.40 s 390E …. 12.40 s 390H …. 12.40 s 390J …. 12.40 ss 390K–390R …. 12.37 ss 390SD–390SF …. 18.41 s 391 …. 6.55, 6.63, 8.66 s 458 …. 6.72 s 459 …. 6.72 s 460 …. 6.72 s 461 …. 6.72 s 464 …. 14.26, 20.4 s 464(4) …. 14.26 s 465 …. 14.26 s 466 …. 14.26 ss 467–469 …. 14.26 s 468 …. 22.2 s 469 …. 22.2

s 470(1) …. 14.27 s 470(2) …. 14.27 s 470(3) …. 14.27 s 471 …. 14.27 s 472 …. 14.27 s 473 …. 14.27 s 474 …. 14.26 s 475 …. 21.2, 21.7, 21.18 s 475(2) …. 21.5 s 475(3) …. 21.5 s 475(4) …. 21.6 s 475(6) …. 19.43, 19.44 s 476 …. 12.39, 21.7 s 478 …. 21.15 s 479(1) …. 21.5 s 479(2) …. 21.6 s 480 …. 21.18 s 480A …. 12.15 ss 480A–480C …. 20.13 s 480D …. 20.8 s 480E …. 20.8 s 480J …. 20.8 s 480K …. 20.8 s 480L …. 20.8 s 480M …. 20.8 s 480N …. 20.8 s 481 …. 6.73, 20.14 ss 481–486D …. 20.14

s 481(2)–(3) …. 6.73 s 481(3) …. 20.16 s 483 …. 6.73 s 485 …. 6.73 s 486A …. 6.73, 20.14 s 486B …. 6.73, 20.14 s 486C …. 6.73, 20.14 s 486D …. 6.73, 20.14 s 486DA …. 20.19 s 486DB …. 20.19 s 487 …. 19.5, 21.2 s 489 …. 6.50 s 490 …. 6.73, 21.8 s 491 …. 6.73 s 493 …. 20.59 s 494 …. 20.87 s 495 …. 20.59, 20.87 s 496 …. 14.28 s 496C …. 14.19 s 499(3) …. 6.50 s 498 …. 6.73 s 500 …. 3.54, 21.21 s 502 …. 14.14 s 503 …. 14.14 s 516B …. 7.30 s 517A …. 6.46, 14.20 s 523 …. 6.7 s 524 …. 6.7

s 524A …. 6.7 s 525 …. 6.6, 6.26, 12.41 s 527E …. 2.67, 6.16, 7.11 s 527E(1) …. 6.16 s 527E(2) …. 6.16 s 528 …. 6.49, 12.41, 14.5, 14.13 Environment Protection and Biodiversity Conservation Regulations 2000 …. 6.25, 6.50, 6.55, 11.4, 14.22, 14.24, 14.85 cl 7.01 …. 14.14 cl 7.02 …. 14.14 cl 7.09 …. 14.21 cl 7.12 …. 14.24 Div 7.2 …. 14.17 Pt 2 …. 6.58 Pt 3 …. 6.27 Pt 4 …. 6.9 Pt 8 …. 14.29 Pt 8A …. 12.41 Pt 9A …. 14.5 Pt 12 …. 12.32, 12.40 reg 2.10 …. 6.14 reg 2A.01 …. 6.35 reg 2A.03 …. 6.36 reg 2B.01 …. 6.28, 12.17, 12.38 reg 3.06 …. 6.27 reg 4 …. 6.46 reg 4.03 …. 6.10 reg 4A.01 …. 6.10 regs 5.01–5.03 …. 6.50

reg 5.02 …. 6.56 reg 5.03A …. 6.53 reg 5.04 …. 6.55 reg 7.11 …. 14.22 reg 8A.03 …. 12.41 reg 8A.03(3) …. 12.41 reg 8A.03(4) …. 12.41 reg 8A.04 …. 12.41 reg 8A.06 …. 12.41 reg 8A.07 …. 12.41 reg 8A.08 …. 12.41 reg 8A.10 …. 12.41 reg 8A.11 …. 12.41 reg 8A.14 …. 12.41 reg 8A.15 …. 12.41 reg 8A.16 …. 12.41 reg 10.03A …. 12.35 reg 10.03H …. 12.27 reg 11.08 …. 12.34 reg 12.08 …. 12.34 reg 13.02 …. 12.40 Sch 1 …. 6.27 Sch 2 …. 6.10 Sch 3 Pt 1 …. 6.50 Sch 4 …. 6.55, 6.56, 11.9, 11.43 Sch 5 …. 12.17 Sch 5A …. 12.38 Sch 5B …. 12.38

Sch 6 …. 12.23 Sch 7 …. 12.25 Sch 7A …. 12.36 Sch 7B …. 12.36 Sch 7C …. 12.36 Sch 8 …. 12.29 Sch 9 …. 12.34 Environment Protection (Impact of Proposals) Act 1974 …. 4.46, 5.8, 6.2, 6.3, 6.7, 6.25, 6.46, 14.3, 19.18 s 5 …. 6.2 Environment Protection (Northern Territory Supreme Court) Act …. 15.63, 18.68 s 3 …. 18.68 s 4 …. 18.68 Environment Protection Nuclear Codes Act 1978 …. 5.5 Environment Protection (Sea Dumping) Act 1981 …. 4.26, 5.5, 5.12, 15.114, 15.138 s 9 …. 5.30 s 19 …. 15.137 Environmental Reform (Consequential Provisions) Act 1999 …. 6.46 Evidence Act 1995 s 138 …. 22.11 Excise Tariff Amendment (Ethanol and Biodiesel) Act 2015 …. 5.23 Excise Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 …. 5.23 Federal Airports Corporation Act 1986 …. 11.22 Federal Airports Regulations 1992 …. 5.51 Federal Court of Australia Act 1976 Pt IVA …. 3.32, 19.50, 19.51 s 33C …. 19.50

s 33D …. 19.50 s 43 …. 21.23 Federal Court Rules O 73 …. 3.32 Financial Framework (Supplementary Powers) Regulations 1997 Sch 1AA …. 5.27 Fisheries Act 1952 …. 5.31 Fisheries Management Act 1991 …. 4.26, 5.31, 5.38 Pt 3 …. 7.38, 18.47 s 3 …. 9.19, 18.9, 18.44 s 3(1) …. 18.45 s 4 …. 18.9 s 13 …. 7.7, 18.9, 18.43 s 15 …. 18.43 s 15A …. 18.43 s 16 …. 18.9, 18.44 s 17 …. 7.35, 9.20, 18.43 s 17(5) …. 9.19, 18.43 s 17(5AA) …. 18.43 s 17(6) …. 9.19 s 17(6D) …. 9.19, 18.43 s 17(9) …. 9.17, 18.44 s 17(10) …. 9.21 s 22(3)(e) …. 2.26, 18.48 s 29(3) …. 18.47 s 31(10) …. 18.47 s 32(5)(e) …. 2.26 s 34 …. 18.47

s 48 …. 3.11 ss 61–81 …. 18.43 s 84(1)(ga)–(gd) …. 20.120 s 106 …. 20.120 s 106A …. 20.120 s 106AA …. 20.120 s 106AAA …. 20.120 Fisheries Management Act 1994 s 3 …. 7.26, 8.25 Fisheries Management Amendment (Supertrawler) Regulation 2015 …. 18.41 Fisheries Management Regulations 1992 …. 18.41 reg 4D …. 18.41 Great Barrier Reef Marine Park Act 1975 (GBRMPA) …. 5.38, 6.46, 12.18, 15.130 Pt II …. 12.18 Pt III …. 12.18 Pt V …. 15.130 s 2A …. 12.18 s 3AA …. 12.18 s 3AB …. 12.18 ss 3A–37A …. 12.18 s 5(1)(g) …. 5.38 s 30 …. 12.18 s 31 …. 12.18 s 32 …. 12.18 s 34 …. 12.18 s 35 …. 12.18 s 35A …. 12.18

s 38 …. 12.18 ss 38A–38D …. 12.19 s 38AA …. 15.130 s 38AB …. 15.130 s 38CA …. 12.19 s 38DD …. 15.130 s 38EE …. 15.130 s 38J …. 12.19 s 38N …. 12.19 s 39 …. 12.18 ss 39A–39U …. 12.19 ss 39W–39Y …. 12.18 s 39Z …. 12.18 s 39ZD …. 12.18 ss 59A–59M …. 12.20, 15.130 s 59F …. 12.20 ss 61A–61C …. 12.20 Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 …. 12.19 cl 9 …. 12.19 Great Barrier Reef Marine Park (Environmental Management Charge — Excise) Act 1993 …. 12.19 Great Barrier Reef Marine Park (Environmental Management Charge — General) Act 1993 …. 12.19 Great Barrier Reef Marine Park Regulations 1983 …. 12.19 Pt 2 …. 12.18 reg 88RA …. 12.19 reg 88ZVA …. 12.19 Hazardous Waste (Regulation of Exports and Imports) Act 1989 …. 5.5, 5.12, 16.21

s 3 …. 16.21 s 4 …. 16.21 s 4A …. 16.21 s 4E …. 16.21 s 4F …. 16.21 s 4G …. 16.21 s 13C …. 16.21 s 17 …. 16.21 s 18A …. 16.21 s 18A(1) …. 16.20 s 18A(3) …. 16.20 s 18A(4) …. 16.20 s 34 …. 16.23, 16.24 s 35 …. 16.24 s 35A …. 16.24 s 36 …. 16.24 s 36(1)(a) …. 16.24 s 36(1)(b) …. 16.24 s 36(2) …. 16.24 s 37(1)(a) …. 16.24 s 37(1)(b) …. 16.24 s 37(2) …. 16.24 s 39 …. 16.24 s 39(1) …. 16.23 s 40 …. 16.24 s 40A …. 16.24 s 59 …. 20.59 Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 …. 16.22

s 4C …. 16.22 s 17(6) …. 16.22 s 17(7) …. 16.22 s 17A(5) …. 16.22 Historic Shipwrecks Act 1976 …. 5.5, 5.12 Illegal Logging Prohibition Act 2012 …. 18.76 s 7 …. 18.76 s 8 …. 18.76 s 9 …. 18.76 s 12 …. 18.76 s 14 …. 18.76 s 15 …. 18.76 s 18 …. 18.76 Illegal Logging Prohibition Regulations 2012 Pt 2 …. 18.76 Pt 4 …. 18.76 Sch 1 …. 18.76 Sch 2 …. 18.76 Industrial Chemicals (Notification and Assessment) Act 1989 …. 15.135 Pt 5A …. 15.135 s 3(a) …. 15.135 Income Tax Assessment Act 1997 …. 5.25 Div 31 …. 5.23 Subdiv 30–DB …. 5.23 Subdiv 30–E …. 5.23 Pts 3–50 …. 5.26 s 30.55 …. 5.23 s 40.755 …. 5.25

s 40.760 …. 5.25 s 43.20(5) …. 5.26 Intergovernmental Agreement on the Environment 1992 …. 5.64, 5.65, 8.15, 9.72, 15.2, 15.14 art 2.5.2 …. 4.10, 5.11 s 2.2 …. 5.65 s 3.3 …. 5.64 s 3.4 …. 5.64 s 3.5.2 …. 8.76 s 3.5.4 …. 8.83 Sch 2 …. 9.72 Sch 4 s 26 …. 15.4 Sch 5 …. 5.64 Sch 6 …. 5.64 Kyoto Protocol and Carbon Credits (Carbon Farming Initiative) Act 2011 …. 17.46 Lands Acquisition Act 1989 s 24(1)(a) …. 22.70 s 42 …. 22.70 Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 …. 5.12, 5.15 Minerals Resource Rent Tax Act 2012 …. 5.23 ss 225.1–225.25 …. 5.23 Motor Vehicles Standards Act 1989 …. 15.4 s 5 …. 15.4 s 7 …. 15.4 s 8 …. 15.4 Murray–Darling Basin Act 1993 …. 18.31 Murray–Darling Basin Agreement …. 5.22

Mutual Recognition Act 1992 …. 7.6, 16.12 s 3 …. 7.6 s 10 …. 7.6 s 11 …. 7.6 Sch 2 …. 7.6 National Environment Protection (Air Toxics) Measure 2004 …. 15.6, 15.12 National Environment Protection (Ambient Air Quality) Measure 1998 …. 15.6, 15.7 National Environment Protection (Assessment of Site Contamination) Measure 1999 …. 15.6, 15.8 cl 15 …. 15.8 National Environment Protection Council Act 1994 …. 15.3 Pt 4 …. 15.15 Pt 5 …. 15.15 s 6(1) …. 15.4 s 7 (1) …. 15.14 s 7 (2) …. 15.14, 15.15 s 11 …. 15.15 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6, 15.15 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 23 …. 15.16 s 24 …. 15.16 s 28(1) …. 15.6

Sch …. 5.65 National Environment Protection (Diesel Vehicle Emissions) Measure 2001 …. 15.6, 15.11 National Environment Protection Measures (Implementation) Act 1998 …. 5.46 Pt 2 …. 15.15 Pt 3 …. 15.15 s 9 …. 15.15 ss 12–15 …. 5.46 National Environment Protection (Movement of Controlled Waste between States and Territories) Measure 1998 …. 15.6 cl 5 …. 15.9 cl 8 …. 15.9 cl 9 …. 15.9 Sch 1 …. 15.9 Sch 2 …. 15.9 National Environment Protection (National Pollutant Inventory) Measure 1998 …. 15.6, 15.10 cl 7 …. 15.10 National Environment Protection (Used Packaging Materials) Measure 2011 …. 15.6, 15.13, 16.10 cl 3 …. 16.10 cl 7 …. 16.10 cl 9 …. 15.13, 16.10 cl 10 …. 15.13 Pt 4 …. 16.10 National Greenhouse and Energy Reporting Act 2007 (NGERA) …. 5.12, 5.20, 20.11 s 4 …. 5.5 s 5 …. 5.7

ss 29–38 …. 20.14 s 45 …. 20.19 s 46 …. 20.19 National Parks and Wildlife Conservation Act 1975 …. 5.34 National Road Commission Act 1991 …. 15.4 National Water Commission Act 2004 …. 5.36 National Water Resources (Financial Assistance) Act 1978 …. 5.22 Native Title Act 1993 …. 2.10, 2.13 s 24MD(2)(b) …. 2.10 s 211 …. 2.13, 12.34 Natural Heritage Trust of Australia Act 1997 …. 5.5, 5.22, 5.27, 5.35 ss 10–14 …. 5.27 s 15 …. 5.27 ss 15–17 …. 5.22 s 16 …. 5.27 s 17 …. 5.27 s 19 …. 5.27 s 20 …. 5.27 Natural Resources Management (Financial Assistance) Act 1992 …. 5.22, 5.35, 13.4 Norfolk Island Act 1979 …. 5.1 Northern Territory (Self-Government) Act 1978 …. 5.39 s 35 …. 5.1 Northern Territory (Self-Government) Regulations 1978 reg 14 …. 5.1 Nuclear Non-Proliferation (Safeguards) Act 1987 …. 18.67 Offshore Minerals Act 1994 …. 4.26, 5.30 s 3 …. 5.30 s 118 …. 18.59

s 177 …. 18.59 s 254 …. 18.59 s 304 …. 18.59 Offshore Petroleum Act 2006 …. 5.32 Offshore Petroleum and Greenhouse Gas Storage Act 2006 …. 4.26, 4.28, 5.5, 5.30, 15.127 Pt 6.9 …. 17.34 s 5 …. 5.30 s 21 …. 17.34 s 28 …. 17.34 s 29 …. 17.34 s 98 …. 17.33 s 135 …. 17.33 ss 192–208 …. 17.34 ss 312–315 …. 17.34 ss 318–354 …. 17.33 ss 355–401 …. 17.33 s 370 …. 17.34 ss 376–378 …. 17.34 ss 379–382 …. 17.34 s 392 …. 17.34 ss 402–410 …. 17.33 ss 411–421 …. 17.33 ss 422–425 …. 17.33 s 453 …. 17.34 s 464 …. 17.34 s 571 …. 17.34 s 571A …. 17.34 ss 572A–572F …. 15.127

ss 585–590A …. 15.127 Sch 4 …. 5.23 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 …. 17.34 Pt 2 …. 17.34 reg 3 …. 17.34 regs 6–8 …. 17.34 reg 10A …. 17.34 Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 …. 5.23 Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 …. 6.15 Ozone Protection Act 1989 …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 1989 …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 …. 5.5, 5.12, 15.133, 16.6 s 3 …. 15.133 s 13(9) …. 15.133 s 41(3) …. 15.133 Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 …. 15.133 Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 …. 4.25, 5.32 Petroleum Resource Rent Tax Assessment Act 1987 …. 5.23 Petroleum (Submerged Lands) Act 1967 …. 2.30 Petroleum (Timor Sea Treaty) Act 2003 …. 4.25 Product Grants and Benefits Administration Regulations 2000 …. 5.23 Product Stewardship Act 2011 …. 2.53, 5.12, 5.24, 5.63, 7.5, 15.13, 16.11, 16.13 Pts 2–4 …. 16.13

Pt 3 …. 16.14 s 3 …. 16.13 s 4 …. 16.14 s 4(3) …. 5.9 s 9 …. 7.19 s 13 …. 16.14 s 19(1) …. 16.14 s 19(2) …. 16.14 s 19(3A) …. 16.11 s 21 …. 16.14 s 21(3) …. 16.14 s 22 …. 16.14 s 27 …. 16.14 s 37(1) …. 16.13 s 37(2) …. 16.13 Product Stewardship (Oil) Act 2000 …. 5.23 Product Stewardship (Televisions and Computers) Regulations 2011 …. 5.24, 16.14 Pt 5 …. 16.14 reg 1.03 …. 16.14 reg 1.04 …. 16.14 regs 2.01–2.03 …. 16.14 reg 3.01 …. 16.14 reg 3.02 …. 16.14 reg 3.03 …. 16.14 reg 3.04 …. 16.14 reg 3.05 …. 16.14 reg 3.06 …. 16.14 Protection of the Sea (Civil Liability) Act 1981 …. 5.12, 15.114

Pt II …. 15.126 s 9 …. 15.121 s 21 …. 15.122 s 22 …. 15.122 s 22A …. 15.122 Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 …. 15.129 s 3 …. 15.129 s 6 …. 15.129 s 8 …. 15.129 s 9 …. 15.129 Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 …. 15.114 s 31(1) …. 15.122 s 46A …. 15.123 s 46E …. 15.123 s 46F …. 15.124 s 46G …. 15.124 s 46J …. 15.123 s 46K …. 15.123 s 46L …. 15.123 ss 46M–46Q …. 15.123 ss 46S–46U …. 15.123 s 46V …. 15.123 s 46W …. 15.123 Protection of the Sea (Powers of Intervention) Act 1981 …. 5.12, 15.114, 15.119 ss 8–11 …. 15.119 s 8(2)(a) …. 15.119 s 9(2)(a) …. 15.119

s 10(3)(a) …. 15.119 Protection of the Sea (Prevention of Pollution from Ships) Act 1983 …. 4.26, 5.5, 5.12 15.114, 15.115, 15.116, 15.126, 15.128 Pt II …. 15.117 Pt III …. 15.117 Pt IIID …. 15.128 s 3(3) …. 4.44 s 6 …. 15.126 s 9 …. 5.30, 15.126, 20.41 s 9(1B)(b)(i) …. 15.126 s 10 …. 15.126 s 26A …. 15.128 s 26AB …. 15.128 s 26B …. 15.128 s 26BC …. 15.128 s 26D(1)–(5) …. 15.128 s 26D(5)–(7) …. 15.128 s 26DAA …. 15.128 s 26F …. 15.128 s 26FA …. 15.128 s 26FB …. 15.128 s 26FC …. 15.128 s 26FD …. 15.128 s 26FE …. 15.128 s 27A …. 15.120 s 28 …. 20.59 Protection of the Sea (Shipping Levy) Act 1981 s 4 …. 15.121 s 5 …. 15.121

Quarantine Act 1908 …. 4.39, 14.7, 14.8 s 4 …. 14.8 ss 11C–11E …. 14.8 ss 52–55A …. 14.8 Racial Discrimination Act 1975 …. 2.10 Regional Forest Agreements Act 2002 …. 5.7, 6.38, 9.28 s 6 …. 11.2, 18.72 Renewable Energy (Electricity) Act 2000 …. 5.5 Resource Assessment Commission Act 1989 s 8 …. 8.16 River Murray Water Agreement Act 1983 …. 5.22 Seas and Submerged Lands Act 1973 …. 5.12, 5.29 s 16 …. 5.30 Soil Conservation (Financial Assistance) Act 1986 …. 5.22 South Pacific Nuclear Free Zone Treaty Act 1986 …. 5.38, 15.131, 18.67 s 4(1) …. 15.131 ss 8–13 …. 15.131 States Grants (Air Quality Monitoring) Act 1976 …. 5.22 States Grants Nature Conservation Act 1974 …. 5.22 States Grants (Water Resources Measurement) Act 1970 …. 5.22 Statute of the International Court of Justice …. 4.14, 4.19 art 38(1) …. 4.9 Tasmanian Native Forestry Agreement Act 1979 …. 5.22 Telecommunications Act 1997 …. 6.46 s 9 …. 5.52 s 10 …. 5.52 s 11 …. 5.52 s 15 …. 5.52

s 17 …. 5.52 s 18 …. 5.52 s 27 …. 5.52 s 28 …. 5.52 s 37 …. 5.52 s 44 …. 5.49 s 50 …. 5.52 s 51 …. 5.52 s 55 …. 5.52 Sch 3 …. 5.52 Sch 3 cl 28 …. 6.46 Torres Strait Fisheries Act 1984 …. 4.25 Torres Strait Treaty 1978 …. 4.25 Trade Practices Act 1974 …. 2.41, 3.32, 3.34, 6.73 s 45D …. 2.41 s 45DB …. 2.41 s 51AA …. 2.41 Urban and Regional Development (Financial Assistance) Act 1974 …. 5.22 Wastes (Regulation of Exports and Imports) Act 1989 …. 5.8 Water Act 2007 …. 5.6, 5.7, 5.12, 5.38, 7.57, 18.29, 18.31, 18.33, 20.11 Pt 2 Div 4 …. 2.26 Pt 2A …. 18.34 Pt 2AA …. 18.36 Pt 6 …. 18.33 s 4 …. 18.33, 18.35 s 6 …. 18.33 s 9 …. 5.6, 5.38 s 9A …. 5.6, 5.38

s 18H …. 5.22 s 20 …. 18.34 s 21 …. 18.34 s 21(5) …. 18.34 s 54 …. 18.35 s 55 …. 18.35 s 56 …. 18.35 ss 63–70 …. 18.35 ss 74–86 …. 18.36 s 86AA(3) …. 18.36 s 86AD …. 18.36 s 86A(1) …. 18.34 s 86A(2) …. 18.34 s 105(2) …. 18.33 s 105(3) …. 18.33 s 105(4) …. 18.33 s 105(5) …. 18.33 ss 146–154 …. 20.14 s 163 …. 20.19 s 164 …. 20.19 s 169 …. 20.91 Sch 1 …. 18.33 Sch 3 …. 18.36 Sch 3 cl 3 …. 18.36 Sch 3 cl 4 …. 18.36 Sch 3 cl 6 …. 18.36 Sch 3A …. 18.22, 18.36 Sch 3A Pt 2 …. 18.36

Water Efficiency Labelling and Standards Act 2005 …. 18.38 s 8 …. 5.7, 18.38 s 11 …. 5.7 s 18 …. 18.38 ss 26–33 …. 18.38 s 34 …. 18.38 s 35 …. 18.38 Wildlife Protection (Regulation of Exports and Imports) Act 1982 …. 14.4 World Heritage Properties Conservation Act 1983 …. 5.14, 5.49, 12.11, 19.43 s 8 …. 5.28 s 9 …. 5.13, 5.28 s 9(1) …. 5.13 s 9(1)(a)–(g) …. 5.13, 5.15 s 9(1)(h) …. 5.13 s 9(2) …. 5.13 s 11 …. 5.28 s 13 …. 8.37 s 16 …. 5.15

Australian Capital Territory Administrative Decisions (Judicial Review) Act 1989 …. 22.19 s 4A …. 19.20 ss 5–7 …. 22.20 ss 13–15 …. 22.21 Australian Capital Territory Environmental Offsets Policy 2015 …. 13.42 Building Act 2004 s 143 …. 8.49 Civil and Administrative Tribunal Act 2008 …. 2.72, 10.70

s 22Q …. 15.88 s 67A …. 15.88 s 68 …. 15.88 Crimes Act 1900 s 394 …. 15.96 Development Act 2007 …. 13.15 Domestic Animals Act 2000 s 81 …. 14.36 Enforcement of Public Interests Ordinance 1973 …. 19.47 Environment Protection Act 1997 Dictionary …. 15.27, 15.28, 15.29 Pt VI …. 15.43 Pt VII …. 15.43 Pt IX …. 15.43 s 2(1)(b) …. 16.3 s 3 …. 15.25, 15.26 s 3D …. 8.21 s 4 …. 15.24, 15.25, 15.26, 16.25 s 5 …. 15.24 s 8(2) …. 15.26 s 9 …. 3.16 s 13 …. 15.4 s 14 …. 15.4 s 15 …. 15.6, 15.99 s 16 …. 15.6 s 17 …. 15.4 s 18 …. 15.4 ss 19–21 …. 15.61

s 20 …. 15.4 s 21A …. 16.26 s 21B …. 16.26 s 22 …. 3.50, 15.35 s 22(2) …. 15.35 s 22(3) …. 3.50, 15.6 s 23 …. 15.37 s 24 …. 15.39 ss 24–30 …. 15.38 s 25 …. 15.40 s 27(1) …. 15.4 ss 28–32 …. 15.38 s 30 …. 15.38 s 30A …. 15.93 ss 31–33 …. 15.41 s 31(4) …. 15.93 s 33 …. 15.36, 15.42 s 34 …. 15.72 s 35 …. 15.72 s 36 …. 15.38, 15.72 s 37 …. 15.38 ss 38–41 …. 15.74 s 38(1) …. 15.43 s 39(c)(i) …. 15.41 s 42 …. 15.59, 15.111 ss 42–45 …. 15.59 s 42(2) …. 15.59 s 43 …. 15.59

s 43(1) …. 15.111 s 44 …. 15.111 s 45 …. 3.50, 15.111 s 46(b) …. 15.47 s 48 …. 15.48, 15.61 s 51 …. 15.75 s 51(a)(ii) …. 15.46 s 52 …. 15.62, 15.79 s 55 …. 15.79 s 57 …. 15.62 s 58 …. 15.62 s 59 …. 15.61 s 60 …. 15.64 ss 60–65 …. 15.57, 15.63 s 61 …. 15.66 s 61(c) …. 15.39 s 63 …. 15.63, 15.79 s 63(1)(a)(i) …. 15.79 s 63(1)(a)(ii) …. 15.79 s 63(2) …. 15.79 s 63(3) …. 15.79 s 66 …. 15.79 s 67 …. 15.64 s 68 …. 15.43 ss 68–72 …. 15.46 s 69 …. 15.46 s 71 …. 15.46 s 71(3) …. 15.48

s 74 …. 15.80, 20.69 s 75 …. 15.87 s 76 …. 15.81 s 77 …. 15.81 s 78 …. 15.86 s 78(1) …. 15.88 s 78(8) …. 15.86 s 79 …. 15.88 ss 80–84 …. 15.101 ss 85–91 …. 15.77 s 88 …. 15.77 s 89 …. 15.77 s 90 …. 15.77 s 91C(8) …. 15.111 s 91D(4) …. 15.111 s 92 …. 15.60 s 125 …. 15.91 ss 125–126 …. 15.91 s 126 …. 15.91, 15.111 s 127(1) …. 15.113 s 127(1)(a) …. 15.113 s 127(1)(b) …. 15.113 s 127(2) …. 21.2 s 128 …. 15.113 s 128(1) …. 15.113 s 128(1)(c) …. 15.113 s 128(1)(d) …. 15.113 s 128(1)(e) …. 15.113

s 131(b) …. 21.13 s 134 …. 15.111 ss 135–136B …. 15.88 s 135(r)–(u) …. 15.47 s 135(5) …. 15.88 s 136B …. 16.46 s 137 …. 15.104 ss 137–141 …. 15.26 s 138 …. 15.104 s 139 …. 15.104 s 141 …. 15.104 s 142 …. 15.104 s 143 …. 3.50 s 146 …. 20.54 s 146(6) …. 20.54 s 147 …. 20.59 s 147(2)(a) …. 20.86 s 149 …. 15.57 s 153 …. 20.71 s 153(1) …. 20.86 s 153(2) …. 20.74 s 154 …. 20.81 s 155 …. 20.39, 20.42 s 157(1) …. 15.112 s 157(1)(a) …. 15.112 s 157(1)(b) …. 15.112 s 157(1)(c) …. 15.112 s 157(1)(d)(i) …. 15.112

s 157(1)(d)(ii) …. 15.112 s 159A …. 15.10 Sch 1 …. 15.59, 15.111, 16.17 Sch 3 …. 15.88, 16.46 Environmentally Hazardous Chemicals Act 1985 s 34 …. 15.77 Fisheries Act 2000 s 3 …. 8.28 Heritage Act 2004 …. 10.41 s 3 …. 8.30 ss 62–64 …. 20.4 s 69 …. 20.13 s 70 …. 20.13 Human Rights Act 2004 …. 2.46 Human Rights Commission Act 2005 …. 2.46 National Environment Protection Council Act 1994 …. 15.3 s 5(1) …. 15.4 s 6(1) …. 15.4 s 13(1) …. 15.4 s 13(3) …. 15.4 s 14 …. 15.4 s 14(3) …. 15.4 Nature Conservation Act 1980 ss 73–82 …. 13.33 Nature Conservation Act 2014 …. 14.36 Ch 2 …. 14.36 Ch 3 …. 14.36 Ch 7 …. 14.36

Ch 9 …. 12.76 Ch 11 s 262 …. 14.36 Ch 12 s 310 …. 14.36 Dictionary …. 14.79 Pt 4.5 …. 14.79 Pt 5.3 …. 14.36 Pt 8.3 …. 12.67 Pt 9.4 …. 13.15 Pt 11.2 …. 14.80 Pt 14.1 s 331 …. 14.36 s 6 …. 14.36 s 9 …. 14.36 s 10 …. 14.36 s 11 …. 14.36 s 12 …. 14.36 s 13 …. 14.36 s 14 …. 14.36 s 15 …. 14.36 s 16 …. 14.36 s 17 …. 14.36 s 18 …. 14.36 s 19 …. 14.36 s 23 …. 14.36 s 48 …. 14.36 s 61 …. 14.36 s 64 …. 14.79 s 70 …. 14.79 s 81 …. 14.79

s 86 …. 14.79 s 91 …. 14.79 s 98 …. 14.36 s 100(a)(B)(iii) …. 14.79 s 100B …. 14.79 s 101 …. 14.36 s 101(3)(d) …. 14.79 s 107 …. 14.79 s 109 …. 14.36 s 111 …. 14.36 s 112(1) …. 14.36 s 112(2) …. 14.36 s 112(3) …. 14.36 s 113 …. 14.36 s 117 …. 14.36 s 117(a) …. 14.36 s 124 …. 14.36 s 153 …. 14.36 s 157 …. 14.36 s 169 …. 13.15 s 176 …. 12.73 s 179 …. 12.67 s 229 …. 12.76 s 233 …. 13.15 s 234 …. 13.15 ss 235–240 …. 13.15 s 238(4) …. 13.15 s 241 …. 12.76, 13.15

s 242 …. 13.15 s 250 …. 12.76 s 252 …. 13.15 s 253 …. 12.69 s 254 …. 12.69 ss 256–258 …. 14.36 s 317 …. 14.79 s 318 …. 14.79 s 331 …. 14.81 s 332 …. 14.81 s 336 …. 14.81 Planning and Development Act 2007 …. 9.7, 10.2, 10.40, 11.4, 11.55 Dictionary …. 10.40, 10.41 Pt 6A …. 13.42 Pt 8.1 …. 10.40 Pt 8.2 …. 10.40 Pt 8.3 …. 10.40 Pt 10.4 …. 12.67 s 7 …. 10.2 s 7(1) …. 11.55 s 49 …. 9.1, 10.39 s 50 …. 9.33 s 50A …. 10.40 s 52 …. 9.62 s 54 …. 10.8 s 54(1) …. 10.40 s 54(3) …. 10.40 s 55 …. 10.8

s 62(2) …. 9.62 ss 69–72 …. 11.54 ss 74–87 …. 11.54 ss 87A–105 …. 11.54 s 96(1) …. 11.54 ss 99–101 …. 9.62 s 112(3) …. 10.40 s 113(1) …. 10.2, 10.40 s 114(1) …. 10.40 s 115 …. 10.40 s 116 …. 10.41 s 119 …. 10.41 s 119(2) …. 8.54 s 119(3) …. 8.54 s 120 …. 10.41 s 120(c) …. 10.40 s 120(f) …. 8.54 s 121 …. 10.40 s 122(2)(c) …. 11.55 s 123 …. 10.40, 11.55 s 124 …. 10.40, 11.8 s 124A …. 10.40, 11.8, 11.55, 13.42 s 125 …. 10.40 s 127 …. 10.40, 11.55 s 128(1) …. 10.41 s 128(1)(b)(vi) …. 10.40 s 128(2) …. 10.41 s 128(3) …. 10.41

s 129 …. 10.40, 10.41, 11.56 s 129(d) …. 10.40 s 130 …. 10.40 s 132 …. 10.40 s 136 …. 10.5 ss 138AA–138AD …. 10.40 s 138AA(2) …. 11.55 s 138AB(4) …. 10.40 s 138A(2) …. 10.40 s 147A …. 10.40 ss 147A–149 …. 14.79 s 148 …. 10.6 s 149 …. 10.6 s 151 …. 10.6 s 156 …. 10.40 s 156(6) …. 10.40 s 157 …. 10.40 s 158 …. 10.40 ss 158–161 …. 10.58 s 158(1A) …. 10.40 s 158A …. 10.40 s 158B …. 10.40 s 159 …. 10.40 s 159(2) …. 10.40 s 165 …. 10.41 s 165(2)(d) …. 10.40 s 165(3)(l) …. 10.47 s 165(4) …. 10.41

ss 170–174 …. 10.41 s 191 …. 10.70 s 191(1)–(3) …. 10.69 s 193(5)(b) …. 10.69 s 193(7) …. 10.69 s 209 …. 11.56 s 210 …. 11.55 s 211 …. 11.55 s 211(1) …. 10.40 ss 212–215 …. 11.9, 11.56 s 213 …. 11.99 s 213(2) …. 11.56 s 216 …. 11.13, 11.56 ss 217–220 …. 11.56 s 219 …. 10.40 ss 221–223 …. 11.56 s 224 …. 11.56 s 225 …. 11.56 s 225A …. 11.14 s 226 …. 11.56 s 227 …. 11.56 ss 228–233 …. 11.12, 11.56 s 315 …. 12.44 s 316 …. 12.44 s 317 …. 12.44 s 317(2) …. 12.67 s 319 …. 12.73 s 323 …. 12.67

s 407 …. 10.70 s 408 …. 10.70 s 408(1) …. 10.70 s 408(2) …. 10.41 s 409 …. 10.70 s 409(3) …. 10.70 s 410 …. 10.70 Sch 1 …. 10.5, 10.70, 19.5, 19.23 Sch 1 column 5 …. 10.70 Sch 3 …. 12.44, 12.67 Sch 4 …. 10.40, 11.55 Planning and Development Regulations 2008 …. 10.2 reg 28 …. 10.40 reg 29 …. 10.41 reg 50 …. 11.13 reg 50A …. 11.55 reg 54 …. 11.56 reg 55 …. 11.99 reg 350 …. 10.70 reg 351 …. 10.70 Plastic Shopping Bags Ban Act 2010 …. 16.12 s 6 …. 16.12 s 7 …. 16.12 Radiation Protection Act 2006 …. 15.131 s 12 …. 15.131 Tree Protection Act 2005 …. 10.2, 13.33 s 3 …. 8.30 Waste Minimisation Act 2001 …. 16.10

Div 2.1 …. 15.46 s 6 …. 8.27 Water Efficiency Labelling and Standards Acts 2015 …. 18.38 Water Quality Environment Protection Policy 2008 …. 15.24 Water Resources Act 2007 …. 2.30, 18.29

New South Wales Aboriginal Land Rights Act 1983 …. 14.64 Pt 4A …. 14.64 s 47 …. 14.64 s 48 …. 14.64 s 117(2) …. 14.64 Access Licence Dealings Principles Order 2004 …. 18.29 Biosecurity Act 2015 …. 3.46, 14.40 s 6 …. 3.46 s 15 …. 14.40 Botany and Randwick Sites Development Act 1982 …. 10.67 Catchment Management Authorities Act 2003 …. 7.57, 14.97 s 20 …. 9.42 Civil Liability Act 2002 …. 3.30, 3.37 s 5 …. 3.38 s 5A …. 3.38 s 5B(1) …. 3.37 s 5D …. 3.36 s 40 …. 3.38 s 42 …. 3.37, 17.51 s 43 …. 3.37 s 43A …. 3.38 Civil Procedure Act 2005

s 11 …. 21.29 s 58 …. 21.37 s 60 …. 21.37 Clean Air Act 1961 s 14 …. 20.33 Clean Waters Act 1970 …. 2.6, 15.20, 20.51, 20.66 s 5 …. 20.51 s 29(2)(a) …. 20.66 Coastal Protection Act 1979 …. 3.45, 17.49, 17.51, 18.52, 18.54, 18.55 Pt 4C …. 3.45 s 3 …. 18.53 s 4 …. 18.54 s 6 …. 18.55 s 12 …. 18.56 s 13 …. 18.56 ss 37–47 …. 18.54 s 37A …. 18.54 s 54A …. 18.54 s 55 …. 18.54 ss 55A–55L …. 18.54 s 55K …. 18.54 s 55M …. 18.55 s 55O …. 18.55 ss 55O–55ZH …. 18.55 s 55P …. 18.55 s 55R …. 18.55 s 55VC …. 18.55 s 55W …. 18.55

s 55ZA …. 18.55 s 55ZB …. 18.55 s 55ZC …. 18.55 s 56A …. 18.55 Coastal Protection Regulation 2011 Pt 3 …. 18.55 reg 5 …. 18.54 reg 6 …. 18.54 Constitution Act 1902 …. 5.39 Contaminated Land Management Act 1997 …. 16.30 Ch 7 Pt 8 …. 16.47 s 4 …. 15.26 s 5 …. 16.25 s 6 …. 16.35 s 7 …. 16.35 s 10 …. 16.34 s 11 …. 16.34, 16.35 s 12 …. 16.34 s 13 …. 16.35 s 14 …. 20.4 ss 14–16 …. 16.35 s 17 …. 15.81, 16.36, 20.4 s 28 …. 16.36 ss 48–53 …. 16.44 s 53B …. 16.30, 16.45 s 53B(3) …. 16.45 s 54 …. 16.44 s 59 …. 16.36

s 60 …. 16.34 s 60(3) …. 16.34 s 60(5) …. 16.34 s 60(9) …. 16.34 s 61 …. 15.88, 16.35, 16.47, 20.4 s 62 …. 16.47 s 520 …. 16.47 Sch 2 …. 16.47 Conveyancing Act 1919 …. 17.51 s 88AB …. 3.9, 3.10 s 89 …. 7.51 Crimes Act 1900 s 556A …. 20.93 Crimes (Sentencing Procedure) Act 1999 …. 20.93, 20.117 s 3A …. 20.92 s 5 …. 20.98 s 10 …. 20.112 s 21A(2)(g) …. 20.107 s 21A(3) …. 20.106 Criminal Procedure Act 1986 s 257C …. 20.124 s 257D …. 20.124 Crown Lands Act 1989 …. 9.7, 9.12, 12.61 Pt 4 Div 3 …. 3.9 s 11 …. 9.12 s 12 …. 7.26 ss 31–34 …. 9.12 s 35 …. 9.12

s 85 …. 9.12 s 91 …. 9.12 s 112 …. 7.35 s 135 …. 12.2 s 140 …. 13.63 Crown Lands (Continued Tenures) Act 1989 …. 13.64 Sch 6 …. 13.64 Crown Lands (Continued Tenures) Regulations Sch 2 cl 14 …. 13.64 Cumberland Oval Act 1981 …. 10.67 Electricity Supply Act 1995 …. 13.21 Div 2A …. 13.21 Pt 8A …. 4.42 s 48 …. 13.21 s 53C …. 13.21 Electricity Supply (Safety and Network Management) Regulation 2014 reg 36 …. 13.21 reg 37 …. 13.21 Endangered Fauna (Interim Protection) Act 1991 …. 14.38 Energy and Utilities Administration Act 1987 Pt 6A …. 18.39 s 34A …. 18.39 s 34Q(1) …. 18.39 s 34S …. 18.39 s 34V(3) …. 18.39 Environmental Planning and Assessment Act 1979 (EPAA) …. 2.55, 2.63, 5.51, 7.28, 8.31, 9.12, 10.2, 10.13, 11.4, 11.22, 12.61, 13.20, 13.21, 13.43, 13.44, 13.53, 13.57, 14.38, 14.94, 15.61, 15.89, 16.29, 18.40, 18.54, 18.55, 18.56, 18.62, 19.39, 20.59, 21.12, 21.33, 21.36, 22.28, 22.48, 22.78

Pt 3A …. 11.33, 13.54 Pt 4 …. 10.8, 10.18, 10.21, 10.61, 10.70, 11.16, 11.21, 11.22, 11.34, 11.35, 11.37, 11.39, 13.16, 13.59 Pt 4 Div 2 …. 10.9 Pt 4 Div 4.1 …. 11.16, 11.33 Pt 4 Div 5 …. 10.22, 18.13 Pt 4 Div 10 …. 11.23 Pt 5 …. 6.34, 9.29, 10.8, 10.18, 10.61, 11.2, 11.16, 11.21, 11.22, 11.23, 11.30, 11.31, 11.34, 11.37, 11.38, 11.40, 13.59, 18.66, 18.76, 22.47, 22.64 Pt 5 Div 5 …. 11.2, 11.23, 18.47 Pt 5.1 …. 11.16, 11.33 Pt 5A …. 9.33, 18.9 s 4 …. 10.2, 10.18, 11.29, 19.23 s 4(1) …. 9.44, 10.19 s 4(6) …. 9.44 s 4(6A) …. 9.44 s 5 …. 7.28, 9.1, 11.90, 14.38, 21.30 s 5(a)(i) …. 18.78 s 5A …. 10.15, 10.19, 11.22, 11.24, 11.36, 14.94 s 5A(2)(b) …. 11.27 s 5A(2)(c) …. 11.27 s 5A(2)(d)(ii) …. 11.27 s 5B …. 10.17, 10.19 s 5D …. 10.19 s 6 …. 9.33 s 7 …. 10.5 s 23D …. 11.12, 11.99 s 23D(1)(b) …. 11.34

s 23D(1)(b)(iv) …. 11.32 s 23D(1)(c) …. 10.13 s 23G …. 10.13 s 26 …. 9.38, 9.55, 10.2, 15.38 s 28 …. 3.9, 7.51, 13.57 s 29 …. 11.17 s 29A …. 10.9 s 32 …. 14.41 s 33A …. 9.49 s 33B …. 9.49 s 34A …. 9.4, 9.48, 9.49 s 35 …. 22.40 s 36 …. 9.43, 15.38 s 37 …. 9.39, 15.38 s 37B …. 18.54 s 38 …. 9.39, 9.44, 9.48, 10.9 s 39 …. 15.38 s 45 …. 14.40 s 51 …. 15.38 s 51A …. 15.38 s 54 …. 9.48 s 56 …. 14.40 s 56(3) …. 9.49 s 57 …. 9.49, 9.55, 14.41 s 58I …. 14.41 s 59 …. 9.55 s 69 …. 15.38 s 70 …. 14.40, 15.38

s 71 …. 14.41 s 72 …. 15.38 s 73 …. 9.2 s 73A …. 9.49 s 75X …. 22.28 s 76(2) …. 10.8 s 76(3) …. 10.5, 10.8 s 76A …. 9.40, 10.5 s 76A(5) …. 10.8 s 76B …. 10.5 s 78A(8) …. 14.94, 14.96 s 78A(8)(a) …. 10.19, 11.16 s 78A(8)(b) …. 10.19, 11.16, 11.28, 11.35 s 78A(8A) …. 11.34 s 79 …. 11.39 s 79(1) …. 10.9 s 79(5) …. 10.9, 11.39 s 79A …. 10.9 s 79B …. 10.5, 14.95, 18.14 s 79B(3) …. 10.20, 11.36 s 79B(4) …. 10.20 s 79B(5) …. 10.20 s 79B(8A) …. 10.20, 13.48 s 79B(8B) …. 10.20, 13.48 s 79C …. 7.28, 8.31, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.18, 10.23, 10.24, 10.27, 11.34, 14.97 s 79C(1) …. 10.19 s 79C(2) …. 10.16 s 79C(4) …. 10.16

s 80 …. 10.16 s 80(3) …. 10.16, 10.24 s 80(7) …. 11.14 s 80(10)(b) …. 11.39 s 80A …. 10.16, 13.45 s 80A(2) …. 10.16 s 80A(4) …. 10.23 s 80A(6) …. 10.23 ss 82A–82D …. 10.69, 22.2 s 84A …. 10.5 s 89 …. 10.7 s 89C …. 11.33 s 89C(2) …. 10.61 s 89C(3) …. 10.61, 11.33 s 89D …. 10.62, 11.34 s 89E(2) …. 10.5, 10.62, 11.33 s 89E(3) …. 10.5, 10.62, 11.33 s 89E(5) …. 11.33 s 89F …. 10.9, 11.34 s 89H …. 11.34 s 89I …. 11.37 s 89J …. 11.33 s 89J(1)(e) …. 10.21 s 89K …. 11.33 s 90(2) …. 10.22 s 91 …. 10.22, 18.13 s 91A(2) …. 10.22 s 91A(3) …. 10.22

s 91A(4) …. 10.6, 10.22 s 93(2) …. 10.22 s 93A …. 10.6, 10.22 s 93F …. 9.30, 10.47, 13.44 ss 93F–93L …. 10.48 s 93F(2)(f) …. 10.47, 10.48, 10.25, 10.26, 10.50 s 93F(3)(g) …. 13.44, 13.55 s 93I(3) …. 13.45 s 94 …. 8.84, 13.44, 13.45 s 94(1) …. 10.25 s 94(3) …. 10.25 s 94(3)(b) …. 10.25 s 94(4) …. 10.25 s 94(5)(a) …. 10.25 s 94(5)(b) …. 10.25 s 94A(1) …. 10.26 s 94A(2) …. 10.26 s 94A(2A) …. 10.26 s 94A(3) …. 10.26 s 94B …. 10.25 s 94E …. 10.25, 10.26 s 94EA …. 10.25 s 94EAA …. 10.25 s 94EB …. 10.25 s 94EC …. 10.25 s 96 …. 10.27, 10.63, 10.69 s 96(1) …. 10.27 s 96(1A) …. 10.27

s 96(2)(a) …. 10.27 s 96(2)(b) …. 10.27 s 96(2)(c) …. 10.27 s 96(2)(d) …. 10.27 s 96(3) …. 10.27 s 96(5) …. 10.27 s 96AA …. 10.27, 10.69 s 96AB …. 10.69 s 97 …. 10.48, 10.70, 19.4, 22.26 s 97(7) …. 10.70, 11.34, 11.105 s 98 …. 10.70, 14.38, 19.4, 19.5 s 98(5) …. 10.70, 11.34, 11.105 s 100 …. 14.38 s 101 …. 14.38 s 102 …. 10.9, 14.38 s 103 …. 14.40 s 104A …. 22.40 s 107(3) …. 9.53 s 109 …. 9.53 s 109(3) …. 9.53 s 110 …. 9.54, 10.18, 11.21, 11.22, 11.31 s 110(1) …. 11.16, 11.21 s 110A …. 10.18, 11.16, 11.31 s 110B(1)(a) …. 11.16 s 110B(1)(b) …. 11.16 s 110C …. 11.37 s 110E …. 11.21 s 110E(a) …. 11.32

s 111 …. 10.18, 11.21, 11.22, 11.89 s 111(1) …. 11.22 s 112 …. 10.18, 11.6, 11.8, 11.21, 11.22, 11.28, 14.40 s 112(1) …. 11.16 s 112(1)(d) …. 11.32 s 112(1B) …. 11.16, 11.28, 11.37 s 112(4) …. 11.28 s 112A …. 11.32, 11.37 s 112B …. 11.37, 18.7, 18.14 ss 112B–112E …. 11.32 s 112B(2) …. 11.37 s 112C …. 11.37, 14.95, 18.7, 18.14 s 112C(2) …. 11.37 s 112D …. 11.37, 14.95 s 112E …. 11.37 s 113 …. 11.32 s 113(1) …. 11.40 s 113(2) …. 11.40 s 113(3) …. 11.40 s 113(5) …. 11.14, 11.32, 11.40 s 113(6) …. 11.40 s 113(8) …. 11.40 s 114 …. 11.12, 11.14, 11.32, 11.40 s 115A …. 11.16, 14.41 s 115J(2) …. 18.47 s 115U …. 11.33 s 115U(2) …. 10.61 s 115U(3) …. 10.61

s 115U(3)(b) …. 10.61 s 115U(4) …. 10.61, 11.33 s 115U(6) …. 10.62 s 115U(7) …. 10.62 s 115V …. 10.62, 11.33 s 115W …. 10.62, 11.34 s 115X …. 10.62 s 115Y …. 10.62, 11.34 s 115Y(2) …. 11.34 s 115Z …. 10.9, 10.62, 11.34 s 115Z(6) …. 11.34 s 115ZA …. 10.62, 11.14 s 115ZB …. 10.62, 11.14 s 115ZC …. 10.62, 11.14 s 115ZD …. 10.62 s 115ZE …. 10.62 ss 115ZF–115ZH …. 10.62 s 115ZG …. 11.33 s 115ZG(1)(e) …. 10.21 s 115ZH …. 11.33 s 115ZJ(1) …. 22.26 s 115ZJ(2) …. 10.62 s 115ZK …. 10.70, 11.14 s 115ZL(1) …. 10.62 s 115ZL(2) …. 10.62 s 116B …. 11.20 s 116C …. 11.20 s 117 …. 9.47, 14.41

s 118 …. 10.13, 14.41 s 118AA …. 10.13 s 118AB …. 10.13 s 121B …. 20.4 s 121ZK …. 20.4 ss 122A–122D …. 11.34, 11.94 ss 122A–122F …. 10.63 s 122B …. 11.34 s 122C …. 7.30 s 122D …. 11.34 s 123 …. 11.30, 19.5, 19.39, 21.2 s 125 …. 10.16 s 131 …. 14.41 s 145A …. 16.25, 16.29 s 145B …. 16.29 s 145B(2) …. 16.30 s 145B(3) …. 3.43, 16.29 s 145C …. 16.29 s 149 …. 16.30 s 149(6) …. 3.43 s 231 …. 10.13 Sch 1 …. 18.47 Sch 1A …. 18.47 Sch 4 …. 10.8 Sch 5 …. 10.8, 11.33 Environmental Planning and Assessment Regulation 2000 …. 2.55, 10.2 cl 8F(1) …. 18.62 cl 8F(1)(c) …. 18.62

cl 8N …. 14.96 cl 27 …. 10.25 cll 77–81 …. 10.9 cll 82–85B …. 10.9 cll 86–91 …. 10.9 cl 92 …. 10.17 cl 95 …. 10.24 cl 115 …. 10.27 cl 116 …. 10.27 cl 118 …. 10.27 cl 119 …. 10.27 cl 228 …. 11.24 Pt 4 …. 10.25 Pt 6 Divs 5–7 …. 10.9 Pt 10 …. 10.62 reg 2(1)(f) …. 11.34 reg 6 …. 10.9 reg 25 …. 11.6 reg 51 …. 18.40 reg 54 …. 11.6 reg 67 …. 11.6 reg 81 …. 11.39 reg 85A …. 11.34, 11.38 reg 85B …. 11.34 reg 95 …. 10.16 reg 97A …. 18.40 reg 136D …. 18.40 reg 164A …. 18.40

reg 192(3) …. 11.38 reg 196 …. 11.34 reg 226 …. 11.20 reg 228 …. 11.4 reg 243 …. 11.32, 11.40 reg 268R …. 11.34 Sch 1 …. 10.13, 11.6 Sch 1 Pt 1 …. 10.10 Sch 1 reg 2(1)(e) …. 11.34 Sch 1 reg 2A …. 18.40 Sch 2 …. 11.9, 11.13, 11.34, 11.38 Sch 2 cl 7(1)(f) …. 8.54 Sch 2 Pt 3 …. 11.13 Sch 2 reg 3(8) …. 11.38 Sch 2 reg 4 …. 11.33 Sch 2 reg 5 …. 11.38 Sch 2 regs 5–7 …. 11.38 Sch 2 reg 7(2) …. 11.38 Sch 2 reg 7(3) …. 11.38 Sch 3 …. 7.13, 11.8, 11.16 Sch 3 cl 15 …. 16.43 Sch 3 Pt 1 cl 19 …. 11.18 Sch 3 Pt 2 cl 35 …. 11.19 Sch 3 Pt 2 cl 36 …. 11.19 Environmental Trust Act 1998 s 15 …. 16.36 s 16 …. 16.36 Environmentally Hazardous Chemicals Act 1985 …. 16.15

ss 36A–36J …. 15.81 Evidence Act 1995 s 141(1) …. 20.31 Fauna Protection Act 1948 s 19 …. 5.44 Filming Approval Act 2004 s 5 …. 7.22 Fines Act 1996 s 6 …. 20.116 Fisheries Management Act 1994 …. 11.16, 13.20, 14.37, 14.86, 19.62 Pt 2 …. 18.43 Pt 3 …. 7.39, 18.47 Pt 7 …. 18.9 Pt 7 Div 2 …. 18.9 Pt 7A …. 18.9 s 3 …. 18.9 s 7D …. 9.17 s 7E …. 18.18 s 8 …. 11.23 s 30(2) …. 18.9 s 34O …. 2.19 s 57 …. 18.43 s 71 …. 18.47 s 104 …. 18.47 s 115 …. 18.48 s 192 …. 12.67 s 193 …. 12.67 s 197A …. 12.67

s 205 …. 12.76, 20.65 s 220D …. 14.79 s 220F …. 14.79 s 220G …. 14.79 s 220H …. 14.79 s 220N …. 14.79 s 220O …. 14.86 s 220P …. 14.79 s 220Q …. 14.79 s 220T …. 10.19 s 220V …. 14.79 ss 220ZA–220ZG …. 14.81 s 220ZD …. 14.81 s 220ZI …. 14.79 s 220ZJ …. 14.79 s 220ZP …. 14.79, 14.90 s 220ZS …. 14.79 s 220ZT …. 14.79 s 220ZU …. 14.79 s 220ZV …. 14.79 s 220ZZ …. 14.80 s 221A …. 14.80 s 221B …. 11.31 ss 221I–221U …. 14.83 s 221IE …. 14.80 ss 221J–221N …. 14.94 s 279 …. 20.65 Schs 4–6 …. 14.79

Forestry Act 1916 …. 3.39, 12.69 s 25A …. 12.69 Forestry Act 2012 …. 14.41, 19.37 Pt 5A …. 9.29, 18.76 Pt 5B …. 9.29, 18.76 s 16 …. 12.66 s 18 …. 12.66, 18.76 s 18(2) …. 12.66 s 19 …. 12.66 s 21 …. 18.76 s 25 …. 12.66 s 44 …. 12.66, 14.41 s 59(1)(c) …. 12.66 s 59(2) …. 12.66 s 59(2)(b) …. 12.66, 14.41 s 69B …. 18.76 s 69B(1) …. 9.29 s 69B(2) …. 9.29, 18.76 s 69B(3) …. 9.29 s 69C …. 18.76 s 69L …. 18.76 s 69O …. 18.76 s 69S …. 20.11 s 69V …. 9.29 s 69W …. 11.23 ss 69W–69Z …. 9.29 s 69ZA …. 19.37, 22.25 Forestry and National Park Estate Act 1998 …. 12.45, 12.69

Pt 4 …. 12.70 s 36 …. 11.2, 11.21, 18.76 s 37 …. 18.76 Sch 1 …. 12.45 Sch 2 …. 12.45 Freedom of Information Act 1989 …. 22.24 Heritage Act 1977 s 136 …. 20.4 s 161 …. 20.8 Interpretation Act 1987 s 6 …. 7.14 s 33 …. 2.65, 7.21, 7.27 s 34 …. 2.66, 7.15 s 34(2)(d) …. 4.44 Land Acquisition (Just Terms Compensation) Act 1991 …. 2.28 Land and Environment Court Act 1979 …. 2.72, 21.36 s 17(d) …. 10.70 s 20 …. 19.39 s 23 …. 21.4 s 34 …. 22.13 s 38(2) …. 19.55 s 39(2) …. 10.48, 13.45 s 39(4) …. 8.31 s 39(6) …. 13.48, 13.49 s 39A …. 19.56, 22.3 s 64 …. 19.54 s 69 …. 21.23 Land and Environment Court Rules 2007

r 3.7 …. 22.10 r 3.7(3) …. 22.10 r 3.8 …. 22.13 r 4.2 …. 21.37 r 4.2(1) …. 21.23 r 4.2(2) …. 21.42 r 4.2(3) …. 21.13 r 4.3 …. 22.23, 22.49 r 12 …. 22.11 Local Government Act 1993 …. 2.44, 10.9, 10.17 s 7 …. 2.44 s 68 …. 10.17 s 89 …. 2.44, 10.17 s 124 …. 3.54 s 125 …. 3.24, 3.54, 15.96 ss 731–733 …. 20.81 s 733 …. 3.38, 3.40, 3.43, 17.51 s 733(2) …. 18.56 s 733(3)(b) …. 18.56 s 733(3)(f) …. 18.56 s 733(3)(f2–f6) …. 18.56 s 733(3)(f3–f6) …. 17.51 s 733(3)(f6) …. 3.45 s 733(4) …. 3.43 s 733(5) …. 3.43 Local Government (Approvals) Amendment (Sewage Management) Regulation 1998 …. 3.33 Local Land Services Act 2013 …. 9.64 Pt 4 Div 1 …. 9.64

Pt 4 Div 2 …. 9.64 s 3 …. 9.64 s 14 …. 9.64 s 29 …. 9.64 s 29(1)(e) …. 9.64 Marine Estate Management Act 2014 …. 12.59 s 7 …. 12.59 s 8 …. 12.59 s 22 …. 12.59 s 23 …. 12.59 s 23(4) …. 12.59 s 32 …. 12.59 s 33 …. 12.59 s 34 …. 12.59 s 35 …. 12.59 s 36 …. 12.59 s 79 …. 12.59 Marine Pollution Act 1987 …. 15.114 s 8 …. 20.41 s 8(1) …. 15.126 s 18 …. 20.54 Marine Pollution Act 2012 …. 7.19, 15.114 ss 12–17 …. 15.126 ss 18–25 …. 20.41 s 19 …. 7.19 ss 32–41 …. 20.41 s 48 …. 20.41 s 49 …. 20.41

ss 56–59 …. 20.41 ss 63–66 …. 20.41 Marine Pollution Regulation 2014 …. 15.114 Mining Act 1992 s 127 …. 2.19 s 237 …. 18.6, 18.59 s 238 …. 18.6, 18.59 s 239 …. 18.59 ss 240–240D …. 18.59 s 246N …. 18.60 s 246P …. 7.30 s 378ZE …. 18.60 s 379 …. 9.6 s 379AA …. 9.6 s 380A …. 8.31 Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 s 3 …. 2.39 Mining Regulation 2010 cl 62 …. 5.41 cl 63 …. 5.41 Sch 6 …. 5.41 National Environment Protection Council (NSW) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6

s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Wildlife Act 1974 (NPWA) …. 12.45, 12.61, 12.69, 13.21, 14.37, 14.38, 14.41, 14.64, 14.82, 21.22, 22.53 Pt 4A …. 12.68 Pt 6A …. 20.4 Pt 8A …. 13.21 s 2A …. 7.27, 8.78 s 2A(2) …. 7.26, 8.28 s 2A(3) …. 7.22 s 5 …. 14.37 s 30A …. 12.45 s 30B …. 12.45 s 30C …. 12.45 s 30D …. 12.45 s 30E …. 12.45 ss 30E–30K …. 12.45 s 30J …. 12.45 s 33 …. 7.52 s 39 …. 12.75 s 39(3) …. 12.75 s 39(4) …. 12.75 s 41 …. 12.69, 18.5, 18.62 s 41(1) …. 12.69 s 54 …. 12.69, 18.62 s 58 …. 12.75 s 58F …. 12.73 s 58O …. 12.69, 18.62

s 58S …. 12.73 s 61 …. 12.46 s 61(4) …. 12.46 s 61A …. 12.46 s 64 …. 12.69, 18.62 ss 69A–69KA …. 12.47 s 69B …. 7.47 s 69B(1A) …. 7.47 s 70 …. 12.76 s 71 …. 12.76 s 72 …. 12.67 s 72(2) …. 9.17, 12.73 s 72(2a) …. 12.73 s 72(4) …. 9.17 s 75 …. 9.20, 12.67 s 75(5) …. 12.73 s 81(3a) …. 12.73 s 86 …. 11.90 s 90 …. 7.27, 8.78, 22.57 ss 91AA–91FF …. 14.42 s 91A …. 20.4 ss 91A–91I …. 12.47, 14.42 ss 91J–91T …. 12.76 s 97 …. 3.8 s 99(3) …. 14.38 s 118A …. 14.81 ss 118A–118E …. 14.81 s 118A(3)(b) …. 14.98

s 118D …. 14.81, 14.82, 20.115, 21.5 s 118D(b)(i) …. 14.98 s 120 …. 11.31 s 132C …. 11.31 ss 145–148 …. 12.42 s 151 …. 12.73 s 152 …. 12.73 s 153 …. 12.74 s 175B …. 20.59 s 205(1)(c) …. 14.82 Sch 11 …. 14.37 Sch 13 …. 14.41 Sch 14 …. 12.68 National Parks and Wildlife Act 1994 s 90 …. 20.117 s 194 …. 20.93 National Parks and Wildlife Regulation 2009 …. 14.64 regs 72–75 …. 14.64 National Parks Estate Act 1998 …. 19.39 National Trust of Australia Act 1990 s 25 …. 7.47 Native Vegetation Act 2003 (NVA) …. 5.34, 5.35, 9.24, 9.64, 10.21, 13.4, 13.16, 13.17, 13.21, 13.43, 13.44, 13.56, 13.57, 18.15 Pt 4 …. 7.42, 7.48, 13.21 s 5 …. 10.21 s 5(1)(c) …. 13.56 s 6 …. 10.21 s 7 …. 10.21 s 8 …. 13.21

ss 8–10 …. 13.56 s 9 …. 13.18, 13.21 s 9(1)(h) …. 13.21 s 11 …. 13.18 s 12 …. 7.48, 10.21, 18.15 ss 12–14 …. 13.21 s 12(1) …. 13.17 s 12(1)(b) …. 10.21 s 13 …. 10.21 s 14 …. 9.4, 10.6, 10.21 ss 18–24 …. 10.21 s 19 …. 13.18 s 20 …. 13.17 s 22 …. 13.18 s 24 …. 13.18 s 25 …. 7.19 s 25(f) …. 10.21 ss 26–32 …. 10.21 s 27 …. 7.47, 9.64 s 28(d) …. 9.64 s 29 …. 13.56 s 29(2) …. 13.21 s 31 …. 7.46 s 35 …. 20.28 s 36 …. 7.23, 20.28, 20.66 s 37 …. 20.4 s 38 …. 13.21, 20.4 s 41 …. 21.2

Sch 1 …. 10.21 Sch 1 Pt 3 …. 13.56 Sch 3 …. 10.21 Native Vegetation Conservation Act 1997 (NVCA) …. 6.46, 10.21, 13.16, 13.17, 13.18, 21.22 s 4(1) …. 13.17 s 5(4) …. 13.18 s 6 …. 13.17 s 12 …. 20.114 s 13 …. 13.16 s 15 …. 7.35 s 21(2) …. 20.114 s 44 …. 13.16 Native Vegetation Regulation 2013 Pt 4 …. 13.21 Pt 5 …. 13.21 Pt 6 …. 13.18 Pt 6 Div 3 …. 13.19 reg 3 …. 13.56 reg 18 …. 13.21 reg 18(1)(b) …. 13.21 reg 19 …. 13.21 reg 20 …. 13.19 reg 22 …. 13.21 reg 22(4) …. 13.21 reg 62 …. 13.18 Natural Resources Commission Act 2003 …. 9.64 s 13 …. 2.36 s 126B …. 14.97

s 126C …. 14.97 Nature Conservation Trust Act 2001 s 7 …. 12.47 Non-Indigenous Animals Act 1987 …. 2.47 Noxious Weeds Act 1993 …. 20.7 Offshore Minerals Act 1999 s 38A …. 18.62 s 38B(1) …. 18.59 s 38B(2) …. 18.59 Olympic Co-Ordination Authority Act 1995 …. 10.68 Ozone Protection Act 1989 …. 15.133 Pesticides Act 1999 s 69(3) …. 15.41 Petroleum (Offshore) Act 1982 …. 18.59 Petroleum (Onshore) Act 1991 s 6 …. 9.6 s 24A …. 8.31 s 75 …. 18.59 Plantations and Reafforestation Act 1999 …. 13.20 s 15 …. 14.94 Pollution Control Act 1970 s 17 …. 20.33 s 17d(1) …. 20.33 Prevention of Cruelty to Animals Act 1979 …. 19.37 Protection of the Environment Administration Act 1991 Pt 3 …. 18.76 Pt 4 …. 18.76 Pt 6 …. 18.76

s 6 …. 7.22 s 6(2) …. 8.19, 8.56 s 6(2)(a) …. 8.62 s 6(10)(a) …. 22.63 s 12A …. 11.23, 11.31 ss 13–15 …. 18.76 Protection of the Environment Operations Act 1997 …. 7.19, 11.33, 15.60, 15.109, 15.113, 16.15, 17.41, 20.19, 20.26, 20.48 Ch 5 Pt 5.2 …. 15.109, 20.26 Ch 5 Pt 5.3 …. 20.26 Ch 7 …. 20.28 Ch 8 Pt 8.2 …. 15.109 Ch 8 Pt 8.2 Div 4 …. 15.113 Dictionary …. 15.20, 15.24, 15.25, 15.109, 16.15, 16.16, 17.41, 20.35 Pt 2 …. 16.43 Pt 5.6A …. 16.18 Pt 9.3 …. 7.45, 15.43 Pt 9.3A …. 7.45, 15.43 Pt 9.3B …. 7.43, 7.45, 15.18, 15.43 Pt 9.3C …. 15.43 Pt 9.4 …. 15.43 s 3(a) …. 22.63 s 4 …. 20.69 s 5 …. 15.59 s 6 …. 15.30 s 6(2) …. 15.60 s 6(4) …. 15.60 s 7 …. 7.19 s 7(3) …. 7.19

s 9 …. 15.53 ss 10–41 …. 15.38 s 11(3) …. 15.15 s 11(4) …. 15.38 s 11(4)(e) …. 16.2 s 13 …. 22.63 s 13(1)(d) …. 15.15 ss 14–24 …. 15.40 s 22(1) …. 15.15 s 22(3) …. 15.40 s 27 …. 15.40 s 28 …. 15.39 ss 29–32 …. 15.39 s 35 …. 15.38 s 35(d) …. 15.40 s 38 …. 15.40 s 41 …. 15.40 s 43 …. 15.59 s 43(d) …. 15.59 s 44 …. 15.58 s 45 …. 15.63, 15.66, 22.63 s 45(a) …. 15.39 s 45(d) …. 15.71 s 47 …. 15.58 ss 47–49 …. 15.59, 15.111 s 50 …. 15.61 s 51 …. 15.61 s 54 …. 15.64

s 58 …. 15.63 s 58(6) …. 15.61 s 59E …. 15.110 s 63 …. 15.75 s 64(1) …. 15.111 s 64(2) …. 15.111 ss 65–76 …. 15.75 s 66 …. 15.65 ss 66–68 …. 15.75 s 66(4) …. 15.65 s 66(5) …. 15.65, 15.75 s 67 …. 7.30, 15.43, 15.81 s 67AA …. 15.110 s 68 …. 15.43, 15.46 s 69 …. 15.43 s 69(d) …. 15.43 s 70 …. 15.43, 15.77 s 75 …. 16.18 s 75(1) …. 16.2 s 75(2) …. 15.46, 16.2 s 76 …. 16.2, 16.18 s 77 …. 15.62 s 78 …. 11.33, 15.61, 15.62 s 78(5) …. 15.61 s 79 …. 15.79 ss 79–83 …. 15.63 s 79(1) …. 15.79 s 79(5) …. 15.63

s 79(5)(b) …. 15.79 s 79(5)(f) …. 15.79 s 80 …. 15.79 s 80(1) …. 15.79 s 81(1) …. 15.79 s 82 …. 15.63 s 82(1) …. 15.79 s 83 …. 15.79 s 84 …. 15.89 s 88 …. 16.6 ss 89–113 …. 15.91 s 90 …. 15.91, 20.4 s 91 …. 15.91 ss 91–94 …. 20.4 s 91(2) …. 15.101 s 91(4) …. 15.92 s 91(5) …. 15.92 s 92 …. 15.91 s 93 …. 15.91, 15.101 s 93(4) …. 15.92 s 95 …. 15.91 s 96 …. 15.91 s 96(3) …. 15.91 s 97 …. 15.92, 15.111 s 101 …. 15.91 s 102 …. 15.92, 15.111 s 104 …. 15.92 ss 104–107 …. 15.98

ss 105–107 …. 20.7 s 107(4) …. 15.98 s 114 …. 15.109 s 114(1) …. 15.109 s 114(2) …. 15.109 s 114(3) …. 15.109 s 115 …. 15.26, 15.109, 20.47 ss 115–117 …. 20.43, 20.45 s 115(1)(b) …. 20.51 s 116 …. 15.109 s 116(1)(b) …. 20.51 s 116(2) …. 20.63 s 117 …. 15.109 s 118 …. 20.71 s 120 …. 7.9, 15.36, 15.109, 20.31, 20.35, 20.49 s 120(1) …. 20.43 s 120(2) …. 20.43 s 120(3) …. 20.43 s 121 …. 20.81 s 121(1) …. 20.31 s 122 …. 15.59, 20.31, 20.81 s 133 …. 15.93 ss 133–135 …. 15.93 s 134 …. 15.93 s 143 …. 16.18, 20.26 s 144 …. 16.17, 20.26, 20.65 s 144(1) …. 20.49 s 147 …. 15.28, 15.65

s 147(1)(b) …. 15.28 s 148 …. 15.37, 15.65 s 148(2) …. 15.37 s 151 …. 15.37 s 152 …. 15.37 ss 153A–153F …. 15.37 s 161 …. 15.93 s 162 …. 15.93 s 168 …. 20.64 s 169 …. 20.59, 20.86 s 169(1) …. 20.35 s 169(2) …. 20.59 s 169(4) …. 20.55, 20.57 s 172 …. 15.80, 20.69 s 173 …. 15.87 ss 174–176 …. 15.81 s 174(3)(e) …. 15.86 s 178 …. 15.83 s 179 …. 15.83 s 180 …. 15.85 s 181 …. 15.85 ss 181–183 …. 20.69 s 182 …. 15.85 s 193 …. 20.29 s 214(1) …. 20.26 s 216(6) …. 20.26 s 217(2) …. 20.25 s 218A …. 20.25

s 219 …. 15.113, 19.41, 21.3 s 222 …. 15.109 ss 222–229 …. 20.9 s 230 …. 15.113 ss 230–231 …. 21.5 ss 230–240 …. 15.98 s 231 …. 15.98, 15.113 ss 232–235 …. 15.113 s 238(1) …. 15.111 s 241 …. 20.93 s 243 …. 15.112 s 244(2) …. 15.112 s 245 …. 15.99, 15.112, 20.116 s 246 …. 3.54, 15.98, 20.10, 20.116, 21.21 s 246(1)(a) …. 15.112 s 246(1)(b) …. 15.112 s 247 …. 3.54, 15.98, 20.10, 20.116, 21.21 s 247(1)(a) …. 15.112 s 247(1)(b) …. 15.112 s 248 …. 20.30 s 249 …. 15.113, 20.116, 20.119, 21.21 s 250 …. 20.116 s 250(1)(a) …. 15.112 s 250(1)(b) …. 15.112 s 250(1)(c) …. 15.112 s 252 …. 19.39, 21.2 s 252(1) …. 15.113 s 252(2) …. 15.113

s 252(6) …. 21.4 s 252(7) …. 21.4 s 253 …. 19.39, 21.2 s 253(4) …. 21.4 s 253(5) …. 21.4 s 253A …. 15.99, 20.19 s 256 …. 20.31 s 257 …. 20.30, 20.54 s 261 …. 20.30 s 262 …. 20.30 ss 263–283 …. 15.93 s 264 …. 15.93 s 268 …. 15.24, 15.93 s 269 …. 15.24 s 270 …. 15.93 s 276 …. 15.24, 15.93 s 277 …. 15.24 s 278 …. 15.93 ss 284–286 …. 15.78 ss 287–292 …. 15.88 s 287(3) …. 15.62 s 289 …. 20.4 ss 293–295X …. 15.72 ss 295A–295L …. 15.72 s 295B …. 15.73 ss 295M–295X …. 15.72 s 295O …. 15.74 s 295Y …. 15.82

s 295Z …. 15.82 ss 296–307 …. 15.77 s 299 …. 15.77 s 300 …. 15.77 ss 302–303 …. 15.77 s 303(8) …. 15.77 s 305 …. 15.77 s 308 …. 15.61 s 309 …. 15.61 s 318 …. 15.59 s 319A …. 15.92 s 322 …. 3.16 s 323 …. 2.56 s 323(2) …. 16.2 Sch 1 …. 15.59, 16.15 Sch 1 Pt 1 cl 15 …. 16.43 Sch 1 Pt 1 cl 15A …. 16.43 Sch 1 Pt 3 …. 16.15 Sch 2 cl 5A …. 16.2 Sch 3 …. 18.7 Protection of the Environment Operations (Clean Air) Regulation 2010 …. 15.24 Protection of the Environment Operations (General) Regulation 1998 …. 8.84 Protection of the Environment Operations (General) Regulation 2009 cl 60 …. 15.43 regs 13–35 …. 15.72 regs 42–45 …. 15.72 Sch 5 …. 15.24

Sch 6 …. 15.109 Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 …. 15.73 Protection of the Environment Operations (Noise Control) Regulation 2008 cl 13 …. 15.24 Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2008 …. 16.25 Protection of the Environment Operations (Waste) Regulation 2005 cl 3A …. 16.15 cl 3B …. 16.15 cl 46J …. 16.10 cl 46K …. 16.10 Pt 2 …. 5.23 Pt 3 …. 16.18 Pt 4 …. 16.15 Pt 5 …. 16.15 Pt 5A …. 16.2 reg 46B …. 16.1 reg 46C …. 16.1 reg 47 …. 16.17 reg 48 …. 16.18 reg 49 …. 16.18 Protection of the Environment Operations (Waste) Regulation 2014 …. 16.33 cl 6 …. 16.15 cl 6 …. 16.15 cl 92 …. 16.15 cl 113 …. 16.15 Pt 2 …. 16.6

Pt 8 …. 16.10 reg 92 …. 16.3 Protection of the Environment (Underground Petroleum Storage Systems) Regulation 2014 …. 16.30 Radiation Control Act 1990 …. 15.131 s 7 …. 15.131 s 8 …. 15.131 Rivers and Foreshores Improvement Act 1948 Pt 3A …. 13.20 Roads Act 1993 s 88 …. 7.16, 7.17, 7.19, 11.21, 13.20, 21.33 Rural Fires Act 1997 …. 13.20 s 3(d) …. 13.20 s 9(3) …. 13.20 s 96 …. 11.31 s 100C …. 13.20 s 100P …. 13.21 s 100R …. 13.21 s 128 …. 3.43 Soil Conservation Act 1938 s 15A …. 18.77 s 17 …. 18.77 s 18 …. 18.77 s 21C …. 20.52 Species Conservation Act 1997 …. 13.20 State Environmental Planning (Permissible Mining) Act 1996 …. 10.53 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 …. 18.40 State Environmental Planning Policy (Mining, Petroleum Production and

Extractive Industries) 2007 …. 18.62, 18.66 cl 14 …. 17.55, 17.56 cl 17B …. 18.66 cl 17H(4) …. 18.66 Pt 4AA …. 9.65, 18.66 reg 7 …. 7.17 s 12AA(3) …. 8.39 s 12AA(4) …. 8.39 s 14(2) …. 8.77 s 17B …. 9.65 s 17H …. 9.65 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 …. 18.59 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Significance of Resource) 2015 …. 18.59 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 …. 8.47 State Owned Corporations Act 1989 s 37A(4) …. 11.16 s 37A(5) …. 11.16 Subordination Legislation Act 1989 …. 15.40 Supreme Court Act 1970 s 76(1) …. 19.45 Supreme Court Rules 1970 Pt 39 r 1 …. 22.11 r 28.7 …. 21.13 Sydney Harbour Foreshore Authority Act 1998 s 12 …. 10.68

s 15 …. 10.68 Sydney Harbour Tunnel (Private Joint Venture) Act 1987 s 8(2) …. 10.66 Sydney Water Catchment Management Act 1998 s 53 …. 18.7 Threatened Species Conservation Act 1995 …. 7.29, 9.24, 10.17, 10.20, 11.16, 11.35, 11.36, 11.37, 14.38, 14.85, 14.86, 14.97, 18.62 Pt 5 …. 14.92 Pt 7 Div 1 …. 20.4 Pt 7 Div 5 …. 11.2 Pt 7AA …. 11.2 Pt 7A …. 3.10, 13.57 s 4(1) …. 10.19 s 5B …. 11.36 ss 10–14 …. 14.79 s 14(4) …. 11.37 s 17(1) …. 14.79 s 18 …. 14.79 s 21(1A) …. 14.86 s 21(3) …. 14.86 s 22 …. 14.87 ss 26–36 …. 14.79 s 27 …. 14.86 s 28 …. 14.86 s 37 …. 14.79 s 38 …. 14.79 s 40 …. 14.89 s 44 …. 14.89 s 47 …. 10.19, 14.89

s 48 …. 14.89 s 50 …. 7.32, 14.79 s 56 …. 9.20, 14.79 s 65 …. 14.79, 14.90 s 66 …. 14.90 s 69 …. 7.32, 14.79 ss 69–73 …. 7.29, 14.79 s 74 …. 9.20, 14.79 ss 77A–77C …. 11.36 s 77C …. 11.36 s 79B(4) …. 11.36 s 79B(5) …. 11.36 s 79B(6) …. 11.36 s 79B(7) …. 11.36 s 83 …. 14.90 s 86 …. 14.79 ss 86–90 …. 7.29, 14.79 s 90A …. 14.92 ss 90A–90E …. 14.79, 14.92 s 91 …. 7.32 s 94 …. 14.79 s 97 …. 14.79 s 99 …. 11.31 s 106 …. 22.3 ss 109–113 …. 11.35 s 110 …. 10.19, 11.35, 11.38 s 110(4) …. 11.99 s 111 …. 11.13, 11.38

s 111(4) …. 11.35 s 113 …. 11.35, 11.99 s 113B …. 11.31 ss 114–120 …. 14.83 ss 121–126 …. 7.48 s 126B …. 14.97 ss 126B–126N …. 8.47, 14.97 ss 126B–126O …. 9.24 s 126C …. 14.97 s 126D …. 11.37, 14.97 s 126I …. 11.37, 14.97 s 126N …. 14.95 s 127A …. 13.57 s 127B …. 6.33 s 127G …. 13.57 s 127J …. 13.57 s 127K …. 13.57 s 127L …. 13.57 s 127N …. 13.57 s 127P …. 13.57 s 127S …. 13.57 s 127U …. 13.57 ss 127V–127Y …. 13.57 ss 127Z–127ZC …. 13.57 s 127ZK …. 13.58 s 127ZL(3) …. 13.58 s 127ZL(4) …. 13.58 s 127ZM …. 13.58

s 127ZN …. 13.59 s 127ZO …. 11.37, 13.59 s 127ZP …. 11.37 s 127ZZ …. 13.58 s 127ZZG …. 13.59 s 127ZZI …. 11.99 s 127ZZN …. 7.30 Sch 1 …. 10.19 Schs 1–3 …. 14.79 Sch 1A …. 10.19 Sch 2 …. 10.19 Sch 3 …. 14.87 Threatened Species Conservation (Biobanking) Regulation 2008 regs 3–10 …. 13.57 Threatened Species Conservation Regulations 2010 Pt 2 …. 14.79 Trees (Disputes Between Neighbours) Act 2006 …. 3.15 Pt 2A …. 3.15 s 5 …. 3.15 Uniform Civil Procedure Rules 2005 …. 21.22, 21.45 Pt 40 r 40.6 …. 21.22 Pt 40 Div 2 r 40.6(2) …. 21.22 r 1.7 …. 21.29 r 42(1) …. 21.29 s 42.4 …. 21.37 r 42.21(1)(e) …. 21.42 r 50.8 …. 21.42 r 51.50 …. 21.42

r 59.11 …. 21.42 Sch 2 …. 21.29 Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 …. 15.131, 18.68 Walsh Bay Development (Special Provisions) Act 1999 …. 10.68 Waste Avoidance and Resource Recovery Act 2001 …. 16.2 s 3 …. 16.1 s 4 …. 16.15 s 12 …. 16.1 s 15 …. 7.5, 16.5 ss 15–18 …. 16.7 s 15(3) …. 16.5 s 17 …. 16.7 Waste Avoidance and Resource Recovery Strategy 2006 …. 16.1 Water Act 1912 …. 5.36, 13.20, 19.27, 19.39 Water Administration Act 1986 s 11 …. 9.74 s 19 …. 3.41 Water Administration Act 2000 …. 3.42 Water Board (Corporatisation) Act 1994 Ch 3 …. 7.38 s 3 …. 7.31 s 22 …. 22.63 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2005 …. 18.38 Water Industry Competition Act 2006 s 7 …. 18.40 s 41 …. 18.40 Water Management Act 2000 …. 5.36, 9.64, 9.73, 11.2, 13.20, 18.18

Pt 3 …. 7.35 s 3 …. 9.1, 18.20 s 5 …. 9.73, 18.18 s 6 …. 18.25 s 7(3) …. 18.24 s 8 …. 7.39 s 8(1)(a) …. 18.23 s 8(1A) …. 18.23 s 8(2) …. 18.23, 18.25 s 8(4) …. 18.23 ss 8B–8E …. 18.23 s 9 …. 9.73, 18.18 s 9(1)(b) …. 22.70 s 9(2) …. 18.25 ss 11–15 …. 18.25 s 17 …. 18.25 s 18 …. 18.25 s 20 …. 18.24 s 20(1) …. 18.25 ss 22–24 …. 18.25 s 23 …. 9.73, 18.18 ss 25–27 …. 18.25 s 26 …. 9.73, 18.18 ss 28–30 …. 18.25 s 29 …. 9.73, 18.18 ss 31–33 …. 18.25 s 34 …. 9.64, 18.7, 18.15, 18.25 s 34(1)(f) …. 18.7

s 38 …. 9.20 s 39 …. 9.20 s 41 …. 18.25 s 41(2) …. 18.25 s 49A …. 18.22 s 50 …. 18.25 s 52 …. 3.14 ss 52–54 …. 18.20 s 56 …. 18.23 s 57 …. 18.29 s 58 …. 18.29 s 58(3) …. 18.29 s 63 …. 18.29 s 71M …. 3.11 s 71Z …. 18.29 s 79 …. 2.26 ss 86–87A …. 18.29 s 87 …. 2.26 s 87AA …. 2.26 s 87A …. 2.26 s 89 …. 18.23 s 96 …. 18.29 s 392 …. 3.8, 9.6, 18.20 s 393 …. 3.14, 18.20 s 398 …. 3.42 Water Management (General) Regulations 2004 reg 33 …. 18.29 Water NSW Act 2014

Pt 4 …. 9.64 s 6 …. 9.63 s 7 …. 9.64 Water Savings Order 2005 reg 5 …. 18.39 Sch 1 …. 18.39 Sch 2 …. 18.39 Western Lands Act 1901 …. 13.64 s 2 …. 8.26 s 2(e) …. 8.26 s 2A …. 9.12 s 18D …. 13.64 s 18D(1)(d) …. 9.14 s 18DB …. 13.64 Sch B …. 9.12 Western Land Regulations 1992 …. 13.64 Wilderness Act 1987 …. 12.45 s 6(1) …. 12.46 s 6(2) …. 12.46 s 7 …. 12.46 s 8 …. 12.46 ss 16–19 …. 12.73

Northern Territory Aboriginal Land Rights (Northern Territory) Act 1976 s 71 …. 12.34 Civil and Administrative Tribunal Act 2014 …. 2.72 Crown Lands Act 1992 …. 9.7 s 37(1)(h) …. 13.65

s 37(2) …. 14.65 s 79(9)(g) …. 13.65 s 102 …. 13.65 Environment Protection (Beverage Containers and Plastic Bags) Act 2011 …. 7.6, 16.9, 16.12 s 51 …. 16.12 s 52 …. 16.12 s 57 …. 16.12 Environment Protection (Beverage Containers and Plastic Bags) Regulations 2011 …. 16.9 Environmental Assessment Act 1982 …. 10.46, 11.4, 11.57 s 3 …. 11.57 s 4 …. 11.57 s 7 …. 11.6 s 10 …. 11.12 Environmental Offences and Penalties Act 1996 …. 15.105 s 6 …. 15.111 s 7 …. 15.111 Fire and Emergencies Act 1996 s 9 …. 7.16 Fisheries Act 1988 …. 2.15, 14.65 s 15 …. 15.93 Marine Pollution Act 1999 …. 15.114 s 14 …. 15.126 McArthur River Project Agreement Ratification Act 1992 …. 10.65, 15.78 Mining Act 1980 s 176A …. 18.59 National Environment Protection Council (NT) Act 1994 …. 15.3 s 4 …. 15.25

s 6(1) …. 15.4 s 14 …. 15.37 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 Parks and Reserves (Framework for the Future) Act 2003 …. 12.50 s 3 …. 12.50 s 8 …. 12.50 s 10(1) …. 12.50 s 16 …. 12.50 Schs 1–5 …. 12.50 Pastoral Land Act 1992 …. 9.7 s 38(2) …. 14.65 Petroleum Act s 15 …. 18.59 Planning Act 1992 …. 13.65 s 3 …. 10.2 s 4 …. 9.33, 13.65 s 7 …. 9.61 s 8 …. 9.61 s 38(1)(k) …. 13.65 s 38(1)(m) …. 13.65 s 39 …. 13.65

ss 111–116 …. 10.70 Planning Act 1999 …. 10.2 Pt 7A …. 10.46 s 9 …. 10.46 s 9(1)(a) …. 10.3 s 26 …. 10.46 s 32 …. 10.46 s 38(2) …. 10.3 s 42 …. 10.3 s 46(3) …. 10.10 s 47A …. 10.9 s 50A(2)(b) …. 10.46 s 50B …. 10.46 s 50C …. 10.46 s 51 …. 10.10, 10.45 s 52 …. 10.46 s 52(3) …. 10.3 s 57A …. 10.46 s 57B …. 10.46 s 117 …. 19.5, 19.23 Planning Regulations 2000 …. 10.2 reg 6 …. 10.9 reg 8A …. 10.9 reg 8B …. 10.9 Protection of the Environment (Waste) Regulation 2005 Pt 5B …. 15.13 Radiation Protection Act 2004 …. 15.130 s 11 …. 15.131

Summary Offences Act 1923 s 5 …. 15.24, 15.96 s 53A …. 15.96 s 53B …. 15.96 s 53D …. 15.24 Territory Parks and Wildlife Conservation Act 1976 …. 12.50, 12.67 Pt III …. 12.68 s 9 …. 14.43 s 11 …. 12.50 s 12 …. 12.50 s 14 …. 12.73 s 17 …. 12.69, 12.75 s 18 …. 12.67 ss 25AA–25AR …. 12.50 s 25A …. 12.50 s 25F …. 14.43 s 25G …. 14.43 s 26A …. 14.79 s 28 …. 14.43 s 29 …. 14.43 s 30 …. 14.79 s 31 …. 14.43 s 35 …. 12.68 s 36 …. 12.68 ss 37–42 …. 14.79 ss 42–44 …. 7.36 s 43 …. 14.43 ss 44–46 …. 14.43

ss 47–51 …. 14.43 ss 52–54 …. 14.43 ss 55–63 …. 14.43 s 66 …. 14.43 s 67 …. 14.43 s 67A …. 14.43 s 67B …. 14.43 s 73 …. 12.68, 14.65 s 74 …. 12.50 s 74A …. 12.50 s 93 …. 14.65 s 122 …. 14.65 Territory Parks and Wildlife Conservation Regulations cl 2 …. 14.43 cl 3 …. 14.43 Sch 1 …. 14.43 Trans-Tasman Mutual Recognition (Temporary Exemption for Beverage Containers) Regulations 2011 …. 7.6, 16.9 Trans-Tasman Mutual Recognition (Temporary Exemption for Prohibited Plastic Bags) Regulations 2011 …. 7.6, 16.12 Waste Management and Pollution Control Act 1998 …. 10.46, 15.105 Pt 6 …. 15.43 Pt 7 …. 15.43 Pt 8 …. 15.43 s 4 …. 15.26, 15.29, 15.33 ss 4–7 …. 15.105 s 4(1) …. 20.69 s 4(2) …. 15.28 s 9 …. 15.61

s 12 …. 15.35 s 12(2) …. 15.35 s 12(3) …. 15.36 s 13 …. 15.36, 15.42 ss 15–29 …. 15.38 s 16 …. 15.38 s 17(2) …. 15.38 s 18 …. 15.38 s 19 …. 15.40 s 20 …. 15.40 s 22 …. 15.15 s 23 …. 15.15 s 26(1) …. 15.63 s 27 …. 15.40 s 28 …. 15.40 s 29 …. 15.88 s 30 …. 15.59, 15.88, 15.111 s 30(2) …. 15.57 s 31 …. 15.59 s 32 …. 15.66 s 32(1)(b) …. 15.39 s 32(1)(h) …. 15.33 s 32(2) …. 15.61 s 33 …. 15.66 s 34 …. 15.63 s 35 …. 15.75 s 35(2) …. 15.39 s 35(3) …. 15.75

s 36 …. 15.77 s 36(3) …. 15.77 s 36(4) …. 15.77 s 39(1) …. 15.111 s 39(2) …. 15.111 s 40 …. 15.62 s 41 …. 15.57, 15.62 s 43(3) …. 15.79 s 45 …. 15.63, 15.79 s 45(1) …. 15.79 s 45(1)(d) …. 15.79 s 46 …. 15.64 s 47 …. 15.80, 20.69 s 48 …. 15.81 s 49 …. 15.81 s 54 …. 15.85 s 55 …. 15.43 s 56 …. 15.46 s 57 …. 15.47 s 58 …. 15.46, 15.81 s 59 …. 15.46 s 60(1)(c) …. 15.33 s 61 …. 15.46 s 62 …. 15.48 s 63 …. 15.48 s 63(3) …. 15.62 s 66(1) …. 15.43 ss 67–69 …. 15.88

ss 77–82 …. 15.93, 16.43 s 79(1)(d) …. 16.46 s 80(1) …. 15.111 s 80(2) …. 15.111 s 83 …. 20.39 s 83(1) …. 15.105 s 84 …. 20.81 s 90(1) …. 15.71 s 91 …. 20.59 s 91(2)(d) …. 20.86 s 93(3) …. 15.63 s 97 …. 15.101, 15.112 s 97(a)(i) …. 15.112 s 97(a)(ii) …. 15.112 s 97(c) …. 15.112 s 108(1)(k)–(n) …. 15.48 s 108(1)(p) …. 16.46 s 108(1)(q) …. 16.46 s 117 …. 16.2 s 118 …. 15.78 Sch 1 …. 15.61 Sch 2 …. 15.59, 15.111 Sch 2 Pt 1 …. 15.57 Water Act 1992 …. 18.29 s 4 …. 15.59 s 16 …. 20.49 s 17(1) …. 3.16 s 62 …. 15.59

s 63(1) …. 15.59 s 63(2) …. 15.75 s 65 …. 15.59 s 73 …. 10.46, 15.38 s 77 …. 15.75 s 90(1) …. 15.66 s 91 …. 15.66 s 92 …. 15.64 s 95 …. 15.61 Water Efficiency Labelling and Standards Acts 2014 …. 18.38 Water Regulations 1992 reg 17 …. 15.61

Queensland Aboriginal Cultural Heritage Act 2003 s 23 …. 3.51 s 28 …. 3.52 Aboriginal Land Act 1991 s 2.03 …. 14.67 Acquisition of Land Act 1967 …. 2.28 Animal Care and Protection Act 2001 s 11 …. 3.51 s 17 …. 3.51 Animals Protection Act 1925 s 11(4) …. 22.31 Biodiscovery Act 2004 …. Pt D.6 s 3 …. Pt D.6 Civil Liability Act 2003 …. 3.37 Dictionary Sch 2 …. 3.38

s 4 …. 3.38 s 9 …. 3.37 s 11 …. 3.36 s 34 …. 3.38 s 35 …. 3.37 s 36 …. 3.37, 3.38 Clean Coal Technology Special Agreement Act 2007 …. 10.65 s 2 …. 10.65 Coastal Protection and Management Act 1995 …. 17.35, 18.56 s 4 …. 18.56 s 15 …. 18.52 s 20 …. 18.56 s 21 …. 18.56 s 34 …. 18.56 s 54 …. 18.56 s 59 …. 18.56 s 70 …. 18.56 s 75 …. 18.56 s 100A …. 18.56 s 103 …. 18.56 s 104 …. 18.56 s 106 …. 18.56 Coastal Protection and Management Regulation 2003 reg 4A …. 18.56 Coastal Protection State Planning Regulatory Provision 2013 …. 18.56 Pt 3 …. 18.56 Constitution Act 1867 …. 5.39 Contaminated Land Act 1991

ss 40–42 …. 15.88 Criminal Code 1899 s 22 …. 14.66 s 23 …. 20.76 s 24 …. 13.26, 20.76 Environmental Offsets Act 2014 …. 13.38 s 7(2) …. 13.38 s 8 …. 13.38 s 9 …. 13.38 s 10 …. 13.38 s 11 …. 13.38 s 14(1) …. 13.38 s 18 …. 13.38 s 18(4) …. 13.38 s 23 …. 13.38 s 25 …. 13.38 s 26 …. 13.38 s 30 …. 13.38 s 84 …. 13.38 Environmental Protection Act 1994 …. 2.72, 9.57, 11.4, 11.41, 11.54, 15.43, 16.3, 16.47, 18.59, 18.65, 20.23, 20.26, 20.61, 20.76 Ch 4 Pt 9 …. 15.64 Ch 4 Pt 11 …. 15.63 Ch 4A …. 12.21 Ch 5 …. 18.7, 18.62 Ch 5 Pt 6 Div 6 …. 15.61 Ch 5 Pt 9A …. 18.61 Ch 5A …. 11.54, 18.62 Ch 5A Pt 5 …. 15.63

Ch 5A Pt 6 …. 15.63 Ch 7 Pt 2 …. 18.61 Dictionary …. 11.54, 16.36, 20.45 s 5 …. 7.24 s 8(2) …. 15.25 s 9 …. 15.25, 15.26 s 10 …. 15.25 s 11 …. 15.25 s 13 …. 16.3 ss 14–17A …. 15.26 s 14(1) …. 15.26 s 15 …. 15.29 s 16 …. 15.28 s 17 …. 15.28 s 18 …. 10.33, 11.54, 15.59 s 19 …. 11.54, 15.59 s 19A …. 11.54 s 20 …. 7.19 s 21 …. 15.29, 15.33 s 21(2) …. 15.33 s 24(3) …. 15.36 ss 26–34 …. 15.38 s 27 …. 15.38 s 27(2)(e) …. 16.2 s 28 …. 15.38 s 33 …. 15.40 s 34 …. 15.38 s 37 …. 18.61

s 37(1) …. 11.54 s 37(2) …. 11.54 s 37(3) …. 11.54 s 40 …. 11.54 ss 40ZT–50ZX …. 15.78 ss 41–46 …. 11.13 ss 41–60 …. 11.54 s 43 …. 15.15 s 44 …. 22.63 s 49A …. 11.54 s 50 …. 11.54 s 54(2)(3) …. 15.64 s 56A …. 11.54 s 56AA …. 11.54 s 56B …. 11.54 ss 57–59 …. 11.54 s 60 …. 11.54 s 73B …. 15.19 s 73B(3)(a)(iii) …. 11.94 s 73C …. 10.32 s 75 …. 11.54, 12.21, 15.59 s 76 …. 12.21 ss 77–82 …. 12.21 s 81(c) …. 15.46 ss 83–87 …. 12.21 s 87A …. 11.54, 12.21 ss 87A–105 …. 12.21 s 89 …. 22.63

s 107 …. 11.54, 15.59 ss 108–111 …. 11.54 s 110 …. 22.63 s 121 …. 15.59 s 122 …. 15.59 s 123 …. 15.59 s 150 …. 15.59 s 162 …. 11.8 s 170 …. 15.59 s 171 …. 15.59 s 189 …. 15.61 s 201 …. 15.62, 15.79 s 203 …. 15.75 ss 203–210 …. 15.66 ss 204–206 …. 15.75 s 206 …. 18.65 s 207 …. 15.65 s 208 …. 15.65 s 254 …. 15.61 s 255 …. 15.61 s 257 …. 15.79 s 278 …. 15.63 s 280 …. 18.61 s 292 …. 15.43, 15.77 s 298 …. 15.77 s 310E …. 11.8 s 310F …. 15.61 ss 310F–310Q …. 11.54

s 310G …. 15.61 s 310V …. 11.8 s 318E …. 15.40 s 319 …. 15.35 s 319(2) …. 15.35 ss 320–320G …. 15.37 s 321 …. 15.81, 15.82 ss 321–323 …. 20.69 s 322 …. 15.81 ss 322–326A …. 15.80 s 323 …. 15.81 s 326B …. 15.82 s 330 …. 15.43, 15.81 ss 330–357 …. 15.46 s 331 …. 15.33, 15.35, 15.46 s 333 …. 15.47 s 338 …. 15.46 s 346 …. 15.48 s 347 …. 15.48 s 349 …. 15.43, 15.46 s 350 …. 15.86 ss 350–357 …. 15.48 s 351 …. 15.86 s 351(1) …. 15.48 s 351(2) …. 15.48 s 355 …. 15.48 s 356 …. 15.48 s 358 …. 15.91, 20.4

s 359 …. 15.33, 15.92 s 360 …. 15.91 s 361 …. 15.92 s 361(1) …. 15.111 s 361(2) …. 15.111 s 363B …. 12.21, 20.H ss 363B–363D …. 15.91 s 363C …. 15.92 s 363D …. 15.91 s 363E …. 15.92 s 363H …. 15.91, 20.4 s 363I …. 15.92 s 363N …. 15.91. 15.92 s 371 …. 16.37 s 372 …. 16.37 s 374 …. 16.37 ss 376–389 …. 16.37 s 381 …. 16.44 ss 381–389 …. 16.45 ss 390–400 …. 16.37 s 391 …. 16.37 s 395 …. 16.44 ss 395–400 …. 16.45 s 401 …. 15.43 ss 401–419 …. 16.37 s 410 …. 16.44 s 413(2) …. 16.33 s 417 …. 16.33

s 424 …. 16.43 s 425 …. 16.43 ss 426–427 …. 15.59, 15.111 s 430 …. 15.106, 15.111 s 431(4) …. 15.111 s 432 …. 15.46 s 432(1) …. 15.112 s 432(2) …. 15.112 s 434 …. 16.37 s 435A …. 15.76 s 436 …. 20.81 ss 437–440 …. 15.26 s 437(1) …. 15.106 s 437(2) …. 15.106 s 437(3) …. 15.106 s 438 …. 15.106 s 438(3) …. 15.106 s 439 …. 15.106 s 440 …. 15.106 s 440(3) …. 15.106 ss 440A–440J …. 16.18 ss 440R–440ZC …. 15.24 s 443 …. 15.25 s 467 …. 15.101 s 490(7) …. 20.30 s 490(8) …. 20.30 s 492 …. 20.54 s 492(2) …. 20.59

s 492(3) …. 20.54 s 493 …. 20.61 s 493(4)(a) …. 20.86, 20.88 s 493(4)(b) …. 20.86 s 493A …. 15.106 s 493A(3) …. 15.36 s 493A(3)(b) …. 15.42 s 493A(4) …. 15.36 s 493A(5) …. 15.42 s 494 …. 20.26 s 494(2) …. 20.26 s 497 …. 20.26 s 501(1) …. 15.112 s 501(2) …. 15.112 s 502 …. 15.99 s 502(1) …. 15.112 s 502(2) …. 15.112 s 502(2)(a) …. 15.112 s 502(2)(b) …. 15.112 s 502(2)(c) …. 15.112 s 502(2)(d) …. 15.113 s 502(2)(e) …. 15.112 s 502(3) …. 15.112 s 502(4) …. 15.112 s 502(7) …. 15.112, 15.113 s 502A …. 15.112 s 503 …. 20.30 s 503(2) …. 15.112

s 505 …. 19.4, 19.37, 19.41, 20.12, 21.5 s 505(1) …. 15.113 s 505(1)(a) …. 15.113 s 505(1)(b) …. 15.113 s 505(1)(c) …. 15.113 s 505(1)(d) …. 15.113 s 505(2) …. 15.113, 21.2 s 505(2)(a)(ii) …. 19.37 s 505(3) …. 15.113 s 505(4) …. 15.113, 21.13 s 505(5) …. 15.113 s 505(6)(a)(i) …. 15.113 s 505(12) …. 15.111 s 507 …. 19.5, 19.40, 20.12 s 511(4) …. 15.111 s 519 …. 20.4 s 520 …. 15.88, 19.4, 19.20 s 522 …. 15.89 s 523 …. 15.48 s 526 …. 15.61 s 535 …. 15.89 s 540 …. 15.61 s 540A …. 11.54 s 542 …. 11.54 s 547 …. 15.54 s 548 …. 2.56, 15.41 s 567 …. 15.87 s 608 …. 15.43

Sch 1 …. 15.26 Sch 2 …. 15.48, 20.4 Sch 2 item 37 …. 16.15 Sch 3 …. 8.21, 11.54, 16.15, 16.37 Sch 4 …. 15.33, 15.38, 15.39, 15.66, 15.71, 15.92, 15.106, 16.32, 22.63 Environmental Protection Act 2004 s 126 …. 18.65 Environmental Protection (Air) Policy 2008 …. 15.24 Sch 1 …. 15.38 Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 …. 15.18 Environmental Protection (Noise) Policy 2008 s 9 …. 15.24 Environmental Protection Regulation 2008 Ch 3 …. 15.59 Ch 5 Pt 3 …. 15.24 Ch 6 …. 15.10 Ch 7 Div 1 …. 15.30 Ch 7 Div 2 …. 15.30 cll 14–25 …. 15.59 cl 65 Sch 7 Pt 2 …. 16.15 Pt 9 …. 16.18 reg 9 …. 11.54 reg 22F …. 12.21 reg 24AA …. 18.65 reg 51(1)(c) …. 15.57 reg 78 …. 15.24 s 17 …. 11.54 ss 22B–22E …. 12.21

ss 24A–32 …. 12.21 Sch 2 …. 11.54, 15.59 Sch 2E …. 16.18 Sch 2F …. 16.18 Sch 7 …. 16.15 Environmental Protection (Waste Management) Regulation 2000 Pt 6A …. 16.15 Environmental Protection (Water) Policy 2009 …. 15.24 Sch 1 …. 15.38 Fauna Conservation Act 1974 …. 14.47 s 54 …. 14.66 s 64 …. 5.43 Fisheries Act 1994 …. 12.62 Pt 5 …. 12.62 Pt 6 …. 18.9 s 3 …. 18.9 s 42A …. 18.48 ss 120–125 …. 12.62 s 125 …. 15.93 Forestry Act 1959 …. 13.25 s 34A …. 12.66 ss 34C–34E …. 12.66 s 61J(5) …. 3.10 s 61K …. 17.46 Freedom of Information Act 1992 …. 22.24 Geothermal Energy Act 2010 …. 11.49 s 10 …. 18.62 s 28 …. 9.6

Greenhouse Gas Storage Act 2009 …. 11.49 Integrated Planning Act 1997 …. 9.36, 9.41, 10.2, 10.3, 11.42 s 1.3.5 …. 11.48 s 2.2.1 …. 9.2 s 4.1.21 …. 21.4 s 232 …. 11.42 s 238 …. 11.42 s 314 …. 11.42 s 701 …. 11.42 Integrated Resort Development Act 1987 …. 10.54 Judicial Review Act 1991 …. 11.51, 22.19 Pt 4 …. 22.21 s 7 …. 19.20 s 20 …. 19.4 ss 20–24 …. 22.20 s 26 …. 22.26 s 49 …. 21.23, 21.37 s 50 …. 21.23 Justices Act 1886 s 5 …. 20.26 Land Act 1994 …. 9.7 s 198A …. 13.67 s 198B …. 13.67 s 199 …. 3.51, 13.6, 13.66, 18.77 s 203 …. 13.66 s 214 …. 3.52, 13.66, 18.77 Mineral Resources Act 1989 …. 2.72, 11.49 Pt 7 …. 3.9

s 8 …. 3.8, 9.6 s 235(3) …. 2.72 s 319 …. 18.62 s 319A …. 18.62 s 383 …. 18.5 s 383(3) …. 18.62 Sch 2 …. 12.69 Minerals and Energy Resources (Common Provisions) Act 2014 …. 18.65 s 3(c) …. 18.65 s 9 …. 18.65 Mount Isa Mines Limited Agreement Act 1985 …. 10.65 National Environment Protection Council (Qld) Act 1994 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 Nature Conservation Act 1992 …. 2.13, 12.42, 12.48, 12.66, 12.67, 14.45, 14.48, 14.66, 14.67 Dictionary …. 12.48, 14.44, 14.46, 14.47, 14.49 Pt 4A …. 12.66 s 5 …. 12.48 s 5(d) …. 14.45 s 5(e) …. 14.45 s 6 …. 12.48

s 7 …. 3.8 s 8 …. 12.48, 14.45 s 9 …. 12.48 s 11 …. 12.48 s 12 …. 14.90 s 13 …. 12.48, 14.49, 14.79 s 16 …. 12.49 s 17 …. 12.49 ss 17–19 …. 14.67 s 18 …. 12.49 s 19 …. 12.49 s 19A …. 12.49 s 20 …. 12.49 s 21 …. 3.16, 12.49 s 22 …. 12.49 s 23 …. 12.49 s 24 …. 12.49 s 24(3) …. 3.50 s 25 …. 12.49 s 26 …. 12.49 s 27 …. 12.60, 12.69, 18.62 s 29 …. 7.51 s 29(1) …. 13.38 s 34 …. 12.75 ss 36–38 …. 12.49 s 39 …. 12.42 s 40 …. 12.42 s 41 …. 12.42

ss 42AG–42AP …. 12.68 s 45 …. 7.47 s 46 …. 13.38 s 49 …. 12.2 s 56 …. 3.8 s 61 …. 2.13 s 62 …. 2.13, 12.71, 14.46 s 67 …. 12.75 s 68 …. 12.48 s 70A …. 12.66 s 70F …. 12.66 s 70I …. 12.66, 12.70 ss 70J–70O …. 12.66 s 70QA …. 12.69 s 71 …. 14.44 s 72 …. 14.45 s 72(3) …. 14.45 s 73 …. 14.45, 14.90 ss 73–75 …. 14.45 ss 76–79 …. 14.79 ss 76–80 …. 14.44 s 81 …. 7.36, 14.44 s 82 …. 14.44 s 83 …. 3.8, 14.46 ss 83–87 …. 2.13 s 84 …. 3.8, 14.46 s 85 …. 14.46 s 88 …. 14.46

s 88(3) …. 20.83 s 88(3)(a) …. 20.83 s 89 …. 14.46 s 90 …. 14.81 s 93 …. 14.67 s 93(2) …. 14.67 s 93(3) …. 14.67 s 93(4) …. 14.67 s 97 …. 14.49, 14.81 s 102 …. 12.67, 20.4 s 103 …. 14.90 ss 104–109 …. 12.67 ss 112–116 …. 14.45 s 117 …. 9.17 ss 118–126 …. 14.45 s 123 …. 14.79 s 125 …. 12.73 s 126 …. 12.75 s 168 …. 12.76 s 169 …. 12.76 s 173A …. 20.13 s 173D …. 20.13 s 173F …. 20.13 s 173I …. 12.76, 20.13 s 319 …. 3.50 s 358 …. 3.50 s 493A(3) …. 3.50 s 494A(4) …. 3.50

Nature Conservation Amendment Act 2004 …. 18.59 Nature Conservation (Protected Areas Management) Regulation 2006 …. 12.49 Nature Conservation (Wildlife) Regulation 2006 …. 14.45 reg 14 …. 14.79 reg 14(i) …. 14.79 reg 19 …. 14.79 reg 19(i) …. 14.79 reg 29(k) …. 14.79 Schs 1–3 …. 14.79 Sch 5 …. 14.79 Nature Conservation (Wildlife Management) Regulation 2006 …. 14.45 Offshore Minerals Act 1998 …. 18.59 Petroleum Act 1923 …. 18.59 s 4 …. 18.59 s 80J …. 18.59 Petroleum and Gas (Production and Safety) Regulation 2004 …. 18.65 s 35 …. 18.65 s 35A(3)(d) …. 18.65 s 46A(3)(h) …. 18.65 Planning Act 1999 s 75A …. 13.31 Planning Regulation 2009 reg 5 …. 9.49 Police Powers and Responsibilities Act 2008 Pt 3 Div 1 …. 15.96 Pt 3 Div 2 …. 15.96 Pollution of Waters by Oil Act 1973 s 9 …. 20.76

Queensland Heritage Act 1992 …. 5.47, 7.46 s 58 …. 20.4 s 66 …. 20.8 Radiation Safety Act 1999 …. 15.131 s 17 …. 15.131 Recreation Areas Management Act 2006 …. 12.49 s 4 …. 12.49 s 6 …. 12.49 s 7 …. 12.49 Regional Planning Interests Act 2014 …. 9.65, 12.49 Pt 2 Div 2 …. 12.49 Pt 3 …. 12.49 Pt 4 …. 9.65 s 7 …. 9.65 s 10 …. 9.65 s 11 …. 9.65, 12.49 s 19 …. 9.65 s 27 …. 9.65 s 28 …. 9.65 s 59 …. 9.65 Regional Planning Interests Regulations 2014 Pt 3 …. 9.65 reg 4 …. 12.49 regs 7–10 …. 12.49 Sch 2 …. 9.65 Rundle Oil Shale Agreement Act 1980 …. 10.65, 15.78 Sanctuary Cove Resort Act 1985 …. 10.67 Soil Conservation Act 1986

Pt 4 …. 18.77 s 10 …. 18.77 State Development and Public Works Organisation Act 1971 (SDPWOA) …. 9.35, 10.33, 10.53, 10.60, 11.4, 11.41, 11.45, 13.25 Pt 4 Div 4 …. 10.33 s 13 …. 11.51 s 25 …. 11.45 s 26 …. 10.53, 10.60, 11.6, 11.8 s 26(1) …. 11.45 s 26(1)(b) …. 11.46 s 26(2) …. 11.46 s 26(3) …. 11.46 s 27 …. 10.60, 11.8, 11.45 s 27(2) …. 11.45 s 27AA …. 10.60, 11.45 s 27AB …. 11.46 s 27AC …. 11.46 s 27AD …. 11.45 s 27A …. 11.46 s 29 …. 11.6, 11.8, 11.46 s 30 …. 11.46 s 31 …. 11.46 ss 32–34 …. 11.46 s 32(4) …. 11.46 ss 34A–34C …. 11.46 s 34D …. 11.46 s 34E–34L …. 11.46 s 35A …. 11.46 s 35C …. 11.46

s 35E …. 11.46 s 35F …. 11.46 s 35G …. 11.46 s 35H …. 11.46 ss 35I–35L …. 11.46 s 35K …. 11.46 s 35L …. 11.46 ss 36–42A …. 11.48 s 37 …. 11.48 s 39 …. 11.48 s 39(4) …. 11.48 ss 44–46 …. 11.49 s 45 …. 11.46 s 47A …. 11.49 s 47C …. 11.46 s 49B …. 11.46 ss 49D–49G …. 11.49 s 49E …. 11.46 s 49G …. 11.46 ss 50–54 …. 11.50 s 52 …. 11.50 s 54 …. 11.50 s 54B …. 11.50 s 54C …. 11.50 s 54D …. 11.50 s 54E …. 11.50 s 54G …. 11.50 s 55 …. 10.53

s 57 …. 10.53 s 67 …. 10.53 s 76A …. 11.51 s 76D …. 11.52 s 76E(1) …. 11.51 s 76E(2) …. 11.51 s 76E(4) …. 11.51 s 76EA …. 11.51 s 76F …. 11.51 s 76G …. 11.51 s 76H …. 11.51 s 76I …. 11.52 s 76I(6) …. 11.52 s 76I(7) …. 11.52 s 76J …. 11.52 s 76J(7) …. 11.52 s 76J(8) …. 11.52 s 76J(9) …. 11.52 s 76K …. 11.52 s 76L …. 11.52 s 76M …. 11.52 s 76M(4) …. 11.52 s 76N …. 11.52 s 76N(d) …. 11.52 s 76N(e) …. 11.52 s 76O …. 11.52 s 76O(2) …. 11.52 s 76O(3) …. 11.52

s 76O(4A) …. 11.52 s 76O(5–7) …. 11.52 s 76P …. 11.52 s 76P(2) …. 11.52 s 76P(3) …. 11.52 s 76Q …. 11.52 s 76R …. 11.52 s 76S …. 11.53 s 76T(1) …. 11.53 s 76T(2) …. 11.53 s 76V …. 11.52 s 76W …. 11.51 State Development and Public Works Organisation Regulation 2010 reg 26A …. 11.47 reg 35 …. 11.46 Sch 1 …. 11.46 Sch 1AA …. 11.47 Strategic Cropping Land Act 2011 …. 9.65, 18.78 Sustainable Development Act 1999 …. 18.56 Sustainable Planning Act 2009 …. 7.22, 7.26, 9.36, 9.48, 10.2, 10.6, 10.33, 11.4, 11.41, 11.54, 13.25, 15.19, 16.32, 18.56, 21.40 Ch 7 Pt 1 …. 2.72 Ch 7 Pt 2 …. 22.2 Pt 8 …. 9.25 s 3 …. 9.1 ss 3–5 …. 7.22, 7.26 s 4 …. 9.36, 10.34 s 5 …. 9.36, 10.34 s 5(2) …. 8.56

s 5(3) …. 9.36 s 7 …. 10.2 s 8 …. 8.19, 8.37 s 10 …. 10.2, 10.33 s 14 …. 9.35 s 17(1) …. 9.41 s 19 …. 9.43 s 22 …. 9.44 s 24 …. 9.41 s 26(3) …. 9.41 s 28 …. 9.46 s 38 …. 9.57 s 40 …. 9.44 s 41 …. 9.41 s 42 …. 9.41 s 43 …. 9.43 s 50 …. 9.39, 9.49 s 51 …. 9.41 s 57 …. 9.48, 22.43 s 80 …. 9.41 s 88 …. 9.57 s 89(2) …. 9.57 s 102 …. 9.41 s 105 …. 9.57 s 109 …. 9.41 s 119 …. 9.49, 22.43 ss 125–130 …. 9.49 s 147 …. 22.43

s 194 …. 22.43 s 230 …. 10.33 s 231(2) …. 10.2, 10.32 s 232 …. 10.34 s 232(1) …. 11.46 s 232(1)(a) …. 10.32 s 232(1)(b) …. 10.32 s 232(1)(c) …. 10.32 s 232(2) …. 10.32 s 232(3) …. 10.32 s 233 …. 10.34 s 233(2) …. 10.34 s 233(3) …. 10.34 s 233(4) …. 10.34 s 235 …. 10.32 ss 235–238 …. 10.5 s 236(1) …. 10.32 s 236(2) …. 10.5, 10.32 s 237(1) …. 10.32 s 237(2) …. 10.5, 10.32 s 238 …. 10.32 s 239 …. 10.32 s 246 …. 11.43 s 250 …. 10.6 ss 250–252 …. 10.33 s 251 …. 10.6 s 257(1) …. 10.33 s 257(2) …. 10.33

s 257(3) …. 10.33 s 260 …. 10.34, 11.43 s 261 …. 10.34, 11.43 s 266 …. 10.34 s 267 …. 10.34 s 269 …. 10.34 ss 270–293 …. 10.34 s 272 …. 11.43 s 276 …. 11.43 s 278 …. 11.6, 11.43 s 278 …. 10.34 s 287 …. 10.6 s 290 …. 10.35 s 292 …. 10.6 ss 294–307 …. 11.43 s 295 …. 10.35 s 295(1)(a) …. 10.35 s 296 …. 10.35 s 305(2) …. 10.35 s 305(3) …. 10.35 s 313 …. 10.34, 11.42 ss 313–317 …. 10.35 s 314 …. 11.42, 11.43 s 324 …. 10.36, 11.44 s 325(4) …. 10.6 s 326 …. 10.36, 11.44 s 326(1)(b) …. 9.41 s 367 …. 10.36

s 369(1) …. 10.36 s 378 …. 10.36 s 393 …. 10.32 ss 417–419 …. 10.60 ss 423–433 …. 10.60 s 424 …. 10.36 s 427 …. 10.60 s 427(5) …. 10.60 s 440 …. 10.34, 10.36 s 456 …. 21.23 s 457 …. 22.9 s 461 …. 10.70, 19.4 s 462 …. 10.70 s 463 …. 10.70 s 469 …. 19.54 s 482 …. 22.3 s 485 …. 22.3 s 491 …. 22.13 s 495 …. 22.7 s 528 …. 10.2 s 574 …. 10.8, 10.32 s 575 …. 10.32 s 578 …. 10.32 s 588 …. 20.4 s 590 …. 20.4, 20.25 s 597 …. 19.40 s 598 …. 19.48 s 600 …. 19.48

s 601 …. 19.40, 20.12 s 602 …. 19.48 s 607 …. 19.48 ss 681–685 …. 9.53 s 687 …. 9.53 s 688 …. 11.42, 11.43 ss 688–700 …. 10.36 s 690 …. 11.6, 11.13, 11.43 s 691 …. 11.43 s 692 …. 11.43 s 694 …. 11.43 s 695 …. 11.43 s 696 …. 11.43 s 697 …. 11.43 ss 697–700 …. 11.14 s 698 …. 11.43 s 699 …. 11.43 s 700 …. 11.43 Sch 1 …. 10.32 Sch 1 item 3 …. 13.25 Sch 3 …. 9.44, 10.8, 10.32, 10.33, 10.34, 10.35, 10.36, 16.32 Sch 3 Pt 1 Column 2 …. 10.32 Sch 24 …. 10.33 Sustainable Planning Regulation 2009 …. 10.2 reg 5 …. 9.49 reg 32 …. 11.6, 11.8, 11.42 regs 32–39 …. 10.36 reg 33 …. 11.42

reg 34 …. 11.9, 11.43 reg 37 …. 11.43 s 9(1)(a) …. 10.32 s 9(1)(b) …. 10.32 s 11 …. 10.34 s 18 …. 10.32 s 19 …. 10.32 Sch 3 …. 10.5, 10.6, 11.8, 11.42, 11.43 Sch 3 Pt 2 …. 10.32 Sch 5 …. 10.8, 10.34, 11.42 Sch 6 …. 10.34 Sch 7 …. 10.6, 10.33, 10.34, 11.43, 18.14 Sch 18 …. 10.32 Sch 19 …. 10.32 Sch 24 …. 11.8 Toowong Railway Station Development Project Act 1985 …. 10.67 Torres Strait Islander Cultural Heritage Act 2003 s 23 …. 3.51 s 28 …. 3.52 Torres Strait Islander Land Act 1991 s 2.02 …. 14.67 Transport Operations (Marine Pollution) Act 1995 …. 15.114 s 26(1) …. 15.126 Transport Operations (Road Use Management — Vehicle Standards and Safety) Regulation 2010 Sch 1 Pt 9 …. 15.24 Tweed River Entrance Sand Bypassing Project Agreement Act 1998 s 6 …. 7.19 Vegetation Management Act 1999 …. 5.55, 10.6, 10.33, 13.23, 13.24, 13.25

Dictionary …. 13.25 Pt 2 Div 5B …. 13.24 Pt 2 Div 6 …. 10.33 Pt 3 Div 8 …. 20.28 s 3 …. 13.24 s 3(2) …. 13.24 s 3(2)(e) …. 13.24 s 4 …. 13.25 s 7 …. 13.24 s 8 …. 13.25 s 8(b) …. 13.24 s 10 …. 13.25 s 11–15 …. 13.25 ss 16–18 …. 13.25 s 19 …. 13.25 ss 19E–19G …. 13.25 s 19F …. 13.38 s 19H …. 13.25 s 19N …. 13.25 s 19O …. 13.25 ss 19O–19R …. 13.25 s 19P …. 13.25 s 19Q …. 13.25 ss 19S–19X …. 13.25 s 19W …. 13.25 ss 19Y–19ZG …. 13.25 s 20 …. 13.25 s 20A …. 13.24

ss 20AA–20AJ …. 13.24 s 20AK …. 13.24 ss 20AL–20AO …. 13.24 s 20B …. 13.24 s 20BA …. 13.24 ss 20C–20H …. 13.24 s 20M …. 13.24 s 20W …. 13.24 s 20X …. 13.24 s 21 …. 13.25 s 22 …. 13.25 s 22A …. 11.46, 13.25 s 22A(2)(a) …. 11.46 s 22DAC …. 13.25 s 22DE …. 13.25 s 22DG …. 13.35 s 22DK …. 13.36 s 22E–22L …. 13.25 ss 22LA–22LC …. 13.24 s 33O …. 13.25 s 54A …. 20.4 s 54B …. 20.4 s 55 …. 13.26 s 57 …. 13.23, 13.24 s 62 …. 13.26 s 67B …. 13.26 s 70A …. 13.25 Vegetation Management (Regrowth Clearing Moratorium) Act 2009 …. 13.23

Vegetation Management Regulation 2012 reg 5 …. 13.25 reg 6 …. 13.25 reg 11 …. 13.25 Schs 1–3 …. 13.24 Sch 4 …. 13.25 Sch 5 …. 13.25 Sch 6 …. 13.25 Waste Reduction and Recycling Act 2011 Ch 2 …. 16.3 Ch 6 …. 16.2, 16.3 Ch 7 …. 16.3 Ch 8 …. 16.2, 16.3 s 3 …. 16.3 s 4 …. 16.3 s 4(2) …. 16.3 s 9 …. 16.1, 16.3 s 10 …. 16.3 s 11 …. 16.3 s 12 …. 16.3 s 13 …. 16.3 s 15(2) …. 16.2 s 61 …. 16.3 s 62 …. 16.3 s 63 …. 16.3 s 67 …. 16.3 s 156 …. 16.3 s 271 …. 16.10

Water Act 2000 …. 2.72, 18.29 Ch 3 …. 18.18 s 206(1)(b) …. 2.72 s 882 …. 22.9 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Resources Act 1989 s 4 …. 7.33, 15.93 s 40 …. 15.93 s 46 …. 7.33 Wild Rivers Act 2005 …. 12.49, 12.72 s 3 …. 12.49 ss 7–18 …. 12.49 ss 41–44 …. 12.72

South Australia Aboriginal Heritage Act 1988 s 6 …. 22.35 s 23 …. 22.35, 22.44 Acts Interpretation Act 1915 s 22 …. 2.65 Adelaide Dolphin Sanctuary Act 2005 s 32 …. 3.51 s 37 …. 3.52 Adelaide Railway Station Development Act 1984 …. 10.67 Australian Formula One Grand Prix Act 1984 …. 10.67 Beverage Container Act 1975 …. 5.44, 16.8 Botanic Gardens and State Herbarium Act 1978 s 13(1) …. 12.2 Coast Protection Act 1972 …. 18.57

s 19 …. 18.57 s 20 …. 18.57 s 21 …. 18.57 Coast Protection Regulations 2015 reg 4 …. 18.57 Constitution Act 1934 …. 5.39 Criminal Law (Sentencing) Act 1988 s 9D …. 20.119 s 11(1)(a)(iv) …. 20.98 s 16 …. 20.112 Crown Lands Act 1929 …. 9.7, 13.67 s 249C(1) …. 13.67 Crown Land Management Act 2009 …. 13.67 s 5 …. 13.67 s 8 …. 13.68 s 35 …. 13.67 s 49 …. 13.67 Sch 1 …. 13.67 Development Act 1993 …. 3.46, 8.38, 9.34, 9.37, 10.2, 10.38, 11.4, 11.67, 13.10, 13.33, 22.52 s 3 …. 9.37, 9.58 s 3(a) …. 9.1 s 4 …. 10.2, 10.37, 11.60, 13.33 s 4(4) …. 11.63 s 4(5) …. 11.64 s 4(6) …. 11.64 s 4(9) …. 11.65 s 6 …. 10.2 s 6(2) …. 11.59

s 7(1) …. 9.34 s 8(1) …. 11.59 s 8(2) …. 11.59 s 8A …. 11.59 ss 8B–8G …. 11.59 s 8C(1)(b)(ii) …. 11.59 s 9 …. 11.59 s 10 …. 11.99 s 11 …. 11.99 s 22 …. 9.37, 9.41 s 22(8) …. 9.41 s 22(10) …. 9.41 s 23 …. 9.37, 9.58 ss 24–27 …. 9.49 s 25 …. 10.38 s 25(7)(d) …. 9.49 s 25(8)(b)(ii) …. 9.49 s 25(9)(b) …. 9.49 s 26(5a)(b) …. 9.49 s 26(5b)(b) …. 9.49 s 26(11) …. 9.49 s 26(d)(ii) …. 9.49 s 32 …. 10.5 s 35 …. 10.5, 22.48 s 36 …. 10.37 s 37 …. 10.38, 18.57 s 38 …. 10.9, 10.70, 15.59 s 38(1) …. 10.37

s 38(2)(a) …. 10.37 s 38(2)(b) …. 10.37 s 38(2)(c) …. 10.37 s 38(2a) …. 10.9, 10.37, 10.38 s 38(3) …. 10.37 s 38(3)–(5) …. 10.37 s 38(3)(a) …. 10.9 s 38(6)–(18) …. 10.37 s 46 …. 10.57, 11.6, 11.60, 11.67 ss 46–46D …. 11.63 s 46(1)(a) …. 11.62 s 46(1a) …. 10.57 s 46(2) …. 11.63 s 46(6) …. 11.63 s 46(7) …. 11.65 ss 46(7)–(15) …. 10.57 s 46(10) …. 11.65 s 46(11) …. 11.65 s 46(13) …. 11.65 ss 46B–46D …. 10.57, 11.66 s 46B(4) …. 11.13 s 46B(5)(a) …. 11.66 s 46B(5)(b) …. 11.66 s 46B(8) …. 11.66 s 46B(9) …. 11.66 s 46B(10) …. 11.66 s 46C(5)(a) …. 11.66 s 46C(5)(b) …. 11.66

s 46C(8) …. 11.66 s 46C(9) …. 11.66 s 46C(10) …. 11.66 s 46D(5)(a) …. 11.66 s 46D(5)(b) …. 11.66 s 46D(7) …. 11.66 s 46D(8) …. 11.66 s 46D(9) …. 11.66 s 47 …. 11.93 s 48 …. 10.57 s 48(4) …. 11.11 s 48(5)(da) …. 3.52 s 48(5)(db) …. 3.52 s 48(5)(dc) …. 3.52 s 48(7) …. 11.93 s 48C(1)(a) …. 11.66 s 48C(1)(b) …. 11.66 s 48C(2) …. 11.66 s 48D(2) …. 11.66 s 48E …. 11.60 s 49 …. 9.34, 10.7, 11.60 s 49(7a) …. 11.65 s 49A …. 11.60 s 49A(7a) …. 11.65 s 54A …. 13.33 s 54B …. 13.33 s 57 …. 9.30, 10.38, 10.47 s 57A …. 10.47

s 74 …. 10.37 s 75(4) …. 11.67 s 75(4a) …. 11.67 s 75A …. 11.67 s 84 …. 20.4 s 85 …. 20.13 s 86(1)(d)(ii) …. 20.4 Sch 22 …. 11.8 Development Control Regulations 1982 Sch 3 …. 13.10 Development Regulations 1993 …. 8.65 cl 6A …. 10.37 cl 32 …. 10.70 cll 33–42 …. 10.9 reg 63 …. 11.65 regs 63D–63F …. 11.63 reg 69B …. 11.65 Sch 2 …. 11.61 Sch 3 …. 11.61 Sch 8 …. 11.65 Sch 9 …. 10.9, 10.70 Sch 9 para 2(1)(f) …. 22.52 Sch 20 …. 11.65 Sch 22 …. 10.37, 10.70, 11.62 Development Regulations 2008 …. 10.2 reg 6A …. 10.2, 13.33 reg 24 …. 10.38 reg 25 …. 10.38

reg 32 …. 10.37 Sch 8 cl 10 …. 10.38 Sch 8 cl 11 …. 10.38 Sch 8 Table 2 …. 18.57 Sch 9 …. 10.37 Sch 21 …. 10.38 Sch 22 …. 10.38 Electricity Act 1996 s 47 …. 7.19 ss 55B–55L …. 7.19 s 55N …. 7.19 Electricity (Principles of Vegetation Clearance) Regulations 1996 …. 13.10 Electricity (Principles of Vegetation Clearance) Regulations 2010 …. 7.20 Environment Health Act 1987 s 21 …. 15.93 Environment Protection Act 1993 …. 7.24, 10.37, 10.38, 15.67 Pt 5 …. 15.38 Pt 6 Div 5 …. 15.43 Pt 8 Div 2 …. 16.8 s 3 …. 15.25, 15.29, 16.15, 20.35 s 3(1) …. 16.15 s 5 …. 15.26 s 5(4) …. 15.28 s 5(5) …. 15.25 s 5B …. 16.25, 16.38 s 7 …. 7.19 s 8 …. 3.16 s 10 …. 7.24

s 10(1)(b) …. 22.63 s 10(1)(b)(i)(a) …. 16.2 s 11 …. 10.38 s 23A …. 16.39 s 25 …. 3.50, 15.35 s 25(2) …. 15.35 s 25(3) …. 3.50, 15.36 s 25(4) …. 3.50, 15.36 s 27 …. 15.38 s 27(2)(a) …. 15.39 s 28 …. 15.40 ss 28–30 …. 15.38 s 28(2) …. 15.38 s 28(9) …. 15.40 s 28A …. 15.15 s 29 …. 15.40, 16.10 s 30 …. 15.40 s 31 …. 15.40 s 33 …. 10.37 s 34 …. 15.38 s 34(1) …. 15.111 s 34(2) …. 15.111 s 35 …. 15.57, 15.58 s 35(1) …. 10.38 s 35(2) …. 10.38 s 36 …. 15.59, 15.111 s 37 …. 15.78 s 39 …. 15.61

s 43 …. 15.62 s 44 …. 15.46, 15.47 s 45 …. 15.75 ss 45–47 …. 15.63 s 45(5) …. 15.111 s 47 …. 15.66, 22.63 s 47(2)–(4) …. 15.67 s 49(3) …. 15.64 s 51 …. 15.43, 15.77 ss 51–54 …. 15.74 s 51(5) …. 15.77 s 52 …. 15.43, 15.81, 15.82 s 52(2) …. 20.69 s 52(3) …. 15.82 s 52A …. 15.43 s 54 …. 15.43, 15.46 s 54A …. 10.37 s 54B …. 10.37 s 54C …. 15.58 s 55 …. 15.63 s 55(1) …. 15.79 s 55(1)(b) …. 15.79 s 55(1)(c) …. 15.79 s 56 …. 15.79 s 57 …. 10.38, 15.67, 22.63 s 58 …. 15.86 s 58(6) …. 15.88 s 59 …. 15.74, 16.38

s 59(1) …. 15.43 s 60 …. 15.74, 16.38 s 64 …. 15.61 ss 68–71 …. 15.59, 15.75 s 68(4) …. 16.8 s 69C …. 7.13, 16.8 s 71 …. 7.13 s 74 …. 15.59 s 75 …. 15.59, 15.78 s 78 …. 15.78 s 79 …. 15.107, 20.24, 20.35 s 79(1) …. 15.107 s 79(2) …. 15.107 s 79(3) …. 15.107 s 80 …. 15.107, 20.35 s 80(1) …. 15.107 s 80(2) …. 15.107 s 80(3) …. 15.107 s 81 …. 15.107 s 82 …. 15.107, 20.35 s 83 …. 15.37 s 83A …. 16.38 s 84 …. 20.81 s 91B …. 16.39 s 91C …. 16.39 s 91D …. 16.39 s 91I …. 16.39 s 93 …. 15.91, 15.93, 15.101

ss 93–95 …. 20.4 s 93(2) …. 15.91 s 93(8) …. 15.92, 15.111 s 93A …. 15.91, 15.111 s 94 …. 15.98 s 95 …. 15.98 s 96(5) …. 15.111 s 99 …. 15.91 s 99–103 …. 20.4 s 99(8) …. 15.111 s 101 …. 20.7 s 103C(1) …. 16.38 s 103C(2) …. 16.38 s 103C(3) …. 16.38 s 103D …. 16.38 s 103H …. 16.38, 20.4 s 103H(2)(g) …. 16.45 s 103I …. 16.38 s 103J …. 16.38 s 103J(2)(j) …. 16.45 s 103K …. 16.38 s 103N …. 16.38 ss 103U–103W …. 16.44 s 103X …. 16.44 s 103Z(4) …. 16.45 s 103ZA …. 16.45 s 103ZB …. 20.35 s 104 …. 16.43, 19.36

s 104(1) …. 15.113 s 104(1)(a) …. 15.113 s 104(2) …. 15.113 s 104(7) …. 19.41 s 104(7)(a) …. 15.113 s 104(7)(b) …. 15.113 s 104(7)(c) …. 15.113 s 104(8) …. 15.113, 19.41 s 104A …. 20.15 s 105 …. 15.101 s 106 …. 15.88 s 106(1)(d) …. 16.47, 20.4 s 106(3)(a) …. 16.47 s 106(4) …. 16.47 s 107 …. 15.89 s 107(3) …. 16.47 s 109 …. 15.61 s 112 …. 15.54 s 113 …. 16.6 s 119 …. 20.35 s 124 …. 20.81, 20.91 s 124(1) …. 20.70, 20.86 s 124(3) …. 20.73, 20.81 s 126 …. 20.39, 20.42 s 127 …. 20.35, 20.57 s 127(1)(b) …. 20.54 s 127(2) …. 20.54 s 129 …. 20.59

s 129(1)(a) …. 20.86 s 129(2) …. 20.59 s 133 …. 20.116 s 133(1) …. 15.112 s 133(1)(a) …. 15.112 s 133(1)(b) …. 15.112 s 133(1)(c) …. 15.112 s 133(1)(d)(i) …. 15.112 s 133(1)(d)(ii) …. 15.112 s 133(1a) …. 15.113 s 139(5) …. 20.30 Sch 1 …. 10.37, 10.38, 11.65, 11.66, 15.57, 15.59 Sch 1 Pt A …. 15.59, 16.15 Sch 1 Pt A item 4 …. 16.15 Sch 1 Pt B …. 16.15 Sch 2 cl 5 …. 15.38 Environment Protection (General) Regulations 1994 reg 10 …. 15.61 Environment Protection (Motor Vehicle Fuel Quality) Policy 2002 …. 15.24 Environment Protection Regulation 2009 Pt 5 Div 2 …. 16.44 Pt 6 …. 16.6 reg 21 …. 15.63 reg 30 …. 15.72 reg 32 …. 15.72 regs 35–38 …. 15.74 reg 50 …. 16.38 reg 51 …. 16.38

reg 67 …. 16.47 Sch 3 …. 16.38 Environment Protection (Used Packaging Materials) Policy 2007 …. 16.10 Environment Protection (Waste to Resources) Policy 2010 …. 16.1 Environment Protection (Water Quality) Policy 2003 …. 15.24 Environment, Resources and Development Court Act 1993 …. 2.72 s 7(4) …. 20.24 s 8 …. 20.24 s 16 …. 22.13 s 17 …. 22.3 s 17(1) …. 19.56 s 17(2) …. 19.56 s 17(4) …. 22.9 s 17(4a) …. 22.9 s 17(5) …. 19.54 s 27 …. 22.11 s 28 …. 21.4 s 28A …. 21.4, 21.5 s 28B …. 22.13 s 28C …. 21.4 s 29 …. 21.23 s 44 …. 21.23 Environmental Protection (Noise) Policy 2007 cl 3 …. 15.24 cl 12 …. 15.24 Fire and Emergency Services Act 2005 …. 7.19 s 5 …. 7.19 Fisheries Management Act 2007 …. 2.13, 12.63, 14.53

s 4 …. 12.63 s 7 …. 12.63 s 7(1)(a) …. 9.1 s 8 …. 12.63 s 8(2) …. 12.63 s 8(3) …. 12.63 s 9 …. 12.63 s 43 …. 18.43, 18.44 s 50 …. 18.47 Forest Property Act 2000 s 12 …. 3.10 Forestry Act 1950 …. 14.54 s 3(1)(b) …. 12.66 s 9 …. 12.66 s 9A …. 12.66 Freedom of Information Act 1991 …. 22.24 Golden Grove (Indenture Ratification) Act 1984 …. 10.65 Heritage Act 1978 …. 13.10 Heritage Places Act 1993 …. 12.51 Pt 6 …. 7.47 s 25 …. 12.51 s 26 …. 12.51 s 30 …. 20.4 s 31 …. 20.4 ss 32–35 …. 12.51 s 38 …. 20.8 Land Acquisition Act 1969 …. 2.28, 18.48 Local Government Act 1934

s 235 …. 16.16 s 666b …. 3.21 Local Government Act 1999 …. 3.46 s 254 …. 3.54 Marine Parks Act 2007 …. 12.63 s 4 …. 12.63 s 5 …. 12.63 s 10 …. 12.63 ss 11–16 …. 12.63 s 12 …. 12.63 s 21 …. 2.26 s 37 …. 3.51 s 37(4) …. 3.52 MFP Development Act 1992 …. 10.67 Mining Act 1971 …. 11.67, 18.61 s 10B …. 18.59 s 16 …. 9.6 s 60 …. 18.59 ss 70A–70H …. 18.60 s 73H …. 18.59 Mining Act 1991 s 70A …. 18.61 s 70B …. 18.61 s 70E …. 18.59 s 70F …. 18.59 s 74A …. 18.59 s 74AA …. 18.59 Mining Regulations 2011

regs 65–68 …. 18.60 reg 67 …. 18.60 National Environment Protection Council (SA) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Wildlife Act 1972 …. 12.51, 12.68, 13.67, 14.51, 14.54 s 3 …. 14.53, 14.55 s 3(2) …. 12.51 s 5 …. 14.51 s 25 …. 12.69 s 26 …. 12.51, 12.73 ss 27–34A …. 12.51 s 28 …. 12.51, 12.69 s 29 …. 12.51 s 30 …. 12.51 s 32 …. 12.73 s 33 …. 12.51 s 34A …. 12.51 s 38 …. 12.67 s 40 …. 9.21, 12.73 s 43 …. 12.69

ss 43D–43L …. 12.68 s 44 …. 7.52 s 45 …. 14.53, 14.54 ss 47–49 …. 14.54 s 48 …. 14.54 s 51 …. 14.52 s 52 …. 14.52 s 53 …. 14.52 s 53A …. 14.52 s 54 …. 14.53 s 55 …. 13.67 s 56 …. 13.67 s 57 …. 13.67 ss 58–60 …. 14.53 s 58(4) …. 14.52 ss 60B–60F …. 14.52 s 60BA …. 14.52 s 60G …. 14.52 ss 60G–60L …. 14.52 s 60J …. 14.52 s 65 …. 14.53 s 66 …. 14.53 s 67 …. 14.53 s 68 …. 14.52 s 68A …. 14.53 ss 68C–68E …. 14.68 s 72(2)(2)(b) …. 14.53 s 75A …. 14.51

s 95 …. 14.50 s 95(2) …. 14.50 s 168 …. 14.50 s 169 …. 14.50 s 173D …. 14.50 s 173D(2) …. 14.50 s 173F …. 14.50 s 173I …. 14.50 Schs 3–6 …. 12.51 Schs 7–9 …. 14.51, 14.54, 14.79 Sch 10 …. 14.51 National Parks and Wildlife (Hunting) Regulations 1996 …. 14.52, 14.53 National Parks and Wildlife (Kangaroo Harvesting) Regulations 2003 …. 14.52 National Parks and Wildlife (Wildlife) Regulations 2001 Sch 3 …. 14.52 Sch 6 …. 14.52 Sch 7 …. 14.52 Native Vegetation Act 1991 …. 13.10, 13.11, 13.12, 13.13, 13.33, 14.51 s 3(1)(l) …. 7.35 s 4 …. 13.10 s 6 …. 13.10 s 8 …. 13.12 s 14 …. 13.12 s 14(3) …. 13.21 s 21 …. 13.12 s 21(6) …. 13.41 s 23 …. 7.47, 7.48, 13.10 s 23B …. 7.46

s 23E …. 13.11 s 23F …. 13.11 s 23H …. 13.11 s 23I …. 13.11 s 24 …. 2.18, 13.10, 13.11 s 25 …. 2.18, 13.10, 13.11 s 25A …. 13.41 s 26 …. 9.22 s 26(3) …. 13.12 s 26(4) …. 13.12 s 27 …. 13.10 s 27(2)–(4) …. 13.12 s 28(3) …. 13.10 s 29 …. 7.36, 13.10 s 29(1)(b) …. 13.10 s 29(4) …. 13.10 s 29(4a) …. 13.41 s 29(11)(d) …. 13.41 s 30 …. 13.10 s 31E(1) …. 13.13 s 31E(9) …. 13.13 s 31F …. 13.13 s 40 …. 13.12 s 57 …. 13.10 Sch 1 …. 13.10 Native Vegetation Conservation Act 1985 …. 2.20 Native Vegetation Management Act 1985 …. 13.10 Native Vegetation Regulations 1991

cl 3 …. 9.22 Native Vegetation Regulations 2003 reg 5 …. 13.10, 13.41 Natural Resources Management Act 2004 …. 7.24, 7.29, 9.66, 14.51, 18.29, 18.61, 18.77, 20.13 Ch 7 …. 11.2 s 8 …. 7.24 s 9 …. 3.51, 7.29, 9.66, 18.77 s 9(1) …. 18.18 s 9(2)(g) …. 9.73, 18.18 s 9(3) …. 3.52 s 9(4) …. 3.52 s 9(6) …. 3.52 s 9(7) …. 3.52 s 21 …. 2.19 s 30(2) …. 9.66 s 54(2) …. 9.66 s 74 …. 9.66 ss 74–76 …. 9.66 s 76 …. 9.66 s 78 …. 9.66 s 79 …. 9.42 s 82 …. 9.66 s 90 …. 9.66 s 122 …. 9.42, 9.66, 18.77 s 147 …. 9.66 s 152 …. 9.21 s 179 …. 14.52 s 182 …. 2.53

s 193 …. 12.76, 18.77, 20.4 s 201 …. 20.13 s 205 …. 7.47, 18.77 s 205(5) …. 7.46 s 205(7) …. 7.46 Offshore Minerals Act 2000 …. 11.67 s 196 …. 2.19 Opal Mining Act 1995 …. 11.67 Pastoral Land Management and Conservation Act 1989 …. 7.29, 13.68 s 3 …. 13.68 s 4 …. 13.68 s 7 …. 7.29, 9.14, 13.68 s 22(1)(b) …. 9.14 s 41 …. 7.35, 13.68 s 57 …. 13.68 Petroleum Act 1940 …. 11.67 Petroleum and Geothermal Energy Act 2000 …. 18.65 s 5 …. 9.6 Petroleum and Geothermal Energy Regulations 2000 Pt 3 …. 18.60 Petroleum and Geothermal Energy Regulations 2013 …. 18.65 Petroleum (Submerged Lands) Act 1982 …. 11.67 Planning Act 1982 s 53 …. 19.17 Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 …. 15.114 s 8(1) …. 15.126 Radiation Protection and Control Act 1982 …. 15.131 Recreational Greenways Act 2000 …. 9.30

River Murray Act 2003 …. 10.38 s 23 …. 3.51 s 26 …. 3.52 Roxby Downs (Indenture Ratification) Act 1982 …. 10.65, 18.68 Soil Conservation and Land Care Act 1989 s 13 …. 7.48 s 38 …. 20.4 Summary Offences Act 1953 s 53 …. 15.96 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2013 …. 18.38 Water Resources Act 1997 s 6(2)(a) …. 7.25 s 141 …. 7.25 Wilderness Protection Act 1992 s 22 …. 12.51 s 22(6) …. 12.51 s 23 …. 12.51 s 25 …. 12.51 s 33(6) …. 12.51 Zero Waste SA Act 2004 …. 16.2

Tasmania Aboriginal Lands Act 1995 …. 14.69 Animal Welfare Act 1993 s 6 …. 3.51 Constitution Act 1934 …. 5.39 Criminal Code Act 1924 s 13 …. 20.76

s 14 …. 20.76 Crown Lands Act 1986 …. 9.7 Environmental Management and Pollution Control Act 1994 …. 11.4, 11.81, 11.83 s 3 …. 10.45 s 3(1) …. 11.77, 20.69 s 8 …. 7.22 s 9(2) …. 7.19 s 10 …. 3.16 s 16 …. 11.78 s 23A …. 3.50 s 23A(3) …. 3.50 s 23A(4) …. 3.50 s 24 …. 11.77 ss 24–26 …. 10.45 s 24(1) …. 10.45, 11.6 s 25 …. 10.45, 11.78 s 25(1) …. 11.6 s 25A …. 10.45, 11.80 s 26 …. 11.6, 11.78 s 27 …. 10.45 s 27(1) …. 11.6 s 27(2) …. 11.6 s 27(2)–(4) …. 11.77 s 27(7) …. 11.95 s 28(2) …. 16.2 s 28(4)(c) …. 16.2 s 44 …. 20.4 s 48(1) …. 19.20

s 55 …. 20.73 s 55(1) …. 20.86 s 55A …. 20.81 s 57 …. 20.39 s 58 …. 20.57 s 58(1)(b) …. 20.54 s 58(2) …. 20.54 s 60 …. 20.59 s 60(1)(a) …. 20.86 s 74(1) …. 11.77 s 74(3)–(5) …. 11.13 s 74(6) …. 11.80 s 74(7) …. 11.80 s 74A(2) …. 16.25 s 74A(3) …. 16.25 s 74B …. 16.40 ss 74C–74G …. 16.40 ss 74E–74G …. 16.40 s 74G …. 16.40 s 74O …. 16.40, 16.47 s 74O(2) …. 16.47 s 74O(3)–(5) …. 16.47 s 74P …. 16.40 Sch 1 …. 7.24, 10.45 Sch 1 cl 3 …. 16.2 Sch 2 …. 10.45, 11.8, 11.78 Environment Protection Policy (Noise) 2009 cll 6–8 …. 15.24

Pt 4 …. 15.24 Pt 5 …. 15.24 Environmental Management and Pollution Control Act 1994 Pt 3 …. 15.43 Pt 7 Div 1A …. 15.38 s 3 …. 15.25, 15.59, 15.66 s 4 …. 15.33 s 5 …. 15.25, 15.26 s 5(2)(a) …. 15.29 s 5(3) …. 15.28 s 5(5) …. 15.25 s 5A …. 15.28 s 5B …. 15.80 s 20A …. 15.35 s 22 …. 15.61 s 23A …. 15.35 s 23A(3) …. 15.36 ss 24–26 …. 15.59 s 24(1) …. 15.59 s 25 …. 15.59 ss 25–27 …. 15.59 s 25(3) …. 15.66 s 25(6) …. 15.75 ss 27A–27K …. 15.59 s 28 …. 15.74 s 28(1) …. 15.43 s 29 …. 15.54, 15.74 s 30 …. 15.81

s 31 …. 15.86 s 32 …. 15.37 s 33 …. 15.37 s 34 …. 15.101 ss 35–36 …. 15.77 s 36 …. 15.77 s 37 …. 15.43, 15.46 ss 37–42A …. 15.46 s 38 …. 15.33, 15.46 s 39 …. 15.81 s 40 …. 15.48 ss 40–41 …. 15.48 s 41(3) …. 15.88 s 42 …. 15.48 s 42(2) …. 15.112 s 44 …. 15.91, 15.93 s 44(3) …. 15.91 s 44(6) …. 15.88 s 45(3) …. 15.92, 15.111 s 46 …. 15.98 s 46(5)(b) …. 15.98 s 47 …. 15.98 s 50 …. 15.107 s 50(1) …. 15.107 s 50(2) …. 15.107 s 50(3) …. 15.107 s 51 …. 15.107 s 51(1) …. 15.107

s 51(2) …. 15.107 s 51(3) …. 15.107 s 51A …. 15.25 s 53 …. 15.107 s 53(1) …. 15.107 s 53(2) …. 15.24, 15.107 s 53(3) …. 15.24, 15.29 s 53(4) …. 15.107 s 55 …. 15.36 s 59 …. 15.62 s 63 …. 15.99 s 63(1) …. 15.112 s 63(1)(a) …. 15.112 s 63(1)(b) …. 15.112 s 63(1)(c) …. 15.112 s 63(1)(d)(i) …. 15.112 s 63(1)(d)(ii) …. 15.112 s 74 …. 15.66 s 76 …. 15.59 s 77 …. 15.59 s 78 …. 15.111 s 79 …. 15.111 s 80 …. 15.59 ss 86–87 …. 15.63 ss 96A–96O …. 15.38 s 96D(1) …. 15.38 s 199 …. 15.93 Sch 2 …. 15.59

Environmental Management and Pollution Control Act 1994 (Distributed Atmospheric Emissions) Regulations 2007 …. 15.24 Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006 Sch 2 Pt 1 Div 2 …. 15.24 Environmental Management and Pollution Control (Underground Petroleum Storage Systems) Regulations 2010 …. 16.25, 16.33 Environmental Management and Pollution Control (Waste Management) Regulations 2000 reg 10 …. 16.17 reg 12 …. 16.17, 16.18 reg 12A …. 16.18 reg 12B …. 16.18 Fire Service Act 1979 s 29 …. 7.16 s 66(12) …. 7.16 Florentine Valley Paper Industry Act 1935 …. 10.65 Forest Management Act 2013 s 15 …. 8.21, 8.30 Sch 3 …. 12.66 Forest Practices Code …. 2.24 Forestry Act 1920 s 20 …. 12.66 s 22B …. 12.66 Forestry Rights Registration Act 1990 s 5 …. 3.10 Freedom of Information Act 1991 …. 22.24 Gordon River Hydro-electric Power Development Act 1982 …. 5.49 Hellyer Mine Agreement Ratification Act 1987 …. 10.65, 15.78 Historic Cultural Heritage Act 1995

s 57 …. 20.4 s 74 …. 20.8 Huon Valley Pulp and Paper Act 1959 …. 10.65 International Hotel Development Act 1985 …. 10.67 Judicial Review Act 2000 …. 22.19 Pt 5 …. 22.21 s 7 …. 19.20 ss 17–21 …. 22.20 Land Acquisition Act 1993 …. 2.28 Land Use Planning and Approvals Act 1993 …. 10.2, 11.77, 13.42 Pt 3 Div 2A …. 10.45, 11.80 Pt 5 …. 10.47 s 3 …. 10.2 s 4 …. 9.33 s 8 …. 7.24 s 13C …. 9.40 s 20 …. 9.60 s 20(3)–(6) …. 9.53 s 25(4) …. 15.78 s 27(4) …. 15.78 s 38 …. 9.49 s 51 …. 10.45 s 54 …. 9.37 s 60C …. 11.82 s 60C(4)–(7) …. 11.82 s 60C(8) …. 11.82 s 60C(9) …. 11.82 s 60D …. 11.82

s 60D(4) …. 11.82 s 60E …. 11.82 s 60F …. 11.82 s 60G …. 11.82 s 60G(5) …. 11.82 s 60G(6) …. 11.82 s 60H(2) …. 11.82 s 60H(4)(a) …. 11.82 s 60J …. 11.82 s 60K(1) …. 11.83 s 60K(2) …. 11.83 s 60K(3) …. 11.83 s 60K(5) …. 11.83 s 60L …. 11.83 s 60L(8) …. 11.83 s 60L(9) …. 11.83 s 60M …. 11.82 s 60N …. 11.84 s 60N(5) …. 11.84 s 60N(6) …. 11.84 s 60N(7) …. 11.84 s 60N(8) …. 11.84 s 60O …. 11.84 s 60O(5) …. 11.84 s 60P …. 11.84 s 60Q …. 11.84 s 60R …. 11.84 s 60R(4) …. 11.84

s 60R(5) …. 11.84 s 60S …. 11.85 s 60T …. 11.82, 11.85 s 60T(4) …. 11.85 s 60T(6) …. 11.85 s 60U …. 11.85 s 60U(5) …. 11.85 s 60V …. 11.85 s 60W …. 11.85 s 60X …. 11.85 s 60Y …. 11.85 s 61 …. 10.70 s 63(2) …. 15.38 s 64 …. 19.17, 21.4 s 71 …. 9.30 Sch 1 …. 9.60, 11.85 Land Use Planning and Approvals Regulations 2014 …. 10.2 reg 4 …. 9.49 Living Marine Resources Management Act 1995 …. 12.64, 14.55, 15.93 s 104 …. 12.64 s 105 …. 12.64 ss 106–112 …. 12.64 ss 118–124 …. 12.64 Local Government Act 1962 s 733d(3c)(b)(i) …. 19.17 Local Government Act 1993 s 200(1) …. 15.96 s 203 …. 15.96

Major Infrastructure Development Approvals Act 1999 …. 10.53, 10.59, 18.62 s 16 …. 10.59 s 20(5) …. 10.59 Marine Farming Planning Act 1995 …. 11.81 s 21(g)(a) …. 9.41 s 23 …. 11.81 Mineral Resources Development Act 1995 s 75(3)(f) …. 18.59 National Environment Protection Council (Tas) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks and Reserved Land Regulations 2009 reg 4 …. 12.76 National Parks and Reserves Management Act 2002 …. 12.52 s 16 …. 12.52 s 19 …. 12.67 s 19(6)–(8) …. 12.70 s 19(13) …. 12.70 s 20 …. 12.67 s 23 …. 12.67 s 25 …. 12.52

s 27 …. 12.69, 12.73 ss 33–47 …. 12.52 s 35 …. 12.75 Sch 1 …. 12.69 National Parks and Wildlife Act 1970 s 21 …. 9.18 Sch 4 …. 9.18 National Trust Act 2006 s 19 …. 7.47 Natural Resources Management Act 2002 …. 9.67 Nature Conservation Act 2002 …. 12.52, 12.66, 14.55, 14.69 s 27 …. 14.55 s 29 …. 14.55 s 30 …. 14.55 s 32 …. 14.55 s 34 …. 7.47 s 40 …. 7.47 s 41 …. 2.24 s 41A …. 2.24 s 73 …. 14.69 s 135 …. 14.46 Sch 1 …. 12.52 Northern Pulp Mill Agreement Act 1988 …. 10.65, 15.78 Petroleum (Submerged Lands) (Management of Environment) Regulations 2012 Pt 2 …. 18.60 Planning and Approvals Act 1993 s 64 …. 19.4 Plastic Shopping Bags Ban Act 2013 …. 16.2

s 3 …. 16.12 s 4 …. 16.12 Pollution of Waters by Oil and Noxious Substances Act 1987 …. 15.114 s 8(1) …. 15.126 Public Land (Administration and Forests) Act 1991 …. 9.11 s 14 …. 9.11 Radiation Protection Act 2005 …. 15.131 s 8 …. 15.131 Resource Management and Planning Tribunal Act 1993 …. 2.72 s 14 …. 22.3 s 16(1)(c) …. 19.55 s 16(1)(d) …. 22.39 s 16A …. 22.13 s 16A …. 22.13 s 22(1) …. 19.55 s 28 …. 21.23, 22.10 s 28(1) …. 22.9 Resource Planning and Development Commission Act 1997 …. 9.11 Sea Fisheries Regulations 1962 …. 5.42 Silicon Development Act 1986 …. 10.67 State Coastal Policy Validation Act 2003 s 5 …. 18.58 State Policies and Projects Act 1993 …. 9.41, 10.45, 11.79, 16.10 s 4 …. 9.33 s 5 …. 15.38 s 11 …. 15.40 ss 11–14 …. 15.38 s 12 …. 15.40

s 13 …. 9.41 s 13(1) …. 9.43 s 13C(b) …. 18.58 s 14 …. 15.38 s 16 …. 11.6 ss 16–28 …. 10.59 s 18 …. 11.79 s 18(2) …. 11.6, 11.78 s 18B …. 11.79 s 19(2) …. 11.11 s 20 …. 11.12, 11.79 s 20(1) …. 11.78 s 20(3) …. 11.13, 11.79 s 21(1) …. 11.80 s 22 …. 11.80 s 23 …. 11.80 s 25 …. 11.81 s 26 …. 11.80 s 26A …. 11.80 s 74 …. 11.79 s 74(2) …. 11.79 State Policy on Water Quality Management 1997 …. 15.24 Tasmanian Planning Commission Act 1997 …. 9.11 Tasmanian Regional Forest Agreement …. 6.38, 6.46 s 68 …. 6.38, 18.74, 18.75 Threatened Species Protection Act 1995 ss 13–22 …. 14.79 s 15 …. 14.79

s 16 …. 14.79 s 23 …. 14.79 s 25 …. 9.20, 14.79, 14.90 s 27 …. 9.20, 14.79 s 32 …. 20.4 Schs 3–5 …. 14.79 Water Efficiency Labelling and Standards Acts 2013 …. 18.38 Water Management Act 1999 …. 18.29 s 7 …. 9.6 s 270 …. 19.4 Wildlife (General) Regulations 2010 …. 14.55 cl 24 …. 14.55 cll 35–40 …. 14.55 cl 40 …. 14.55 cl 50–54 …. 14.55 Schs 1–7A …. 14.55 Workplace (Protection from Protesters) Act 2014 …. 2.42 s 6 …. 2.42 s 17 …. 2.42

Victoria Administrative Decisions Act 1978 s 11 …. 19.3 Alcoa (Portland Aluminium Smelter) Act 1980 …. 10.65, 15.78 Alpine Resorts Act 1983 …. 12.53 s 19 …. 12.53 Alpine Resorts (Management) Act 1997 …. 10.68, 12.53 Catchment and Land Protection Act 1994 …. 7.29, 9.69, 13.28, 14.56 Pt 3A …. 14.58

s 3 …. 7.10 s 4 …. 7.29 s 9 …. 9.69 s 12 …. 9.69 s 20 …. 3.51, 7.29, 18.77 s 21 …. 7.22, 7.29 s 22 …. 7.22 ss 23–36 …. 7.35 s 24 …. 7.33, 13.28 s 25 …. 9.69 s 26 …. 9.69 s 30 …. 13.28 s 31 …. 9.69 s 32 …. 9.69 s 33 …. 18.77 ss 33–36 …. 13.28 s 37 …. 3.52, 13.28, 18.77 ss 37–47 …. 20.4 s 38 …. 13.28 s 47A …. 18.77 Charter of Human Rights and Responsibilities Act 2006 …. 2.46 Civil and Administrative Tribunal Act 1998 …. 2.72 s 5 …. 19.24, 19.27 s 51A …. 22.2 s 60 …. 19.56, 19.58 s 83 …. 22.13 s 84 …. 22.13 s 88 …. 22.13

ss 88–93 …. 22.13 s 89 …. 22.13 s 94 …. 22.11 s 109 …. 22.9 s 123 …. 21.4 s 123(5) …. 21.13 s 124 …. 21.4 Sch 3 …. 22.11 Climate Change Act 2010 Pt 4 …. 17.46 s 14 …. 17.55 s 24 …. 17.46 Sch 1 …. 17.55 Coastal Management Act 1995 …. 18.57 Pt 3 …. 18.57 s 3 …. 18.57 s 8 …. 18.57 s 37 …. 18.57 Code of Practice for Timber Production 2007 …. 2.56, 8.45, 8.49, 9.26 Commissioner for Environmental Sustainability Act 2003 …. 8.20 s 3 …. 8.20 s 7 …. 8.20 s 8 …. 8.20 s 18 …. 8.20 Conservation, Forests and Lands Act 1987 …. 8.45, 8.49, 9.25, 12.54, 14.74 Pt 2 …. 12.53 Pt 5 …. 18.76 s 32 …. 9.25

ss 68–82 …. 12.54 s 69 …. 7.48, 10.49, 13.56, 18.77 s 70 …. 7.48 s 97 …. 12.76 s 98 …. 12.76 Conservation Trust Act 1973 s 3A …. 7.47 Constitution Act 1975 …. 5.39 Crown Land (Reserves) Act 1978 …. 9.33 Eastlink Project Act 2004 …. 10.65 Environment Effects Act 1978 …. 9.56, 11.4, 11.58 s 2 …. 11.58 s 3 …. 11.6, 11.8 s 4 …. 11.58 s 4(1) …. 11.6, 11.11 s 6 …. 11.58 s 6(2) …. 11.11 s 8 …. 10.28 s 8(2) …. 11.6, 11.11, 11.58 s 8(4) …. 11.6 s 9(1) …. 11.12 s 60(1)(e) …. 10.28 s 60(1)(f) …. 10.28 s 60(1A) …. 10.28 s 60(1B) …. 10.28 Environment Protection Act 1970 …. 7.48, 11.58, 15.17, 15.22, 15.113, 16.10, 19.22, 19.27, 20.19, 20.26, 20.33, 21.4, 21.5 Pt III Div 1A …. 15.43 Pt III Div 1B …. 15.43

Pt III Div 4A …. 15.43 Pt IX …. 16.2 Pt IX Div 1A …. 7.48, 15.43, 15.50 Pt IX Div 2AA …. 15.43 Pt IX Div 2AD …. 15.43 Pt IX Div 2B …. 15.43 Pt IX Div 3 …. 5.23 Pt IX Div 4 …. 15.43 s 1B …. 8.20 ss 1B–1L …. 7.33 s 1G …. 16.5 s 1H …. 16.5 s 1I …. 16.1 s 4 …. 15.22, 15.26, 15.59, 20.6 s 4(1) …. 15.43, 15.83, 20.69 ss 16–19 …. 15.38 s 16(1) …. 15.38 s 16A …. 16.4 ss 16A–19 …. 16.1 s 17A(1) …. 15.15 s 17A(2) …. 15.38 s 18(1) …. 15.38 s 18A(2) …. 15.40 s 18AF …. 15.49 s 18B …. 15.40 s 18C …. 15.40 s 18D(5) …. 15.40 s 18E …. 16.4

s 19 …. 15.40 s 19AA …. 15.72 s 19AB …. 15.72 s 19AD …. 15.49 ss 19AD–19AK …. 15.49, 15.83 s 19AF …. 15.80, 15.83 s 19AG …. 15.49 s 19AI(4) …. 15.49 s 19A …. 15.59 ss 19A–19D …. 15.61 ss 19A–19G …. 15.57 s 19B …. 15.61, 15.66 s 19B(4)–(4C) …. 15.61 s 19C …. 15.62, 15.63 s 19CA …. 15.79 ss 19D–19G …. 15.57 s 20 …. 15.59, 15.61, 15.63, 16.15 s 20(6)(a) …. 15.76 s 20(8)(ca)–(h) …. 15.61 s 20(9)(a)(i) …. 15.79 s 20(9)(a)(ii) …. 15.79 s 20A …. 15.61, 15.63, 15.66 s 20B …. 15.61 s 20C …. 15.38, 15.39, 15.66, 22.63 s 20C(3) …. 15.68 s 20C(4)–(5) …. 15.68 s 21 …. 15.75, 15.77 s 21(f) …. 15.76

s 23 …. 15.61 s 23A …. 15.79 s 24A …. 16.6 s 25 …. 15.64 s 26 …. 15.62, 15.76 s 26A …. 15.41 ss 26A–26E …. 15.57, 15.74 s 26B …. 15.41, 22.63 s 27(1) …. 15.111 s 27(1A) …. 15.111 s 27(2) …. 15.111 s 28 …. 15.93, 15.94 s 28B …. 15.93, 15.94, 20.4 s 28B(5) …. 15.111 s 30A …. 15.101 s 30B …. 20.81 s 30D(3) …. 15.111 s 31 …. 15.93, 15.94, 20.4 s 31A …. 15.77, 15.93, 20.4 s 31A(7) …. 15.111 s 31A(8) …. 15.111 s 31B …. 15.93, 20.4 s 31B(6) …. 15.111 s 31C …. 15.45, 15.46, 15.81, 15.83, 16.4 s 31C(1) …. 16.4 ss 32–37A …. 15.88 s 32(5) …. 19.22 s 32(5)(b) …. 19.22

s 33B …. 15.88 s 33B(1) …. 19.24, 19.25 s 35(2) …. 7.19 s 38 …. 15.38 s 39(1) …. 15.20, 15.22, 15.110, 20.40 s 40 …. 15.38 s 41(1) …. 15.20, 15.22 s 44 …. 15.38 s 45(1) …. 15.20, 15.22 ss 45A–45ZL …. 16.18 s 46 …. 15.24, 15.38 s 47 …. 15.93 s 47A …. 15.93 ss 48–48D …. 15.24 s 48A …. 15.93 s 48AB …. 15.93 s 48B …. 15.93 s 48C …. 15.93 s 49A …. 16.4 s 49AA …. 16.4 s 49AC …. 16.4 s 49AD …. 15.50, 16.4 s 49AE …. 16.4 s 49AF …. 16.4 s 49AG …. 16.4 s 49AH …. 15.50, 16.4 s 49AK …. 16.4 s 49AN …. 16.4

s 49AO …. 16.4 s 49AP …. 16.4 ss 49L–49S …. 15.38, 16.1 s 49R …. 15.43 ss 50–50CA …. 16.4 ss 50B–50BI …. 16.1 s 50BH …. 16.4 s 50BI …. 15.43 ss 50R–50RE …. 15.38, 16.1 s 50RE …. 15.43 ss 50S–50XC …. 16.6 ss 50SA–50SAB …. 16.4 s 51(a) …. 15.55 ss 51A–51G …. 15.45 s 51F …. 15.45 s 53 …. 15.75 ss 53–53G …. 16.18 ss 53A–53E …. 15.59 s 53B …. 15.77, 16.18 s 53C …. 16.18 s 53D …. 15.61, 16.18 s 53F …. 16.18 s 53G …. 15.62 s 53I …. 15.59 ss 53R–53ZE …. 15.81 s 53V …. 15.26 s 54 …. 15.75 s 54B …. 15.75

s 55 …. 20.28 s 55A …. 15.93 s 57 …. 15.87 s 57A …. 16.31 s 57AA …. 15.83 s 57AA(3) …. 15.83 s 57AA(4) …. 15.83 s 57AA(6) …. 15.83 s 59 …. 20.25 s 59AB …. 20.30 s 59E …. 20.26 s 60A …. 15.95 s 62 …. 20.7 s 62A …. 16.43, 20.6, 20.7 s 62A(3) …. 15.111 s 62B …. 20.7 s 62C …. 20.30 s 63 …. 20.54 s 63B …. 20.9 s 64 …. 15.99 s 64A …. 15.113, 21.4, 21.5 s 65(1) …. 3.16 s 65A(2) …. 15.112 s 65A(4) …. 15.112 s 66 …. 20.7 s 66B …. 20.59 s 66B(1A)(b) …. 20.86 s 66B(1A)(c) …. 20.86

s 66B(4) …. 20.59 s 66C …. 20.30 s 67AC …. 20.116 s 67AC(1) …. 15.112 s 67AC(2) …. 15.112 s 67AC(2)(a) …. 15.112 s 67AC(2)(b) …. 15.112 s 67AC(2)(c) …. 15.112 s 67AC(2)(d) …. 15.81 s 67B(1) …. 15.77 s 67C(2) …. 15.77 s 67D …. 15.99, 20.19 s 67D(4) …. 15.100, 20.20 s 67D(6) …. 15.100 s 67E …. 15.100, 20.19 s 67G …. 15.99 s 69D …. 20.29 s 70 …. 15.81 s 71(2B) …. 15.78 s 72 …. 15.41 s 107B …. 15.88 Sch 2 …. 16.6 Environment Protection (Distribution of Landfill Levy) Regulations 2002 …. 16.6 Environment Protection (Industrial Waste Resource) Regulations 2009 …. 16.15 Pt 2 …. 16.15 Pt 3 …. 16.18 Pt 4 …. 16.18

Pt 5 …. 16.15 reg 5(1) …. 16.16 regs 7–9 …. 16.1 reg 10 …. 16.15 reg 11 …. 16.15 reg 15 …. 16.18 Sch 1 …. 16.15 Sch 2 …. 16.15 Environment Protection (Residential Noise) Regulations 2008 …. 15.24 Environment Protection (Scheduled Premises and Exemptions) Regulations 2007 …. 15.57, 15.59 Environment Protection (Ships’ Ballast Water) Regulations 2006 …. 15.24, 16.18 Fisheries Act 1995 …. 12.65, 14.75, 18.48 Pt 10 …. 2.19, 2.26 s 3 …. 18.9 s 10 …. 3.8 s 28 …. 7.33 s 28(5) …. 12.65 s 42 …. 7.33 s 56 …. 18.47 s 64 …. 18.49 s 68 …. 15.93 ss 69–73 …. 18.9 ss 69–89 …. 7.33 s 88 …. 12.65, 18.9 s 88(2) …. 12.65 s 89 …. 12.65, 18.5, 18.9 s 153B …. 18.48

Flora and Fauna Guarantee Act 1988 …. 2.56, 9.26, 14.56, 14.57, 14.73, 14.91 s 3 …. 14.74 s 4 …. 14.74 s 4(1)(f) …. 14.74 s 4(1)(g) …. 14.74 s 4(2) …. 14.74 s 5 …. 14.74 s 10 …. 14.75 s 11(1) …. 14.75 s 11(3) …. 14.75 s 12 …. 14.75 s 17 …. 14.76 s 19 …. 14.76 s 20 …. 14.76 ss 21–23 …. 14.76 s 26 …. 14.77, 20.4 s 32 …. 14.77 s 35 …. 14.77 s 36 …. 14.77 s 39 …. 14.77 s 40 …. 14.77 ss 41–41B …. 14.77 s 43 …. 14.77 s 44 …. 14.77 s 45 …. 14.57 s 46 …. 14.57 s 47 …. 14.57 s 47(2) …. 14.57

s 48(4) …. 14.57 s 48(5) …. 14.57 s 49 …. 14.57 s 51 …. 14.57 s 52 …. 14.75 s 53 …. 14.75 s 61 …. 14.78 s 62 …. 14.78 Sch 1 …. 14.74, 14.75 Sch 2 …. 14.75 Flora and Fauna Guarantee Regulations 2001 Sch 1 …. 14.75 Sch 2 …. 14.75 Forests Act 1958 s 22 …. 18.76 s 42(6) …. 12.66 s 50 …. 7.52, 12.66 ss 58–60 …. 12.66 Forests (Laminex Industries Agreement) Act 1989 …. 10.65 Forests (SEAS Sapfor Ltd Agreement) Act 1993 …. 10.65 Forests (Victree Forests Agreement) Act 1989 …. 10.65 Freedom of Information Act 1982 …. 22.24 Health Act 1958 Pt III …. 3.54 Heritage Act 1995 …. 10.49 Pt 4 Div 2 …. 7.47 s 85 …. 10.49 s 86 …. 7.47, 10.49

s 161 …. 20.4 Heritage Rivers Act 1992 …. 12.53, 12.72, 13.29 s 10 …. 12.72, 13.28 ss 10–13 …. 13.28 s 12 …. 12.72, 13.28 s 15 …. 12.72 s 16 …. 12.72 Sch 1 …. 12.53 Sch 2 …. 12.53 Schs 3–5 …. 13.29 Interpretation of Legislation Act 1984 s 35 …. 7.15, 7.21 s 35(a) …. 2.65 s 35(b) …. 4.44 Land Acquisition and Compensation Act 1986 …. 2.28 Land Act 1958 …. 9.7 Land Conservation Council Act 1970 s 5(1)(a) …. 9.10 Local Government Act 1989 ss 181A–181E …. 10.49 Major Transport Projects Facilitation Act 2009 …. 11.4 Mineral Resources (Sustainable Development) Act 1990 Pt 7 …. 18.59 s 2A …. 18.59 s 6 …. 18.62 s 6(3) …. 18.62 s 7 …. 18.62 s 9 …. 9.6

s 26 …. 18.59 s 41A …. 18.59 s 78 …. 9.14 s 79 …. 18.59 Sch 3 …. 18.62 Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2010 cl 17 …. 5.41 cl 18 …. 5.41 Sch 3 …. 5.41 National Environment Protection Council (Vic) Act 1995 …. 15.3 s 6(1) …. 15.4 s 14(1) …. 15.4 s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 21 …. 15.6 s 28(1) …. 15.6 National Parks Act 1975 …. 12.53, 12.65 Pt III …. 12.53 s 17 …. 12.53, 12.67 ss 17–25 …. 12.69, 12.73 s 17A …. 12.53 s 18 …. 12.53, 12.67 s 21B …. 12.53 s 25A …. 12.75 s 26A …. 12.75

s 28 …. 12.72 Sch 2 …. 12.53 Sch 2A …. 12.53 Sch 2B …. 12.53 Sch 3 …. 12.53 Sch 5 …. 12.53 Sch 6 …. 12.53 National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 …. 18.48 National Parks Regulations 2013 …. 12.53 Nuclear Activities (Prohibitions) Act 1983 …. 15.131, 18.68 Parks Victoria Act 1998 …. 12.53 s 16A …. 12.53 Petroleum Act 1998 s 137 …. 18.62 Petroleum Regulations 2011 regs 8–12 …. 18.60 Pipelines Regulations 2007 Pt 7 …. 18.60 Planning and Environment Act 1987 …. 2.65, 8.38, 10.2, 10.28, 10.30, 10.31, 10.56, 10.70, 11.58, 17.57, 19.42 Pt 1A …. 9.39 Pt 3 Div 2 …. 9.49 Pt 3A …. 9.44 Pt 3C …. 9.44 Pt 3D …. 9.44 Pt 4 Div 1 …. 10.9 Pt 4AA …. 11.99 Pt 8 …. 10.56

s 3 …. 10.2 s 4 …. 9.1, 9.39 s 4(1)(a) …. 9.1 s 4A …. 9.44 s 6 …. 9.55 s 6(1)(a) …. 9.1 s 6(4) …. 9.53 s 7(4) …. 9.43 s 8 …. 9.49, 10.30 s 8A …. 9.49, 10.30 s 9 …. 9.49, 10.30 s 12(2)(a) …. 16.25 s 12(2)(b) …. 9.56 s 12B …. 9.2 s 13 …. 10.29 s 16 …. 9.33 s 46 …. 9.33 s 47 …. 10.2 s 51 …. 10.9 s 52(1)(a) …. 10.29, 19.23 s 52(1)(d) …. 10.29 s 52(1A) …. 10.29 s 52(2A) …. 10.29 s 52(2B) …. 10.29 s 52(3) …. 10.29 s 52(4) …. 10.29 s 55 …. 10.6 s 56 …. 10.6

s 57 …. 10.9 s 57(1) …. 10.30, 19.26 s 57(2) …. 10.30 s 59 …. 9.49 s 60(1) …. 9.39, 10.31 s 60(1)(d) …. 10.6 s 60(1)(e) …. 10.10, 10.11 s 61(3) …. 10.6 s 62(6) …. 10.49 s 77 …. 19.4 ss 77–81 …. 10.70 s 80 …. 19.4 s 81 …. 19.4 s 82 …. 10.70, 19.23, 19.42, 19.58 s 82AA …. 10.70 s 82B …. 10.70, 19.23 s 83(2) …. 19.58 s 83A …. 19.58 s 83A(2) …. 19.58 s 84B …. 10.70 s 84B(1)(h) …. 10.49 s 89 …. 19.23 s 95 …. 9.33 s 96B(1)(a) …. 10.30 s 96C …. 10.30 s 96C(1)(c) …. 10.30 s 97B …. 10.56 s 97B(1) …. 10.31

s 97E(1)–(3) …. 10.31 s 97E(5) …. 10.31 s 97F(1) …. 10.31 s 97M …. 10.31 s 114 …. 19.40, 20.12 s 117 …. 19.23 s 119 …. 20.12 s 125 …. 19.40 s 126 …. 10.2, 13.27 s 173 …. 10.47, 10.49 s 174 …. 9.30, 10.47 s 175 …. 10.49 s 180 …. 10.49 s 184(1) …. 10.49 s 201F …. 10.56 ss 201G–201Q …. 10.56 Planning and Environment Regulations 2015 …. 10.2 reg 41(1)(k) …. 10.30 reg 42 …. 10.30 Pollution of Waters by Oil and Noxious Substances Act 1986 …. 15.114 s 8(1) …. 15.126 Pollution of Waters by Oil and Noxious Substances Regulations 2012 …. 15.114 Protection Act 1970 s 34 …. 20.4 s 35 …. 20.4 Public Health and Wellbeing Act 2008 Pt 6 Div 1 …. 15.96 s 58(3) …. 15.96

s 58(4) …. 15.96 s 62(3)–(4) …. 15.96 Radiation Act 2005 …. 15.131 Road Management Act 2004 Sch 3 cl 10 …. 7.19 Sentencing Act 1991 s 5(4) …. 20.98 s 7 …. 20.93 s 76 …. 20.93 s 109 …. 20.26 s 112(2) …. 20.26 State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 …. 16.29, 16.30, 16.31 cl 14 …. 16.31 cl 14(2) …. 16.31 cl 14(3) …. 16.31 cl 32 …. 16.25, 16.28, 16.31 s 6 …. 16.28 s 7 …. 16.28 s 8 …. 16.28 s 9 …. 16.28 s 10 …. 16.28 s 12 …. 16.28 s 14 …. 16.28 s 14(b) …. 16.28 s 15 …. 16.28 s 16 …. 16.28 s 17 …. 16.28 s 18 …. 16.28

s 19 …. 16.28 State Environment Protection Policy (Groundwaters of Victoria) 1997 …. 15.24 State Environment Protection Policy (Waters of Victoria) 1988 …. 15.24 State Environment Protection Policy (Waters of Victoria) 2003 …. 15.38 State Environmental (Cockburn Sound) Policy 2005 …. 15.24 Sustainability Victoria Act 2005 s 4 …. 8.20 s 6 …. 7.22 Sustainable Forests (Timber) Act 2004 …. 9.21, 20.19 Pt 8A …. 20.19 s 1 …. 9.1 s 5 …. 8.20, 9.1 s 5(4)(b) …. 8.56 s 6 …. 18.76 s 27 …. 2.19 s 40 …. 18.76 s 44 …. 18.76 s 46 …. 18.76 Traditional Owner Settlement Act 2010 …. 14.70 s 80 …. 14.70 ss 82–90 …. 14.70 Transport Integration Act 2010 …. 17.59 s 10 …. 17.59 s 19 …. 8.56 Victorian Environmental Assessment Council Act 2001 s 6 …. 9.10 Waste Management Policy (Ships’ Ballast Water) 2004 …. 15.24 Waste Management Policy (Siting, Design and Management of Landfills)

2004 …. 16.1 Waste Management Policy (Solid Fuel Heating) 2004 …. 16.1 Waste Management Policy (Used Packaging Materials) 2010 …. 16.1, 16.10 Water Act 1989 …. 9.69, 17.57, 18.29 s 7 …. 9.6 s 8 …. 3.14 s 8(7) …. 3.14 s 15(1)(c) …. 3.54, 21.21 s 32A(11) …. 9.69 s 40 …. 7.33 s 157 …. 3.46 s 213 …. 7.31 Water (Commonwealth Powers) Acts 2008 …. 18.33 Water Efficiency Labelling and Standards Acts 2005 …. 18.38 Wildlife Act 1975 …. 12.53, 12.54, 14.56 s 3 …. 14.56 s 7A …. 14.56 s 12 …. 12.54 s 14 …. 7.52, 12.54 s 15(2) …. 12.54 s 20 …. 14.56 ss 22–28K …. 14.56 ss 25A–25F …. 14.56 s 28A(1)(e) …. 14.70 s 28G(2)(c) …. 14.70 ss 32–34 …. 12.54 s 33 …. 12.54 s 35 …. 14.56

s 43 …. 14.56 s 44 …. 14.56 s 47 …. 14.56 s 47A …. 14.56 s 50 …. 14.7, 14.56 s 58 …. 14.56 s 73 …. 12.54 s 86 …. 14.56 s 86A …. 14.56 Wildlife (Game) Regulations 2012 …. 14.56 Wildlife Regulations 2013 …. 14.56 Wildlife (Sate Game Reserves) Regulations 2014 …. 14.56 Wrongs Act 1958 s 51 …. 3.36

Western Australia Aboriginal Affairs Planning Authority Act 1972 s 4 …. 14.71 Acts Amendment (Game Birds Protection) Act 1992 …. 14.59 Agriculture and Related Resources Protection Act 1976 …. 14.60, 14.61 s 6 …. 14.61 s 6(6) …. 14.61 Alumina Refinery (Worsley) Agreement Amendment Act 1978 …. 10.66, 15.78 Broken Hill Proprietary Steel Industry Agreement Act 1952 …. 10.66 Carbon Rights Act 2003 s 6 …. 3.10 Civil Liability Act 2002 …. 3.37 s 5W …. 3.37

Conservation and Land Management Act 1984 …. 12.55, 12.66 Pt 2 Div 3 …. 12.66 s 4 …. 12.75 s 6 …. 12.55 s 7 …. 12.55 s 13A …. 12.66 s 13C …. 12.66 s 13D …. 12.66 s 16 …. 7.48 ss 26A–26H …. 12.66 s 45 …. 12.55 s 53 …. 7.35, 12.67 s 54 …. 12.66, 12.67 ss 54–56 …. 9.17 s 55 …. 7.35, 12.66 s 56 …. 9.17, 12.67 s 57 …. 12.67 s 58 …. 12.67 s 62 …. 12.55 s 62(1)(da) …. 12.66 s 62(2) …. 12.55 s 62A …. 12.66 s 101C …. 12.76 Constitution Act 1889 …. 5.39 Contaminated Sites Act 2003 s 3(2) …. 16.33, 16.42 s 4 …. 16.25 s 11 …. 16.41

ss 13–18 …. 16.41 ss 19–21 …. 16.26 s 23 …. 16.41 ss 24–27 …. 16.41 s 27(2a) …. 16.41 s 27(2b) …. 16.41 s 27(3) …. 16.41 s 28 …. 16.41 s 29 …. 16.41 s 31 …. 16.41 s 32 …. 16.41 s 33 …. 16.41 s 34 …. 16.41 ss 36–39 …. 16.41 s 40 …. 16.41, 16.47 ss 41–52 …. 16.42 s 44 …. 16.42 s 49 …. 16.42 s 50 …. 16.41 s 51 …. 16.42 s 55(6) …. 16.47 s 58(6) …. 16.33 s 59 …. 16.33 s 62 …. 16.36 s 63 …. 16.36 s 64 …. 16.41 s 65 …. 16.41 s 67 …. 16.47

ss 69–72 …. 16.44 s 73 …. 16.42, 16.45 s 77(1) …. 16.47 Sch 1 …. 16.41 Contaminated Sites Regulations 2006 Pt 9 …. 16.44 reg 5 …. 16.25 regs 7–12 …. 16.26 reg 26 …. 16.41 reg 28 …. 16.41 reg 31 …. 16.42 reg 32 …. 16.42 Sch 3 …. 16.44 Criminal Code Act Compilation Act 1913 s 23 …. 20.76 s 24 …. 20.76 Environmental Protection Act 1986 …. 3.37, 7.33, 10.42, 10.66, 11.4, 13.30, 13.39, 15.21, 15.70, 16.10 cl 12 …. 10.66 Pt III …. 15.38 Pt IV …. 11.68 Pt V …. 20.49, 20.76 Pt VA …. 15.43 Pt VIIA …. 16.6 s 3 …. 7.14, 10.42, 16.42 s 3(1) …. 11.70, 15.25, 15.108, 16.33 s 3(3) …. 15.24 s 3A …. 15.21, 15.26 s 3A(2)(a) …. 15.26

s 4 …. 11.70 s 4A(1) …. 8.56 s 5 …. 7.19 s 6 …. 15.78 s 16(e) …. 9.1 s 26 …. 15.38, 15.40 s 27 …. 15.40 s 33 …. 11.72, 15.38 s 34 …. 15.40 s 36 …. 15.40 s 37 …. 15.38 s 37A …. 15.15 s 37B(2) …. 11.68 s 38 …. 10.42, 11.8, 11.69 s 38(1) …. 10.42, 11.6 s 38(2) …. 10.42, 11.6 s 38(4) …. 11.71 s 38(5) …. 11.6, 11.71 s 38(5a) …. 11.6 s 38(5c) …. 11.6 s 38(5e) …. 11.6 s 38A …. 11.6, 11.71 s 39 …. 11.6 s 39A(1)(b) …. 11.73 s 39A(2) …. 11.71 s 39B …. 11.2 s 39B(1) …. 11.72 s 39B(4) …. 11.72

s 40(2)(c) …. 11.12, 11.76 s 40(4) …. 11.75 s 40(6)(b) …. 11.75 s 40B …. 11.71 s 41 …. 11.69, 11.71 s 41(2)(d) …. 11.11 s 41A …. 11.71 s 43A …. 11.71 s 44 …. 11.14, 11.75 s 44(3) …. 11.72 s 45 …. 11.72 ss 45–45B …. 11.75 s 45(5) …. 11.70 s 45C …. 11.76 s 46 …. 11.93, 11.94 s 48 …. 11.94, 15.111 s 48C(1)(a) …. 9.59 s 48I …. 10.42 s 48I(2) …. 10.42 s 48I(3)(c) …. 10.42 s 49 …. 20.48 s 49(2) …. 15.24 s 50 …. 16.15 ss 50A–50D …. 15.26 s 50A(1) …. 15.108 s 50A(2) …. 15.108 s 50B(1) …. 15.108 s 50B(2) …. 15.108

s 50C …. 15.108 s 51(a) …. 15.55 s 51(b) …. 15.35 ss 51A–51T …. 13.30 s 51B …. 13.30 s 51C …. 13.30 s 51D …. 13.30 s 51E(1) …. 11.69 s 51E(5) …. 11.69 s 51F …. 11.69 s 51O(2) …. 13.30 s 51O(3) …. 13.30 s 51Q …. 13.30 s 51S …. 13.30, 20.12 s 51S(5) …. 13.30 s 51S(6) …. 13.30 ss 52–55 …. 15.57 s 53 …. 15.111 s 54(2)(b) …. 15.61 s 54(3) …. 15.66 s 54(4) …. 15.66 s 56 …. 15.59 s 57(2)(a) …. 15.68 s 57(2)(b) …. 15.61 s 57(3) …. 15.66 s 57(3)(b) …. 15.68 s 57(4) …. 15.66 s 58 …. 15.111

s 59 …. 15.63 s 59(1)(a)(i) …. 15.79 s 59A …. 15.79 s 60 …. 15.39 s 60(1) …. 15.66 s 60(2) …. 15.68 s 60(3) …. 15.68 s 61(2) …. 15.64 s 62 …. 15.75 s 62A …. 15.43 s 62A(1)(o) …. 20.69 s 62A(1)(p) …. 20.69 s 62A(1)(q) …. 16.2 s 63 …. 15.62 s 64 …. 15.64 s 65 …. 15.91, 15.93, 20.4 ss 65–68 …. 15.97 s 65(1) …. 15.93 s 65(1a) …. 15.43 s 65(2) …. 20.6 s 68A …. 15.91, 20.4 s 69 …. 15.93, 15.97, 20.4, 21.4 s 70 …. 15.61, 20.4 s 71 …. 15.93, 15.97 s 71(5) …. 15.112 s 72 …. 15.37 s 73 …. 15.92, 15.93 s 73A …. 15.91, 20.4

s 74 …. 20.81 ss 74–74B …. 15.108 ss 74–75 …. 15.101 s 74(1) …. 20.81 s 74(1)(a) …. 20.85 s 74A …. 20.81 s 74B …. 20.81 s 75 …. 20.81 s 75(1) …. 15.101 s 79 …. 15.24 s 81 …. 15.93 ss 86A–86G …. 15.77 s 86C …. 15.77 s 86G …. 15.77 s 99Q …. 15.108 s 99T …. 15.112 s 99U …. 15.112 s 99X(1) …. 15.112 s 99X(5) …. 15.112 s 99X(6) …. 15.112 s 99Y(1)(a) …. 15.112 s 99Z …. 15.113 s 99ZA …. 15.112 s 99ZA(1)(a) …. 15.112 s 99ZA(1)(b) …. 15.112 s 99ZA(1)(c) …. 15.112 s 99ZA(4) …. 15.112 s 100(1) …. 11.95

s 100(2) …. 11.95 s 101 …. 11.95 ss 102–104 …. 15.88 s 102(3) …. 15.88 s 102(4) …. 15.89 s 103(1)(a) …. 20.4 s 103(2) …. 15.88 s 103(3) …. 15.89 s 104(2) …. 15.89 s 114(1) …. 20.25 s 115 …. 20.30 s 118 …. 20.60 s 118(1) …. 20.59 s 118(1)(b)(i) …. 20.86 s 122A …. 15.41 s 481 …. 11.6 Sch 1 …. 15.108 Sch 2 …. 15.59 Sch 5 …. 13.30 Sch 6 …. 13.30 Environmental Protection (Clearing of Native Vegetation) Regulations 2004 reg 5 …. 13.30 Environmental Protection (Controlled Waste) Regulations 2004 reg 2 …. 16.15 Environmental Protection (NEPM-UPM) Regulations 2013 …. 16.10 Environmental Protection (Noise) Regulations 1997 regs 5–7 …. 15.24 reg 9 …. 15.24

regs 11–16 …. 15.24 reg 18 …. 15.24 Environmental Protection Regulations 1987 reg 2C …. 11.6, 11.68, 11.71 reg 23(1)(b) …. 16.3 Environmental Protection Regulations 2007 reg 4 Sch 1 …. 15.57 Fish Resources Management Act 1994 …. 2.59 s 68 …. 18.47 s 140 …. 18.47 Fisheries Act 1905 s 26A …. 15.93 Fisheries Adjustment Schemes Act 1987 s 14G …. 2.19 Fishing and Related Industries Compensation (Marine Reserves) Act 1997 …. 2.26, 18.48 Freedom of Information Act 1992 …. 22.24 Heritage of Western Australia Act 1990 …. 10.42, 10.43 s 3 …. 10.43 s 4(3) …. 10.43 s 5 …. 10.43 s 29 …. 7.47 s 46 …. 10.43 s 47 …. 10.43 s 51 …. 10.43 s 59 …. 20.4 s 78 …. 10.43 Iron Ore Beneficiation (BHP) Act 1996 cl 9 …. 10.66

Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 …. 10.65 Iron Ore (Hope Downs) Agreement Act 1992 cl 39 …. 10.66 Iron Ore (Marillana Creek) Agreement Act 1991 …. 10.65, 15.78 Iron Ore (Yandicoogina) Agreement Act 1996 cl 13 …. 10.66 Land Administration Act 1997 …. 9.7 Pt 4 …. 12.55 s 42 …. 12.55 Mineral Sands (Allied Eneabba) Agreement Amendment Act 1988 …. 10.66 Mineral Sands (Cooljarloo) Mining and Processing Act 1988 …. 10.66 cl …. 10.66 Mining Act 1978 …. 13.39 s 26 …. 18.62 s 63AA …. 18.59 s 70O …. 18.60 s 74(1)(ca)(i) …. 18.60 s 82(1)(ga) …. 18.60 s 82A(2)(a) …. 18.60 s 84AA …. 18.60 Mining Act 1978 ss 23–24A …. 18.62 Mining Rehabilitation Fund Act 2012 …. 18.60 s 11 …. 18.60 National Environment Protection Council (WA) Act 1996 …. 15.3 s 1J …. 15.18 s 6(1) …. 15.4 s 14(1) …. 15.4

s 14(3) …. 15.4 s 15 …. 15.6 s 16 …. 15.6 s 18 …. 15.6 s 19 …. 15.6 s 19AA …. 15.18 s 19AB …. 15.18 s 21 …. 15.6 s 28(1) …. 15.6 National Trust of Australia Act 1964 s 21A …. 7.47 Natural Gas (Canning Basin Joint Venture) Agreement Act 2013 …. 10.65 Nickel Refinery (BHP Billiton Nickel West Pty Ltd) (Termination of Agreements) Agreement Act 2008 …. 10.65 North-West Gas Development (Woodside) Act 1979 …. 10.65 Petroleum and Geothermal Energy Resources (Environment) Regulations 2012 …. 18.65 Pt 2 …. 18.60 Pt 4 …. 18.60 reg 9 …. 18.65 reg 15(9) …. 18.65 Petroleum Pipelines Act 1969 s 10 …. 18.59 Petroleum Pipelines (Environment) Regulations 2012 Pt 2 …. 18.60 Pt 4 …. 18.60 Petroleum (Submerged Lands) (Environment) Regulations 2012 Pt 2 …. 18.60 Pt 4 …. 18.60

Planning and Development Act 2005 …. 9.35, 9.59, 10.2, 13.39, 18.58, 19.28, 19.54 s 4 …. 10.2 s 4(1) …. 10.42 s 4(3) …. 9.43 s 5 …. 9.35 s 6 …. 9.35 s 25 …. 9.59 s 27(b) …. 9.59 s 32 …. 9.59 s 39 …. 9.59 s 48D …. 9.59 s 48F …. 9.59 s 48J …. 9.59 s 69 …. 10.44 s 77 …. 18.58 s 82 …. 9.59 s 84 …. 9.49 s 116 …. 18.58 s 119 …. 10.44 s 121 …. 10.44 s 124(1) …. 9.59 s 133 …. 9.35 s 135 …. 16.33 s 138AA …. 11.6 s 138AB …. 11.6 s 162 …. 9.40, 10.2, 10.42 s 163 …. 10.42, 10.43 s 195 …. 10.44

s 216 …. 19.20, 20.12 s 217 …. 20.4 s 222 …. 10.43 s 236 …. 10.70 s 242 …. 10.70, 19.20, 19.28, 19.54 s 243 …. 19.56 s 246 …. 10.70, 10.71 s 254 …. 10.70 s 256(1) …. 10.44 Sch 1 …. 18.58 Sch 7 cl 4(2) …. 10.44 Planning and Development (Development Assessment Panels) Regulations 2011 …. 10.42 Planning and Development Regulations 2009 …. 10.2 Pollution of Waters by Oil and Noxious Substances Act 1987 …. 15.114 s 8(1) …. 15.126 Public Works Act 1902 …. 9.35 s 4 …. 9.35 Radiation Safety Act 1975 …. 15.131 Rights in Water and Irrigation Act 1914 …. 18.29 Soil and Land Conservation Act 1945 …. 13.30 Pt IVA …. 18.77 s 22 …. 18.77 s 26 …. 18.77 ss 30A–30F …. 13.30 s 32 …. 13.30, 18.77, 20.4 State Administrative Tribunal Act 2004 …. 2.72, 19.28 s 37 …. 19.54 s 37(1) …. 19.54

s 38 …. 19.56 s 64 …. 22.11 s 87 …. 22.9 s 87(1) …. 22.9 s 90 …. 21.4 s 91 …. 21.4 Swan and Canning Rivers Management Act 2006 …. 9.46 Town Planning and Development Act 1928 …. 9.59 cl 11 …. 9.59 cl 11A …. 9.59 Sch 1 …. 9.59 Waste Avoidance and Resource Recovery Act 2007 …. 16.2 ss 45–47 …. 16.5, 16.7 Waste Avoidance and Resource Recovery Levy Regulations 2008 reg 5(1)(b) …. 16.2 Water Efficiency Labelling and Standards Acts 2006 …. 18.38 Western Mining Corporation Limited (Throssell Range) Agreement Act 1985 cl 37 …. 10.66 Wildlife Conservation Act 1950 …. 14.59, 14.61, 14.71 s 6 …. 14.59 s 6(2) …. 14.59 s 12D …. 12.73 s 14 …. 14.59 s 14(2) …. 14.59 s 14(2)(ba) …. 14.59 s 15 …. 14.60 s 15A …. 14.59 s 16 …. 14.60

s 16A …. 14.60 s 17 …. 14.60 s 17A …. 14.60 s 23 …. 14.71 s 23B …. 14.61 s 23C …. 14.61 s 23D …. 14.61 s 23E …. 14.61 s 23F …. 14.79 s 23F(2) …. 14.61 s 23F(4) …. 14.61 s 23F(6) …. 14.61 s 23F(8) …. 14.61 Wildlife Conservation Regulations 1970 Pt 2 …. 14.60 Wood Processing (Wesbeam) Agreement Act 2002 …. 10.65

China Constitution of the People’s Republic of China s 26 …. 2.45

International Aarhus Convention 1998 …. 2.46, 4.20 Agenda 21 …. 8.7, 8.9, 8.10, 8.13 Ch 8 …. 8.9 Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment 1986 …. 5.12, 14.28 Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1974 …. 5.12, Pt D.7, 14.28

Antarctic Treaty 1959 …. 4.27, 5.12 art IX …. Pt D.8 Australia–Indonesia Zone of Cooperation Treaty 1982 …. 4.25 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal …. 5.12, 16.20 Annex IV s A …. 16.20 art 10(1) …. 16.22 art 11 …. 16.20, 16.21, 16.22 Basel Convention on the Trade or Transportation of Hazardous Waste across International Borders …. 4.30 China (China–Australia Migratory Bird Agreement: CAMBA) …. Pt D.7 Convention for the Conservation of Antarctic Seals …. 5.12 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region …. 15.136 Convention on Biological Diversity 1992 …. 4.4, 4.10, 4.13, 4.24, 4.30, 5.12, 6.30, 8.7, Pt D.2 art 1 …. 4.16 art 2 …. Pt D.5 art 8 …. Pt D.2 art 10 …. Pt D.6 art 15 …. Pt D.6 art 16 …. 4.16 art 20 …. 4.16, 4.30, 4.31, 4.32, 4.36 art 20(b) …. 4.32, 4.35, 4.36 art 20(g) …. 4.32, 4.36 art 26 …. 4.21 art 27 …. 4.22, 4.23 Preamble …. 4.16, 12.68 Convention on International Trade in Endangered Species …. 4.5, 4.11, 4.30, 5.12, 14.2, 14.5

Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 …. 5.12 Convention on the Conservation of Antarctic Marine Living Resources …. 5.12 Convention on the Conservation of Migratory Species of Wild Animals 1979 …. 5.12, Pt D.7, 14.28 Appendix I …. Pt D.7 Appendix II …. Pt D.7 Convention on the Continental Shelf …. 5.12 Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter …. 15.136 Convention on the Territorial Sea and the Contiguous Zone …. 5.12 Convention on Wetlands of International Importance 1971 …. 4.44, 5.12 art 2 …. 12.22 Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (the Waigani Convention) 1995 …. 16.22, 16.24 Convention to Combat Desertification …. 5.12 European Convention on Human Rights …. 2.46, 17.36 art 2 …. 17.36 art 8 …. 2.45, 17.36 art 13 …. 2.45 Intergovernmental Agreement on the Environment 1992 …. 6.25, 6.46 s 1.5 …. 6.48 Sch 3 …. 6.25 Sch 3 cl 1 …. 6.25 Sch 3 cl 5 …. 6.48 International Convention for the Prevention of Pollution from Ships 1973 …. 4.21, 4.24, 5.12, 15.114, 15.115, 15.116, 15.118, 15.120 International Convention for the Regulation of Whaling 1946 …. 4.5, 4.27

art VIII …. 4.20, 4.27 art IX …. 4.21 International Convention on Civil Liability for Oil Pollution Damage 1981 …. 4.24, 5.12, 15.121, 15.124 International Convention on Conservation of Nature in the South Pacific …. Pt D.8 International Convention on Liability and Compensation for the Carriage of Hazardous and Noxious Substances by Sea …. 15.125 International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 …. 15.129 International Convention on the Protection of the World’s Natural and Cultural Heritage 1972 …. 4.12, 4.44, 5.4, 5.11, 5.12, 5.15, 12.11 art 11 …. 12.12 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 …. 15.119 Kyoto Protocol to the United Nations Framework Convention on Climate Change …. 4.3, 4.10, 4.11, 4.12, 4.16, 4.43, 5.12, 17.45 art 3 …. 4.8 art 3.3 …. 4.8 art 4 …. 4.8 art 4 (3–5) …. 4.16 art 11 …. 4.8 Montevideo Convention on the Rights and Duties of States 1933 art 1 …. 4.25 Montreal Protocol on Substances that Deplete the Ozone Layer 1987 …. 4.16, 15.133 Oil Fund Convention …. 15.124 art 3(1) …. 15.122 Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992 …. 15.123, 15.125

art 4(2) …. 15.124 art 10 …. 15.123 art 11 …. 15.123 art 18 …. 15.123 Protocol on Environment Protection 1991 …. 4.27, 5.12 Protocol on Environmental Protection to the Antarctic Treaty …. 5.12 Protocol relating to Intervention on the High Seas in relation to Pollution by Substances other than Oil …. 5.12 Republic of Korea–Australia Migratory Birds Agreement …. 5.12, Pt D.7, 14.28 Rio Declaration …. 8.7, 8.8, 8.9 Principle 2 …. 4.18 Principle 3 …. 8.8 Principle 4 …. 8.8 Principle 7 …. 4.18 Principle 8 …. 8.8 Principle 11 …. 8.8 Principle 15 …. 8.8 Principle 16 …. 8.8 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 …. 15.135 South Pacific Nuclear Free Zone Treaty art 1(c) …. 15.131 Stockholm Convention on Persistent Organic Pollutants 2001 …. 15.135 Stockholm Declaration …. 8.2 Principle 2 …. 8.2 Principle 21 …. 4.15, 4.17, 4.18 Timor Sea Treaty 2002 …. 4.25 United Nations Conference on the Human Environment 1972 …. 8.2

art 21 …. 4.15 United Nations Convention on the Law of the Sea 1982 …. 4.11, 4.18, 4.22, 4.23, 4.25, 4.26, 5.12, 15.114 Pt XI …. 4.23 Pt XII …. 4.15 Pt XV …. 4.23, 4.25 Annex V …. 4.22 Annex VI …. 4.23 Annex VII …. 4.23 Annex VIII …. 4.23 art 2 …. 4.25 art 3 …. 4.25 art 5 …. 4.25 arts 6–16 …. 4.25 art 33 …. 4.25 art 52 …. 15.120 arts 55–57 …. 4.25 art 61 …. 4.26 art 62 …. 4.26 art 65 …. 4.26 art 74 …. 4.25 art 76 …. 4.26 art 77 …. 4.26 art 193 …. 4.25 art 207 …. 15.1 art 207(4) …. 15.1 art 213 …. 15.1 art 218 …. 15.20 art 220 …. 15.20

art 221 …. 15.119 art 284 …. 4.22 art 287 …. 4.23 s 30 …. 5.12 United Nations Framework Convention on Climate Change 1992 …. 4.4, 4.13, 4.21, 4.24, 4.30, 5.12, 8.7, 15.133, 17.36 art 2 …. 4.16 art 3.4 …. 17.45 art 4(1)(j) …. 4.21 art 10 …. 4.21 art 14 …. 4.22, 4.23 art 24 …. 4.13 Vienna Convention for the Protection of the Ozone Layer 1985 …. 4.30, 5.12, 15.133 Vienna Convention on the Law of Treaties 1969 …. 4.13 art 18 …. 4.10 art 31 …. 4.13, 4.44 World Trade Organisation Agreement on Sanitary and Photosanitary Measures …. 5.12, 5.45 s 5 …. 5.12 World Trade Organization Agreement 1994 …. 4.23

Netherlands Constitution of the Kingdom of Netherlands 2008 art 21 …. 2.46, 17.36

New Zealand New Zealand National Development Act 1979 …. 10.52 Protection of the Environment Operations Act 1997 s 252 …. 15.24 s 253 …. 15.24

Resource Management Act 1991 …. 20.118

Philippines Constitution of the Philippines 1987 art II s 16 …. 2.45

South Africa Constitution of the Republic of South Africa 1996 …. 2.45 s 26 …. 2.45

United Kingdom Clean Air Act 1956 …. 1.8 Gulf Oil Refining Act 1965 …. 3.44 Human Rights Act 1998 …. 2.46 Public Health Act 1936 …. 1.8 Rivers (Prevention of Pollution) Act 1876 …. 1.8 Territorial Waters Jurisdiction Act 1878 …. 5.29 Well-being of Future Generations (Wales) Act 2015 …. 8.41

United States of America Clean Air Act …. 17.42 Environmental Quality Act 1970 …. 1.12 National Environmental Policy Act 1969 …. 1.12, 4.46 National Environmental Policy Act 1970 …. 11.97

Table of Contents Detailed Table of Contents Preface Table of Cases Table of Statutes

Part A

The Development of Environmental Law: Institutions, Influences and Instruments

Chapter 1

The Growth of Environmental Law

Chapter 2

Environmental Law: The Social and Legal Context

Chapter 3

Environment Protection and the Common Law

Chapter 4

International Environmental Law

Part B

Implementation of Environmental Law

Chapter 5

Federal Governance and Environment Protection

Chapter 6

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)

Chapter 7

Environmental Legislation: Purpose, Structure and Content

Chapter 8

Ecologically Sustainable Development: The Template for Environmental Management

Part C

Environmental Assessment: Strategic and Project-based

Chapter 9

Strategic Environmental Planning

Chapter 10

Development Control

Chapter 11

Part D

Environmental Impact Assessment

Protection of Biodiversity

Chapter 12

Protected Areas

Chapter 13

Native Vegetation

Chapter 14

Native Wildlife and Threatened Species

Part E

Environmental Management: Protecting Natural Assets and Environmental Values

Chapter 15

Pollution Control

Chapter 16

Waste and Contaminated Lands

Chapter 17

Energy and Climate Change

Chapter 18

Management of Natural Resources

Part F

Environmental Litigation: Enforcement and Accountability

Chapter 19

Standing in Environmental Litigation

Chapter 20

Enforcement of Environmental Laws: Remedies for Regulators

Chapter 21

Civil Enforcement: Remedies for Citizens

Chapter 22

Challenging Environmental Decision-making

Index

Detailed Table of Contents Preface Table of Cases Table of Statutes

Part A

The Development of Environmental Law: Institutions, Influences and Instruments

Overview

Chapter 1

The Growth of Environmental Law

Introduction A role for lawyers and the courts The development of environmental law

Chapter 2

Environmental Law: The Social and Legal Context

Introduction Governance and law The doctrine of the separation of powers The Crown Native title Aboriginal land rights Overcoming private rights: the vexed question of compensation Compensation for environmental restrictions Compensation for acquisitions of property The social context: framing environmental policy The influence of science Non-government organisations (NGOs)

Tortious actions against environmentalists and protesters The media Local government Environmental rights as human rights Rights of nature: ethics and environmental law The public trust Translating environmental policy into environmental law Legislation and legal instruments The role of the judiciary Interpreting environmental legislation Statutory aids to construction Using principles of common law in dispute resolution Merits review Matters of policy Specialist environmental courts and tribunals

Chapter 3

Environment Protection and the Common Law

Introduction The importance of property Ownership and management of natural resources Creation of proprietary and permissive interests The effect of environmental legislation on common law rights Common law actions Nuisance and trespass Nuisance Public nuisance Multiple nuisances Negligence The defence of statutory authority

Statutory schemes for liability Common law remedies Alternatives to common law actions

Chapter 4

International Environmental Law

Introduction Sources of international environmental law International conventions/treaties International custom General principles of international law Judicial decisions and the teachings of publicists Compliance and enforcement The sovereignty of nations Global trade and environment protection The influence of international law in Australia

Part B

Implementation of Environmental Law

Overview

Chapter 5

Federal Governance and Environment Protection

Introduction Commonwealth legislative powers in respect of the environment The trade and commerce power External affairs The corporations power Financial powers Special purpose grants Taxation Federal spending powers People of any race Coastal waters

Fisheries Acquisition of property on ‘just terms’ Other heads of power State legislative powers in respect of the environment The Constitution s 90 The Constitution s 92 Commonwealth places The Constitution s 109 The implied nationhood power The COAG agreement Cooperative federalism National policies and strategies Ministerial councils The Inter-Governmental Agreement on the Environment

Chapter 6

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)

Introduction Application of the Act Actions The referrals process Consultation Significant impact The minister’s decision The assessment process Federal–state cooperative arrangements Bilateral agreements Ministerial declarations Regional Forest Agreements

Strategic assessments Controlled actions Environmental assessment of actions Assessment of Commonwealth actions that are not controlled actions Assessment by agreement with a state or territory of actions that are not controlled actions The approvals process Criteria for decision-making under the Act Conditions of approval Monitoring and Enforcement

Chapter 7

Environmental Legislation: Purpose, Structure and Content

Introduction The purpose of environmental law The effect of National Competition Policy Mutual recognition The structure of environmental law Definitions in environmental law Different legislative regimes may apply to the same activity The objects of legislation Statutory functions Instruments of environmental management Strategic or forward planning Project evaluation and licensing Licences, property rights and market-based approaches Market-based instruments Property agreements and covenants Creating protected areas

Public participation in environmental management Whole-of-government approaches to environmental management Conclusion

Chapter 8

Ecologically Sustainable Development: The Template for Environmental Management

Introduction The world conservation strategy Sustainable development as a global ideal ESD in Australia ESD as a legal concept Process or outcome? ESD in decision-making ‘In accordance with’ ‘Applying’ ESD The ‘public interest’ ‘Balancing’ is an executive function (subject to judicial review) Practical application of the principles of ESD Why sustainability? Is becoming ‘sustainable’ too expensive? Sustainability in decision-making A ‘whole-of-government’ approach to decision-making Tools for implementing sustainability in decision-making Strategic planning Strategic environmental assessment Project design Codes, guidelines and standards Standards need to reflect government policies Green Certification Schemes

Translating sustainability into conditions of consent Adaptive management as a condition of development consent Environmental assessment — projects Government procurement The precautionary principle Threats of serious or irreversible environmental damage The precautionary principle in practice The burden of proof Caution and prevention Intergenerational equity Conservation of biological diversity and ecological integrity Improved valuation, pricing and incentive mechanisms Conclusion

Part C

Environmental Assessment: Strategic and Project-based

Overview

Chapter 9

Strategic Environmental Planning

Introduction Allocating Crown land and resources Crown land Crown resources Environmental and resource management plans Codes of practice and guidelines Resource agreements Property agreements Environmental planning Environmental planning instruments State and regional environmental planning

Local environmental planning Environmental considerations in land use planning Integrated strategic planning National strategies and policies Strategic planning and project control

Chapter 10

Development Control

Introduction Development control in environmental planning legislation General scheme of development control Assessing the environmental impacts of development New South Wales Victoria Queensland South Australia Australian Capital Territory Western Australia Tasmania Northern Territory Planning agreements Offsets Integrated assessment for major projects Special development legislation Appeals

Chapter 11

Environmental Impact Assessment

Introduction Determination of need for EIA Interim protection pending EIS Inquiries

EIA Content The role of EIS in decision-making State-based EIA New South Wales Queensland Australian Capital Territory Northern Territory Victoria South Australia Western Australia Tasmania Adequacy of EIA Review of environmental aspects of proposals Appeals against EIA requirements Common criticisms of EIA Preparation of the EIS by the proponent EIA comes too late in the decision-making process Public participation Time and cost factors Post-decision monitoring and management Conclusion

Part D

Protection of Biodiversity

Overview International obligations for protecting habitat Domestic approaches Species approach to biodiversity conservation The legislative approach to biodiversity conservation

Chapter 12

Protected Areas

Introduction Commonwealth protected areas Bioregional planning Inventories of Commonwealth land World heritage The Great Barrier Reef Ramsar wetlands Biosphere reserves Commonwealth reserves Commonwealth heritage places Overseas places of historic significance to Australia National heritage places Conservation agreements Conservation zones Access to biological resources in Commonwealth areas State and territory protected areas Introduction Australian Capital Territory New South Wales Queensland Northern Territory South Australia Tasmania Victoria Western Australia Marine and aquatic reserves Forest reserves Management of reserves

Offences and enforcement

Chapter 13

Native Vegetation

Introduction Regulatory controls South Australia Australian Capital Territory New South Wales Queensland Victoria Western Australia Planning provisions Trees Offsets for Clearance of Native Vegetation Offsets are a ‘last resort’ Offsets under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Crown leases

Chapter 14

Native Wildlife and Threatened Species

Introduction Commonwealth responsibilities Trade in wildlife and endangered species Interstate trade in wildlife Quarantine and biosecurity Commonwealth fisheries and marine areas The Antarctic Treaty (Environment Protection) Act 1980 (Cth) Threatened species and communities Migratory species Cetaceans

Listed marine species Wildlife conservation plans Eradication and control of non-native species State and territory legislation Introduction Native wildlife Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia Exemptions for the preservation of traditional Aboriginal customs Threatened species Flora and Fauna Guarantee Act 1988 (Vic) Other states Identification of threatened species Nominations for listing Listing of threatened species, populations and ecological communities and key threatening processes Critical habitat Recovery and threat abatement plans Biodiversity and land use planning Species impact statements (NSW) Biodiversity certification of planning instruments (NSW) Evaluating applications for development

Part E

Environmental Management: Protecting Natural Assets and Environmental Values

Overview

Chapter 15

Pollution Control

Part A: Pollution from land-based sources Introduction National policies for management of pollution National Environment Protection Council (Environment Protection and Heritage Council) National Environment Protection Measures Implementation of national measures Enforcement of national measures State legislation Modern approaches to pollution control Defining pollution Environmental harm Managing pollution: strategic approaches Translating strategies into action Industry plans, programs, systems and schemes: an overview Review of decisions Enforcement Part B: Marine pollution from marine-based sources MARPOL Rights of intervention Enforcement Responsibility and liability for damage Supplementary Fund Criminal liability

Offshore Petroleum Sewage, garbage, harmful substances and air pollution Radiation Ozone-depleting substances Other hazardous substances Dumping at sea Ballast water

Chapter 16

Waste and Contaminated Lands

Part A: Waste management Introduction Waste minimisation and resource recovery Product stewardship and extended producer responsibility Product stewardship Waste activities, facilities and transport International movement of hazardous substances and waste Imported waste Remediation or mitigation of damage Part B: Contaminated land Introduction Planning controls Assessing, reporting and managing contamination Site audits Appeals

Chapter 17

Energy and Climate Change

Introduction The Climate Change Convention and the Kyoto Protocol Eligible emissions reduction activities Domestic legislative initiatives

National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) The Carbon Farming Initiative (CFI) Energy Energy efficiency Demand side management Carbon capture and storage Planning for climate change Climate litigation Are greenhouse gases ‘pollution’ under existing law? Climate change and impacts on property rights How might common law remedies be used in climate-induced litigation? Judicial review of decision-making where climate change is a ‘relevant factor’ Climate change in merits appeals Climate change in criminal prosecutions Conclusion

Chapter 18

Management of Natural Resources

Introduction Environmental management of natural resources The planning system as the traditional focus for natural resources management Cumulative impacts Water resources The Living Murray Water efficiency Fisheries Coastal protection Mining and petroleum

Coal seam gas (CSG) Nuclear energy Forests Soil conservation

Part F

Environmental Litigation: Enforcement and Accountability

Overview

Chapter 19

Standing in Environmental Litigation

Introduction The traditional approach Property and economic interests Social and cultural interests Statutory rights and entitlements Standing granted by legislation Modification and expansion of the standing rules Reappraisal by the courts Statutory relaxation of the standing rules Action by or with the consent of the Attorney-General Class and representative actions Taking part in proceedings Action by a ‘friend of a parry’ Intervenors Joining parties to the proceedings

Chapter 20

Enforcement of Environmental Laws: Remedies for Regulators

Introduction Administrative remedies Administrative orders for environment protection

Other administrative action Civil remedies Enforcement orders Civil penalty provisions Enforceable undertakings Criminal enforcement Introduction Investigation and proof of offences Causation Classification of offences Offences involving mens rea Vicarious liability Corporate environmental crime Vicarious liability of directors and managers for offences committed by the corporation Liability as an accessory Double jeopardy Privileges against self-incrimination and exposure to penalties Defences Due diligence Honest and reasonable mistake of fact Other statutory defences Corporate defences Sentencing General approach to sentencing Additional sentencing options

Chapter 21 Introduction

Civil Enforcement: Remedies for Citizens

Civil enforcement Criminal proceedings Civil remedies Injunctions Interlocutory injunctions Declaration Prerogative writs Damages Orders for restoration or remediation Costs in civil litigation What is ‘public interest’ litigation? Indemnity costs Protective costs orders Security for costs Legal aid and pro bono assistance

Chapter 22

Challenging Environmental Decision-making

Introduction Internal review or reconsideration Merits appeals Costs in merits appeals Evidence and expert witnesses Alternative dispute resolution Judicial review Reasons for decisions Legislative denial of judicial review (‘privative clauses’) Natural justice or procedural fairness Other procedural irregularities Want or excess of power

Certainty in decision-making Relevant and irrelevant considerations Improper purposes and ulterior motives Manifest unreasonableness Dealing with government policy Delegation of decision-making Effect of a finding of invalidity Index

[page 1]

PART A The Development of Environmental Law: Institutions, Influences and Instruments Overview Pt A.1 Unlike many legal disciplines, which often have a history going back hundreds of years, the development of environmental law in Australia has been concentrated effectively into the last 40 years. Before this, although there was case law and legislation that dealt with ‘the environment’ this tended to be from the point of view of protecting the property and health of citizens rather than from a desire to protect or manage the environment per se. Only in recent decades has the realisation fully developed that environmental management and protection is important for its own sake, not just for anthropocentric reasons; although of course human relationships with the environment are still vitally important. This period of development has been quite remarkable. Hundreds of pieces of legislation and thousands of court and tribunal cases testify to the fact that this discipline has been maturing at a pace unequalled by any other. The sheer volume of material is daunting; and many legal practitioners and academics now prefer not simply to specialise in ‘environmental law’, but in subsets of environmental law such as climate and energy, water, pollution and waste, and environmental planning. Like any [page 2] legal discipline, however, environmental law has developed, and continues to develop, in the context of the social, economic and legal structures of the society it serves. Environmental law is the outcome of environmental policies; and

environmental policies reflect, and sometimes give leadership to, the aspirations of society as a whole. Without broad-based community support (or at any rate in the absence of strong opposition), environmental laws, like any other laws, are unlikely to survive. The development of environmental policies and laws is also influenced by our legal traditions, particularly those inherited from the common law; and also by our ‘place in the world’ and the obligations we have accepted under international treaties as part of a global community. Part A is an introduction to all these social, legal and international influences.

[page 3]

Chapter 1 The Growth of Environmental Law Introduction 1.1 Concern for the environment is not new,1 though environmental law, as a discipline, is barely 40 years old. The influences that shape modern environmental policies, and thus environmental laws, of course reach much further back, as governments today try to grapple with the inheritance left to us by past generations that had less understanding of the effects of their activities on the life support systems of the planet. Contemporary environmental law has been shaped, and is still being shaped, not only by the need to address new environmental threats as they are identified, but also by the accumulated wisdom of governance and law that has moulded our society, and our approaches to fresh challenges, over hundreds of years. Responding to environmental problems often demands a steep learning curve, and environmental law is therefore very much an area of law that is dynamic and innovative in its attempts to implement and give meaning to contemporary government environmental policies. One thing, however, appears certain: no one now questions the need for environmental laws, even though the content and application of those laws may often become a matter for vigorous public debate. 1.2 It is now well recognised that degradation of the natural environment not only adversely affects the biological diversity of the earth, but also impacts adversely on the human environment, by lowering the quality of life, by affecting the economy, and by impacting on health. This book is about the laws that require impacts of decision-making on the natural environment to be identified, evaluated and taken into account by government regulators; and require all citizens, including corporations and governments, to comply with environmental laws and instruments of management properly created under those laws. 1.3 As we shall see, environmental law is mainly a product of legislation.

The law, however, does not exist in a vacuum; it takes its shape from the fundamental aspirations and values of our society, and the traditional interests and expectations on which our society is built. Our society, and therefore our laws, reflect Western democratic values and capitalist philosophies, which inevitably influence the choice and development of government environmental policies and thus the scope and content of environmental law. This is discussed further in Chapter 2. [page 4] 1.4 It may seem axiomatic to describe environmental law as that body of law that is concerned with ‘the environment’.2 In common parlance, however, there are a number of environments that are the subject of government policy initiation and decision-making; and since statute law is really a reflection of government policy, environmental law in reality is not so much about blanket protection of ‘the environment’, as about enabling decisions to be made that reflect a balance, or, better, an integration, between the different environments that are the concern of government. These environments include: the natural environment, the built or urban environment, the cultural environment, and the economic, social, health and work environments. Inevitably, these environments overlap, and so environmental laws may serve more than one function. Pollution, for example, may affect human health as well as the natural environment, and so pollution law carries the objective of protecting both human health and the natural environment, within a context of best practice management that reflects the economic and technological realities of putting control measures into place. 1.5 Environmental planning seeks to promote economic and social goals as well as the protection of the natural and cultural heritage. Strategic planning of land use therefore attempts to balance the need for economic development with the need to provide places to live and work that allow for the maintenance of a reasonable standard of environmental quality and the protection of significant environmental features. Laws governing land degradation and clearance of native vegetation reflect concerns not only about the disappearance of biodiversity but also about the economic effects of soil erosion and salinity on rural landholdings and thus the national economy. Even laws concerned with the protection of threatened species of plants and animals fail to give blanket protection, building into decision-making consideration of the social and economic impacts of preservation. And perhaps the most obvious example of all: emissions of greenhouse gases are

not regulated by pollution laws but their diminution is encouraged by a suite of clean energy legislation that relies on economic incentives to be effective. This approach is not surprising given that the central lynchpin around which environmental management throughout the globe revolves – the concept of sustainable development – is itself defined in terms of the integration of environmental and economic factors in decision-making: see Chapter 8. 1.6 Environmental law in Australia is therefore all about making sure that impacts on the natural environment are identified and taken into account in decision-making. Environmental law provides government regulators, and also private citizens and corporations, the tools with which to pursue and achieve this objective, often indicating what criteria must be considered in carrying out this process, and allowing decisions to be tested in specialist environmental courts or tribunals. Thus, environmental law is largely about enabling and guiding decision-making rather than commanding proscriptive outcomes. It rarely seeks to prioritise environmental criteria, instead providing structures for decision-making which recognise and give full credit to [page 5] environmental values, but within which sustainable outcomes for all ‘environments’ may be pursued. 1.7 Environmental law draws its content and its inspiration from many other branches of the law, but it also influences and develops those other disciplines.3 For example, corporate liability for environmental harm reflects well-understood notions of corporate law, but extends liability considerably beyond that developed by traditional corporate law. Real property transactions cannot be safely undertaken without recourse to the law relating to contaminated sites. In fact, no corporate or commercial lawyer could purport to effectively advise clients today without a fundamental appreciation of the impact of environmental laws. Many challenges to environmental decision-making rely on well-established principles of administrative law, and environmental cases enrich and develop this area of the law.4 Environmental law is also inevitably tied up with local government and constitutional law, with the making of contracts, with trade, planning and development, and the use of natural resources. Environmental law then is more than just a collection of legal principles drawn from existing sources. Environmental problems frequently demand novel policy, and therefore

innovative legal solutions; and in this way environmental law is also assisting, and often leading, the development and refinement of established legal approaches to new social challenges and readjusted community values. 1.8 Although most modern environmental law is, at best, hardly four decades old,5 and usually much less than that, environmental law is not solely a product of the twentieth and twenty-first centuries. The courts of common law were dealing with complaints about pollution as early as the fourteenth century, and anti-pollution legislation was on the statute book by the late fourteenth century. Initially, both judicial activity (which reached a peak in the nineteenth century, reacting to the impacts of the Industrial Revolution) and legislative action reflected more a direct response to particular public health problems than any general concern about environmental quality. For example, the earliest ‘environmental’ statute appears to be 12 Ric 2c 13 in 1388, prohibiting the throwing of dung and other filth into rivers and ditches close to any towns or villages. The Bill of Sewers,6 enacted in 1531, empowered the Crown to issue commissions to keep sewers, trenches and ditches cleansed and deal with land drainage, flood prevention and coastal erosion. Persons throwing dung into the River Thames in the sixteenth century were liable to a penalty of one hundred shillings.7 Even as late as 1875, water pollution problems in England were still being dealt with under the great Public Health Act of that year. Indeed, only the sensitive noses of nineteenth-century members of parliament, who could not bear to take tea on [page 6] the terraces of the Houses of Parliament at Westminster due to the appalling stench coming from the River Thames, finally secured the passing of the Rivers (Prevention of Pollution) Act 1876 (UK). Public health considerations also lay behind the passing of the comprehensive air pollution regulations contained in the Clean Air Act 1956 (UK). In the winter of 1952, over 2000 Londoners had died as a result of exposure to smog. Previously, ‘smoke nuisances’ had been dealt with under the Public Health Act 1936 (UK). 1.9 This piecemeal type of development was reflected in early Australian legislation,8 with pollution being treated at first as a nuisance incidental to public health and local government functions. Only in the late 1960s and early 1970s was more comprehensive pollution control legislation enacted, together with other environmental protection and conservation legislation. Increased legislative activity was encouraged and assisted by a more organised, focused and insistent movement towards preservation and protection of the natural

environment that had gained momentum in the early 1960s. It seems to have originated in the United Kingdom and in the United States at virtually the same time, though there was an immediate worldwide reaction among developed nations, and the movement quickly spread to Australia and New Zealand. 1.10 It is difficult now to understand why this focus of attention has been so comparatively recent. Certainly, environmental problems have been pressing for serious attention at least since the dawning of the great age of the Industrial Revolution, although Australia has been affected less in this respect than other more highly industrialised and overpopulated nations of the Western world. Perhaps the post-revolution preoccupation with economic growth (and depression) and the war years, together with long working hours and less opportunity for travel, left people with little knowledge of, or little inclination towards, aesthetic or environmental values. Amateur environmentalists and naturalists might have been uneasy with the degrading effects on habitats and species that they were witnessing, but they were yet to be formed into meaningful lobby groups that could exert pressure on governments. Then again, it is only comparatively recently that certain health risks inherent in various types of pollutants, as well as the economic and social risks of, for example, loss of biodiversity, land degradation, and now climate change, have been discovered and widely publicised. 1.11 Prosperity and stability did not return to the common law world until the economic ravages of the war years had been repaired by commerce and industry. This in turn led to a higher standard of living with a general reduction in working hours and more free time and opportunity to enjoy and speculate on the pleasures and values of natural amenities. A return to a full peace-time economy and expansion in commerce and industry due to fresh technological developments, however, inevitably led to increased exploitation of natural resources and increased pollution from new manufacturing processes. Scientific investigation began to produce hard facts and figures about the disappearance of natural resources, and about the effects [page 7] of pollution on the environment. Recreational interest groups such as anglers were already aware of the effects that pollution could have on their amenities, but now more ‘environmentalists’ were beginning to organise themselves into conservation bodies that began to grow uneasy about maintaining and improving environmental quality.9 The process seems to have been one of ‘creeping awareness’. Books such as

Rachel Carson’s Silent Spring10 helped to publicise the results of serious research into environmental problems and were instrumental in exposing issues and placing them before the general public. Some popular music groups and singers of the day even built their reputations and careers on the ‘environmental religion’ they preached to their followers.11 The media began to take an interest and suddenly people were confronted with pollution and other evidence of environmental degradation in their own living rooms. The general public began to realise that increased technological and industrial development not only brought distinct material advantages, but also had unwelcome side-effects that had not previously been publicised. Ordinary people, therefore, became better acquainted with terms such as ‘pollution’, ‘environment’ and ‘conservation’. They talked about the issues involved and began to take more than just a passing interest in the outcome. 1.12 In the United Kingdom, the government of the day reacted by creating a Department of the Environment to initiate, coordinate and administer government policy on environmental matters. Early in 1970, a Royal Commission on Environmental Pollution was also appointed ‘to advise on matters, both national and international, concerning the pollution of the environment; on the adequacy of research in this field; and the future possibilities of danger to the environment’.12 The commission acted as a sort of ‘environmental watch-dog’, reporting every year on the progress that had been made in specific areas and warning of problems still to be dealt with. In the United States, Congress passed the National Environmental Policy Act 1969 (US). This required that, in future, a full assessment should be made of the environmental impact of all proposed developments involving federal agencies, and provided for the creation of an independent Council for Environmental Quality to assist and advise the President on all environmentally significant proposals. The following year, the Environmental Quality Act 1970 (US) also created the Office of Environmental Quality to assist federal agencies in carrying out their functions where environmental matters were concerned. [page 8] In Australia, the Commonwealth and state governments responded in the early 1970s with pollution control and other environmental coordination and protection legislation. An Australian Environment Council was created to coordinate Commonwealth and state activities relating to environmental matters. Internationally, environmental issues came to occupy the attention of all the great multinational assemblies and many internationally agreed

measures have been translated into domestic legislation to fulfil international legal obligations.13 1.13 The environmental movement must therefore rank as one of the great social revolutions of history. On the other hand, the suddenness with which environmental affairs were swept into the limelight, and the challenges that a new set of values made to established institutional and legal structures, also led to significant political and social tensions, created by the competition between differing sets of values and conflicting community expectations. The 1960s and 1970s were, in many respects, a time of conflict in which new, but widely held, values were struggling for recognition and expression. Former Chief Justice of the High Court and past president of the ACF,14 Sir Garfield Barwick, put it this way:15 The problem, like so many with which humans are faced from time to time, involves an intelligent balance, achieved by the use of knowledge, reason and wisdom: that balance will be found in the use, which though affecting a not undue change and not more than an acceptable modification of the environment, yet results in the proper maintenance of resources and environment for the benefit of another generation. But by the very expression of the problem in that way the difficulties of deciding what is undue and what is unacceptable readily emerge. There are, in most cases, two sides of the argument, much to be said pro and con. The solution must be the result of calm and objective consideration, however strongly opinions may be held and expressed, and however much emotion or intensity of feeling may have been aroused.

1.14 Certainly, environmental protection in those days proved to be an emotive subject; the reasons are not hard to discern. The Foreword to the Western Australian Environmental Protection Authority’s Annual Report for 1979–80 explained why: One problem that confronts both environmental agencies and those in the community who are particularly concerned with conservation issues is not so much the major isolated development, but rather the case of slow but continuous environmental degradation or loss of valuable natural resources. An environment is rarely destroyed or a conservation reserve lost in one fell swoop, more often it is due to a slow process of attrition. Each incremental loss or degradation may be minor in itself but cumulatively they add up to an unacceptable sacrifice. Examples are to be found everywhere: the excision of a small

[page 9] piece of a national park for mining or agriculture, the first subdivision in a scenic rural landscape that sets the pattern for more, the polluting discharge which is insignificant by itself, but which taken with others destroys the ecosystem, or the freeway that follows the river shore. A very good case can be made for each when it is considered in isolation, and the costs and benefits are examined only in relation to that one case. The financial advantages may often be seen to outweigh the environmental damage or loss, particularly as the latter is often hard to quantify. Yet no-one, apart from a few extremists, would be prepared to accept open slather for mining, to have all our rivers fringed with freeways or to see our forests whittled away. Expediency is the main enemy of conservation and must be fought if we are to preserve the best of our environment for future generations. Because an environment once lost is very hard to recover

and because of the insidious nature of incremental environmental damage, some concerned conservationists take a very hard line on development, seeing it as the thin edge of the wedge and tending to find fault with every proposal that comes forward. As a reaction, there are some who support development virtually regardless of environmental cost and who tend to write down legitimate concern as being trivial and unimportant in their continuous quest for growth. The battles that develop between those holding these two sets of extreme views confuse the issue, and assist the cause of neither sensitive developments nor sensible conservation.

1.15 In most countries, the responsibility for environmental degradation was laid squarely at the feet of industry. There is no doubt, of course, that for years manufacturing concerns had treated air and water as a sort of natural conveyor belt to carry away all kinds of harmful effluents that could have been disposed of in less ‘convenient’ or more expensive ways. But prior to the ‘environmental revolution’, there was no pressure on them to do otherwise. As the former Administrator of the United States Environmental Protection Agency said:16 The search for scapegoats may be inevitable but their discovery rarely results in enlightened policy. In America, the focusing on industry as the ultimate scapegoat resulted in all suggestions for legislation being judged on whether they were ‘tough’ or ‘weak’ against the foe. This often distracted us from the only relevant judgmental question which was whether the suggestions were wise.

Professor Sandford Clark also pointed out that the task of government was not to protect each conflicting interest from adversity, but to strike a balance between conflicting interests:17 Compromise is inevitable. Not all objectives can be obtained. The credibility of the conservation movement in the eyes of government — and, consequently, its effectiveness — is endangered by failure of some conservationists to acknowledge this reality. The utter intractability of some adherents to the movement immediately puts them out of sympathy with the politician to whom compromise is, necessarily, a way of life.

1.16 Nevertheless, the environment movement was gaining traction and ‘mainstream’ Australia was beginning to sympathise more with the values being [page 10] espoused. Environmentalists began to think more about how the law could assist in resolving environmental disputes. Political protest and lobbying continued unabated during the 1980s, particularly over issues such as the logging of rainforests, protection of wilderness and effective control of water pollution; but environmental lobby groups also began to target the courts in a bid to use legal structures to publicise the issues and, inevitably, to expose weaknesses in legal responses and press for reform. Environmental issues began to interest the legal profession; the possibilities for court-based

resolution of disputes began to be explored, and judges were forced to confront interests and values that had to date been largely unexplored in the courtroom. Subsequent exposure of the inability of the law, tied to traditional notions of common law values, to respond to ‘new wave’ environmental concerns ultimately convinced law-makers to take matters into their own hands — and modern environmental law was born.

A role for lawyers and the courts 1.17 The world of environmental management and protection is a multidisciplinary one populated by biologists, zoologists, architects, archaeologists, botanists, planners, landscape architects, chemists, economists, geographers, geologists, engineers and consultants in general, together with the representatives of a whole host of other disciplines, and, of course, politicians. Passively, the law may simply reflect the solutions worked out by interaction between these other disciplines. But lawyers increasingly have a more active role to play, and courts and tribunals, as protectors of the public interest and as forums for the weighing up of conflicting arguments, may legitimately help to ensure that controversial recommendations and decisions are based on an objective assessment of all the relevant evidence. United States consumer advocate Ralph Nader once wrote that ‘the emergence of environmental law in practising law firms has been stifled because lawyers are traditionally engaged to uphold the very established interests that may prove anathema to environmental considerations’.18 He also accused lawyers of adopting a ‘stagnant, unimaginative posture’ to environmental actions and pointed out that lawyers are a rather cautious breed and they do not like to take on new kinds of cases with which the law is not readily familiar. European commentator Ludwig Kramer has also said: ‘[E]nvironmental lawyers are first of all lawyers and thus share all the virtues and deficiencies of this social class — upper middle class, some social prestige, seldom in top positions, more frequently acting as advisors or men in the background, indirect power, trained to justify or to assess decisions that were taken by others’,19 and more recently he has criticised environmental lawyers for deserting their grass roots base and becoming too close to ‘the establishment’.20 1.18 That environmental issues are a matter of legitimate and expanding concern for lawyers, however, would not be questioned today. Indeed, most

sizeable law firms would boast environmental law sections, and medium sized firms are likely to have [page 11] specialist environmental lawyers. A growing number of solicitors and barristers also specialise in environmental law, and some of these are now finding their way onto court benches.21 As environmental laws continue to expand in response to policymaking that reflects new scientific findings and readjustment of community values, decisions that affect environmental values become more carefully scrutinised and inevitably the need for environmental legal advice and representation becomes more widely and actively sought. 1.19 The need for lawyers to become involved in environmental protection has been confirmed over the years by some of the most highly respected members of the judiciary. Lord Wilberforce said in 1969 that ‘Australia is the place where on the whole man leads a more balanced and sane existence than anywhere else and where the environment, though it has suffered some losses, is still more generally intact than in any comparable area’. But he also warned that ‘these particular values have no automatic or built-in right to survival’ and that ‘lawyers would be failing the community if they did not play a part in their preservation’. Lord Justice Scarman (as he then was) also referred to the ‘challenge of the environment’22 and pointed out that if the law and lawyers were to retain a relevant role in environmental protection, then they must find some meaningful way to regulate harmful activities rather than leave it to some specialist administrative agency remote from legal control. In New Zealand, Justice Cooke said that ‘from time to time a case comes up when there is a choice of the path the law should follow. I would claim that when confronted with such a choice, most judges and magistrates today are willing to give full weight to any relevant environmental considerations’.23 In Canada, Judge Johnson remarked that for a judge not to be concerned about environmental preservation and damage ‘would be the same as being against motherhood’.24 In the United States, the late Justice Douglas was a noted environmental law campaigner. Tobriner and Willemsen stated: For generations of conservationists Justice Douglas served as our spokesman on the Supreme Court. Douglas led the court to recognise that the public interest in land and its uses goes beyond the traditional considerations of economics, safety and morality.25

Justice Murphy to some extent tried to do the same in the High Court of Australia.26 1.20 The advent of specialist environmental courts and tribunals in Australia, and increasing familiarity with environmental issues in mainstream

courts, has also encouraged a new wave of judges to expand the boundaries of the law to encompass environmental concerns. The dramatic change in attitude in the Federal Court within the space of one decade to the standing of litigants representing environmental concerns is [page 12] testimony to the ability of judges to adapt to new public expectations.27 Of the specialist courts, the Land and Environment Court of New South Wales, the first of its type, has led from the front in the development of the new environmental law,28 and judges of the ilk of former Chief Judge Jerrold Cripps and, more recently, Justice Paul Stein,29 have left an indelible mark on the interpretation and application of new legal and policy concepts in decision-making such as the requirements for environmental impact assessment (EIA)30 and application of the precautionary principle.31 The foundations secured by these earlier visionaries are now being built on by the current Chief Justice, Brian Preston, who has gained remarkable traction in a comparatively short space of time with pressing issues such as the application of principles of ecologically sustainable development (ESD)32 and principles of sentencing33 in environmental cases, as well as modernising the structures and procedures of the court.34 Similar reforms to processes and procedures that enliven proceedings in the court have been undertaken in the Queensland Planning and Environment Court. Specialist planning and environment divisions of tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT), have also been successfully grappling with important issues such as the practical implementation of principles of sustainable development, and responses to climate change. In fact, as will become apparent throughout this book, environmental cases are now being brought before courts and tribunals in all jurisdictions, at all levels. The specialist courts and tribunals are discussed further at 2.72. 1.21 There are, of course, critics who are opposed to a heavy judicial involvement in environmental decision-making. They would say that lawyers are not equipped to decide many of the issues involved, which might require technical or scientific evaluation, and that the value of the adversarial system of legal procedures becomes less reliable as the facts become more numerous and complex.35 Noted Australian jurist Justice Michael Kirby, a retired High Court judge, has said that ‘one of the basic problems is that the adversary system focuses on victory rather than truth. But an even more fundamental problem may be that the experience of lawyers, and their education, is such as to make the detailed understanding of the language of science and technology uncongenial or even impossible’.36

[page 13] In this quest for victory, there may be a temptation to try to discredit scientific witnesses who can, at best, only give qualified answers to difficult predictions, while at the very least the adversarial nature of legalistic inquiry often appears harsh and unnecessarily aggressive to the scientific community.37 The ability of the court to evaluate complex scientific evidence is made more difficult because scientific witnesses cannot directly question each other but have to conduct their case through only partly comprehending lawyers, leading to the possibility that bad science may be accepted as proven fact.38 Another judge has argued that ‘substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable’ and that judges should therefore concentrate their efforts on strengthening administrative procedures.39 1.22 On the other hand, ‘notwithstanding the fact that most lawyers are not scientists and have some limitations in the development and understanding of scientific and technical data, they do have a significant role relative to scientists. That is, the effective organisation of extensive quantities of data, and its logical arrangement, in a manner consistent with evidentiary requirements, so as to ensure a party’s case is put forward to its best advantage’. As Sax has pointed out, the courts are frequently called on to decide cases in which the evidence of technical experts is crucial to the outcome.40 If environmental decision-making was to be left solely to the executive, then there would be no means of testing the quality or legality of decisions made. Arguably, the possibility of legal or merits41 review of environmental decisions by an independent umpire should strengthen the quality of decision-making. Judge Oakes, an American circuit judge, once commented that:42 … while a court may never understand a specific problem as well as a scientist or EPA administrator, such depth of understanding is not necessary to decide the lesser question whether an agency has acted arbitrarily or capriciously. When, as is so often the case in environmental litigation, briefs are submitted by three sides — agency, industry and public interest group — no judge genuinely interested in the issue can fail to get a modicum of education adequate for the problem at hand. In the end, much depends upon the conscientiousness or ability of the individual judge, just as much depends, at other levels in the system, upon the individual traits of agency officials or laboratory scientists. When experts talk only to each other, they tend to forget for whom the decisions are being made. When they are forced to explain their decisions in terms a judge can understand, it is more likely that the public also will understand. This, then, is a key benefit from generalist court review: it makes environmental decisions more comprehensible to those who must ultimately pay the costs of implementation.

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1.23 The marriage of science and law — the one traditionally an investigative discipline, the other adversarial — is not easy.43 The fact is, however, that the public is increasingly demanding more transparent and accountable decision-making, which translates into better access, both in terms of the right to participate and the right to challenge. Rising levels of education, and the demise of ‘authoritarian tradition’ in Australian education, has led to increased demands for consultation and participation and an expectation that progressive laws will not only be enacted by governments, but also that the administrative machinery to carry out those laws and test or enforce them, even against governments, will be provided. Agitation for such rights, and for access to information from government files, has slowly unveiled the mask of secrecy that used to surround so much bureaucratic endeavour, and thus made it easier to challenge governmental decisionmaking. Administrators and politicians have thus come to see the wisdom in consultation before an important decision is taken, rather than suffer embarrassment and criticism afterwards. However, they are also increasingly realising the value of giving objectors their ‘day in court’ as a final and independent resolution to disputed decisions. Denying the possibility of appeal to an independent umpire can tend to lengthen a dispute in the political arena and cause unnecessary anxiety and delay for all parties. Specialist appeals bodies, and sometimes commissions of inquiry, are therefore being asked more and more to judge the merits of particular development issues in which scientific and technical evidence is playing an increasingly important part in the proceedings. And this task is likely to escalate as concepts of sustainability become crucial to decision-making. 1.24 Lawyers representing clients before such courts will be required, therefore, to gain some command of scientific concepts and methodologies in order to grapple with notions of sustainability. For example, the scientific evidence that may be vital to establishing the sustainability or otherwise of a particular proposal, such as the logging of native forests, offsetting the impacts on biodiversity from a disputed project, or long-term effects of pollution loads on aquatic ecosystems, may be dependent on the establishment of long-term ecological monitoring programs.44 Computer modelling is thus being used to shorten such time frames; and also to supply information where none is currently available, and to make predictions based on known45 and — in the case of climate change impacts — constantly emerging or revised data. One of the downsides to traditional rights of property in our common law system is that vital on-the-ground research cannot be carried out on private

property without the consent of the landowner. Regulators’ powers to demand entry to private land is triggered only by the suspicion that a contravention of a statute may have taken place, [page 15] not by the desire to do research.46 Consequently, extrapolations from known evidence, gathered predictably on public land, may sometimes be used to fill in the gaps in knowledge. Using scientific data gathered in the short term, computers are being used to predict outcomes in the long term. Of course, the accuracy of these models depends entirely on the adequacy of the database used to feed them. Where this base is limited, computer models incorporate various assumptions. This combination of short-term data gathering plus the use of assumptions affects the ultimate predictions quite considerably, so that computer models developed for similar purposes may not agree with one another or indeed may not accord with what actually happens in ‘real life’. This is why, for example, there is so much argument over the true nature of the ‘greenhouse effect’. As the court said in Thornton v Adelaide Hills Council (2006) 151 LGERA 1 at 9: … the Court in many instances in the past has relied on the results obtained from the use of scientific models to assist it in the assessment of environmental impacts. Nevertheless it acknowledges that models are a theoretical construction of the real world and that they have limitations. There is a need, therefore, to ensure that the model is relevant and respected as a tool, and the inputs fairly represent the operational and environmental conditions that would exist if the facility in question was commissioned.

Lawyers, as well as policymakers, need to understand the bases of scientific theory and the limitations of computer predictions. Indeed, in applying the precautionary principle47 it would seem to be crucial. 1.25 Both lawyers and scientists also need to understand the reasons for the differing standards of probability applied by the different disciplines. In law, the criminal burden of proof is ‘beyond reasonable doubt’; however, in civil cases, a lower standard of proof applies — ‘on the balance of probabilities’. This contrasts with the generally accepted scientific criterion for probability that is based on a 95 per cent confidence level in an animal or human study. Jeffery has argued48 that the higher standards of proof are not appropriate at tribunal level: In contrast to the goals of both science in the pursuit of scientific knowledge or truth, and society in the interests of justice, the decision-maker in the environmental context is faced with the immediate task of deciding whether to approve or reject a proposal. In doing so he or she must come to terms with the technological state of the art as presented by expert witnesses, while at the same time evaluating the social and economic considerations which frequently reflect conflicting community and societal concerns. Often the question is not whether the proposal is

the ‘best possible’ solution to a particular problem, but rather is it ‘environmentally acceptable’ or ‘suitable’ taking into account the much broader range of criteria which must be fully canvassed and considered?

[page 16] 1.26 Christie49 has also pointed out that the law tends to perpetuate a common misconception ‘that the scientific method implies exactness and certainty’ — something that scientific research often cannot deliver, thus making it impossible to fulfil legal expectations that science can allocate responsibility or blame. Both lawyers and politicians, however, need to keep abreast of science. Scientific discoveries and the application of that knowledge are changing the world about us at an extraordinary pace and in ways that are not always easy to predict in terms of environmental impact. For example, research into the genetic manipulation of organisms has now progressed to the stage where intentional releases into the environment have been taking place. Scientific knowledge about ozone depletion and climate change continues to increase and, in some respects, change. The environmental and economic values ascribed to biodiversity and integrated ecosystems continue to be discovered or refined. Lawyers, as much as politicians, need to keep up to date with scientific and technical progress in order to assimilate and use the latest information, techniques and processes for the benefit of their clients and constituents. 1.27 Despite the problems, the advantages of courts and tribunals as fora for evaluating arguments and balancing conflicting interests should not be overlooked. They are politically unbiased and free of such influences; independent of the administration, whose job it is to translate policy into action; and staffed by judges and commissioners who are experienced in evaluating conflicting arguments or who bring a wealth of professional experience to the issue, and whose decisions are largely respected. And, above all, such fora should enable citizens to be heard and ensure that their views are taken into account in the ultimate decision-making processes. The courts can thus ensure that a decision is reached objectively, fairly and honestly, taking into account relevant factors and excluding irrelevant ones, and make sure that a reasonable conclusion is justified by all the available evidence. 1.28 The tendency today is to recognise and accept that there is a legitimate role for the courts to play in reviewing environmental decision-making, and, at least in a number of jurisdictions, that specialist environmental courts are better placed to undertake this task.50 In asserting this as a proper role for

courts and tribunals, however, it must not be overlooked that there are certain impediments still within legal processes that must be overcome if the law is to provide any significant assistance to the development of ESD; for example, in some jurisdictions, the problem of finding someone who has the ‘standing’ or right to bring an action.51 The cost of funding such actions is also a real hurdle to litigation.52 One welcome development in the courts to try to reduce costs, particularly in merits appeals, has been the introduction of alternative dispute resolution. Encouraging the [page 17] parties to mediate to resolve disputes, before the necessity for a formal hearing is forced on them, undoubtedly assists the parties to understand better each other’s points of view and may significantly reduce the time and costs of formal court action. Judges and court officials have undertaken formal courses in mediation techniques to try to assist parties reach such resolution, with significant success. Nevertheless, the availability of merits appeals is dictated by legislation, which in turn is dictated by government policy, and it remains true that significant areas of government decision-making are not subject to appeals on the merits by interested parties other than applicants and must be challenged, if at all, by an application for judicial review.53 1.29 The emergence of specialist environmental courts and tribunals in Australia also marks the proliferation of environmental legislation and decision-making in recent years. Along with this has come increased corporate awareness, responsibility and regulation with respect to environmental issues, the better organisation of community groups, and greater opportunities for public participation in environmental planning and natural resources management. As a result, environmental issues have increasingly found their way into solicitors’ offices and barristers’ chambers, and from there into the courts and tribunals, where either the legality or the merits of decision-making has been able to be tested. 1.30 Similar opportunities for ‘public interest’ litigation in the United States spawned a concerted effort from the lawyers to find suitable techniques, procedures and funding by which litigation could be developed and encouraged.54 These techniques included: law firms taking on public interest litigation operating as non-profit-making charitable organisations to whom gifts of money are tax-deductible (the Sierra Club Legal Defense Fund, Natural Resources Defense Council and Environmental Defense Fund operate this way); limitation of fees by traditional law firms for taking on public

interest cases; the support of no or low profit margin public interest cases by traditional commercial work in law firms; and the creation of associate groups of lawyers interested in undertaking public interest cases so as to provide a central ‘clearing house’ to direct environmental and other cases to lawyers where the work could not have been taken on by private law firms on a prepaying basis (either for financial reasons, or because representation of such clients might cause embarrassment to a firm’s traditional clientele). Australian legal firms have also responded by taking on suitable public interest cases for reduced fees or on a no-win, no-fee basis, though much public interest environmental law work is directed to the Environmental Defender’s Office (EDO).55 The EDO is an independent community legal centre specialising in public interest environmental law, staffed by qualified lawyers, and funded mainly through sponsorship, and government and community grants and individual donations. Some of the most important and significant cases in Australian environmental litigation have progressed through the involvement of EDOs. EDOs also produce [page 18] informative publications on different aspects of environmental law and the legal system; and run conferences, seminars and workshops, often at a local community level. The Productivity Commission report on Access to Justice Arrangements (2014) confirms that while court action may be seen as the central focus of the justice system, community legal education, legal information (including self-help kits) and minor advice help to better equip people to use the law effectively.56 Funding for all EDOs, however, is often difficult and uncertain, particularly since the EDOs may seek to litigate against the very governments that provide them with funding. The federal government, for example, initially made it a condition that EDOs should not use federal funding directly to support litigation, but use that source of their funding to engage in community education, dissemination of information and responses to government initiatives and other submissions. Since 2014, however, all federal funding to EDOs has been cut entirely. In New South Wales legal aid used to be a significant source of funding for running public interest environmental cases, but this has been withdrawn since 2013. As a backlash to the New South Wales EDO’s involvement in assisting community groups, including farmers, to resist the coal seam gas industry, the New South Wales government then slashed EDO funding through the Law Society’s Public Purpose Fund,

threatening the very existence of the EDO in New South Wales. A classic case of ‘shoot the messenger’ rather than ‘listen to the message’. The Productivity Commission, on the contrary, has argued that there are strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation, including in relation to environmental matters.57 1.31 A further barrier to the involvement of more lawyers, argued by Boer, is the restrictive Code of Legal Ethics, which recognises only a duty to the client and the court. Boer argues:58 The reliance on the relatively narrow code of legal ethics may have been valid a decade ago, but … it is no longer valid today. The concept of sustainable development and what it implies in economic, political and ecological terms, demands that all of us should consider the broader implications and effects of our work … if professional groups working in the environmental field, including lawyers, are to take the injunctions of Our Common Future seriously, there would appear to be a case, and strong case, for the development of a broad code of ethics which incorporates not only the usual obligations, but includes an obligation to the ‘environment’ itself.

Boer then goes on to suggest how a code of ethics incorporating the concept of sustainable development can be applied to and by lawyers working in both the public and private sectors, and in educational institutions, and concludes: [page 19] It is only by continuing to challenge the accepted paradigms of the development ethos (ie, that ethos which does not take into account the philosophy of sustainability), by whatever ethical and legal means available, that lawyers will be able to extend the boundaries of environmental law in order to ensure that the principles of sustainable development are expressed in the legal realm, which will in turn have significant effects in the economic, political and finally the ecological realm. In short, what I am arguing is that there is a role for environmental law in formalising and implementing the vital links between ecology and economics – and that it is the role of the environmental lawyer to ensure that this occurs.

1.32 It is not just domestic lawyers who have a role to play in environmental protection, of course. The increasing realisation that environmental problems are of global origin and that all nations must pursue common goals and strategies to reverse the decline ‘will require the skills of international lawyers, first bringing problems into clear focus and then translating good intentions into coherent measures of concerted action’.59 The resulting law enshrined in international treaties inevitably percolates through to influence or direct Australian national policy and law.60 1.33 In addition to new causes of action created by legislation, lawyers have also become much more involved in ‘preventative legal medicine’; assisting

corporations to meet their legal obligations, for example, through the introduction of environmental management systems (EMS) and environmental auditing.61 In recent times, those very firms that are engaged by what Nader called ‘established interests’ are also likely to have lawyers specialising in this branch of the law, imparting advice on compliance with regulatory standards and avoidance of exposure to liability under the new environmental laws.62 1.34 Courses in environmental law, at undergraduate and postgraduate level, are now being taught in most universities, and not just in law schools, but increasingly in environmental science, engineering and other disciplines. There is an Australian Centre for Environmental Law (ACEL at ANU),63 an Australian Centre for Climate and Environmental Law (ACCEL at the University of Sydney)64 and a Centre for Climate Law and Policy (CCLP at ANU).65 There is an Environmental Law Reporter, a Queensland Environmental Practice Reporter, a Local Government and Environmental Reports of Australia series of law reports, an Environmental and Planning Law Journal, Local Government Law Journal, and The Australasian Journal of Natural Resources Law [page 20] and Policy; and environmental law associations have been established in every state and territory and at a national level.66 Truly, this discipline, environmental law, has surely come of age.67

The development of environmental law 1.35 After several decades of environmental legal development, how then can we measure success? And where to next? It is important to remember that merely looking at the words of legislation does not give a true indication about how the legislation is implemented and enforced and therefore how successful it is. Neither does a successful legal challenge to a project necessarily mean that that project will not go ahead. Apart from the fact that an ‘unlawful’ project can always be redesigned and presented again for approval, parliaments can always legislate to overcome the effect of ‘inconvenient’ court-based decision-making, whether on the merits or in law. As we shall see, considerable discretion is built into Australian environmental law; the true measure of success therefore can only be distilled by evidence taken directly from what is happening out there in ‘the environment’.

Ryan,68 for example, has warned that we cannot measure success in terms of volumes of legislation, prosecutions undertaken or orders issued. Perhaps the most obvious way to measure success lies in analysis of State of the Environment Reports (SOEs) that are required by legislation in most states and at Commonwealth level to be published every three to five years.69 Although such documents generally use data that is out of date when published, and are often incomplete, reliant as they are on governmental goodwill to release the necessary information, they do provide some measure of progress. Taken over a period of years, they can indicate gains, losses and trends, and help to inform government policies and priorities. These would indicate, for example, some improvements in air and water quality over the years, but continuing losses of native vegetation and biological diversity. Clearly, just ‘having’ law is not enough; everyone must be vigilant about implementation and enforcement issues, and about driving the policy agenda that leads to the creation of environmental laws. [page 21] As we shall see throughout this book, considerable challenges still remain in devising appropriate responses (legal and otherwise) to environmental problems, and in dealing with environmental issues in an integrated and coordinated manner. But thanks to education at all levels, more and more people are rising to these challenges. It is still an exciting time to be an environmental legal practitioner, student, academic or commentator.

1.

For an excellent account of the history of environmental concern in Australia see Bonyhady, The Colonial Earth, The Miegunyah Press, Melbourne University Press, Melbourne, 2000.

2.

For definitions of ‘environment’, see Chapter 2.

3.

See Preston, The Environment and its Influence on the Law. Available on the NSW LEC website at .

4.

See Preston, ‘Administrative Law in an Environmental Context: An Update’ (2007) 15 AJ Admin L 11.

5.

For an interesting and comprehensive account of the growth of environmental law in New South Wales, see Ryan, ‘Did We? Should We? Revisiting the 70s’ Environmental Law Challenge in NSW’ (2001) 18 EPLJ 561.

6.

23 Hen 8c 5.

7.

27 Hen 8c 18.

8.

The development of environmental awareness, and legislative responses, in Australia is set out in Preston, ‘Environmental Law 1927–2007: Retrospect and Prospect’ (2007) 81 ALJ 616.

9.

In the United Kingdom, the Anglers’ Co-operative Association was formed in 1948 by a barrister expressly for the purpose of taking legal action to combat the increasing pollution of Britain’s waterways. Since that time, it has handled well over 1000 cases with a very high success rate,

including 12 or so court cases. 10. Houghton Mifflin Co, Boston, 1962, republished 2002. 11. For example, Midnight Oil and Redgum. The ex-lead singer of Midnight Oil, Peter Garrett (who has legal qualifications), has served as president of the Australian Conservation Foundation (ACF), and was the Federal Minister for the Environment in the Rudd Labor government. 12. See . 13. See further Chapter 5. Lord Wilberforce commented in ‘The Law; Prose and Poetry’ (1969) 43 ALJ 414 at 419, that there is all the difference in the world between the sort of general, humanistic resolutions, in which international bodies are so prolific ‘and a tight document prepared by lawyers in well-thought out and practical terms’. 14. Since then, Murray Wilcox QC (now Justice Wilcox), Hal Wootten (formerly Justice Wootten) and Peter Garrett, Midnight Oil’s ex-lead singer and previous federal Environment Minister, who has legal qualifications, have taken on this role. 15. ‘Problems in Conservation’ [1975] 1 UNSWLJ 317. 16. D Ruckelshaus, ‘The Australian Government’s Role’, paper presented at the Seminar on Environmental Law, AGPS, Canberra, 1974, pp 7–8. 17. ‘Conservation and Government: Towards an Understanding of Roles’ (1974) 5 Search 241. 18. Landau and Rheingold, Environmental Law Handbook, Ballantine, New York, 1971, ‘Introduction’. 19. Kramer, ‘Open Society, its Lawyers and its Environment’ (1989) Journal of Environmental Law 1 at 1–9. 20. Kramer, ‘The European Experience: Half-time Environmental Lawyers’ (2001) 18 EPLJ 249. 21. The current Chief Justice of the Land and Environment Court of NSW, Justice Brian Preston, for example, first built up a practice as a barrister specialising in environmental law. 22. ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974. 23. ‘The Concept of Environmental Law — The New Zealand Law — An Overview’ [1975] NZLJ 631. 24. ‘The Role of the Courts in Environmental Law’ (1982) 25 Crim LJ 304. 25. ‘In Memoriam William O Douglas’ (1980) 8 Ecol LQ 405. 26. See his judgments in Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257 discussed in Chapter 19; and Commonwealth v Tasmania (1983) 46 ALR 625 discussed in Chapter 5. 27. See Chapter 19. 28. See Justice Bignold, ‘NSW Land and Environment Court — its Contribution to Australia’s Development of Environmental Law’ (2001) 18 EPLJ 256. 29. See Preston, ‘Jurisprudence on ecologically sustainable development: Paul Stein’s contribution’ (2012) 29 EPLJ 3. 30. See Chapter 11. 31. See Chapter 8. 32. See Chapter 8. 33. See Chapter 20. 34. The operation of the court is governed now by its Statement of Purpose, a type of self-imposed quality standard: see .

35. See C W Pincus, ‘Alternative Dispute Resolution’ (1988) Australian Law News 20. 36. Kirby, ‘The Future of the Judiciary’ cited in Stewart, ‘Environmental Risk Assessment: The Divergent Methodologies of Economists, Lawyers and Scientists’ (1993) 10 EPLJ 10 at 13. 37. See Stewart, note 36 above, at 12. 38. Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302. 39. Bazelon J in Ethyl Corp v EPA (1976) 426 US 941 cited in Oakes, ‘The Judicial Role in Environmental Law’ (1977) 52 NYULR 498. 40. Sax, ‘Defending the Environment’, Vintage Books, New York, p 69. 41. See Chapter 22. 42. ‘The Judicial Role in Environmental Law’ (1977) 52 NYULR 498 at 512–14. 43. Fisher, ‘Science, the Environment and the Law in New Zealand’ (1984) 1 EPLJ 295. 44. The much-publicised Wesley Vale pulp mill in Tasmania, for example, failed because without at least a 12-month study into wind and wave patterns in Bass Strait, the behaviour of toxic effluents discharged from the mill could not confidently be predicted. 45. See, for example, Asher v Melbourne Water (General) [2009] VCAT 1079 (computer modelling to predict water storage levels depending on different stream flow scenarios); Environment Protection Authority v Tyco Water Pty Ltd [2005] NSWLEC 453 (predictions of quantities of discharges of polluting matter). 46. See Director-General, Department of Planning v Epacris Pty Ltd (2006) 147 LGERA 372. 47. See Chapter 8. 48. ‘The Appropriateness of Dealing with Scientific Evidence in the Adversarial Arena’ (1986) 3 EPLJ 313 at 315. 49. Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302 at 313. 50. The advantages of specialist courts over courts of more general jurisdiction are set out by Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385. 51. See Chapter 19. 52. See Chapter 21. 53. See further Chapter 22. 54. See Macbeth, ‘The Response of the Bar to Environmental Law in the United States’ (1975) 1 Earth LJ 5. 55. See . 56. Overview, page 2. Available at . 57. Access to Justice Arrangements Report (2014), page 2. 58. Boer, ‘Our Common Future; the Report of the World Commission on Environment and Development: Implications for Environmental Law’, paper delivered to the International Bar Association, 1989, pp 15–16. 59. Sir Ninian Stephen, ‘The Growth of International Environmental Law’ (1991) EPLJ 183, 185. 60. See Chapter 5. 61. There are various types of environmental audit, but they commonly cover compliance with existing regulations, impact prediction, and testing, verification and adjustment or improvement of management systems. Increased penalties for poor environmental management and pollution have

led to fresh incentives for the evaluation and improvement of environmental management techniques: see Buckley, ‘Environmental Audit: Review and Guidelines’ (1990) 7 EPLJ 127. 62. See Chapters 20–21. 63. See . 64. See . 65. See . 66. Further details can be obtained from the National Environmental Law Association, . NELA publishes the National Environmental Law Review quarterly. There is also an Environment and Planning Law Association of NSW: ; while state law societies usually have an environmental law section. 67. Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 JEL 213 at 214 state, ‘According to environmental law scholars, environmental law as an academic discipline has spent the last 20 years coming of age. The maturing of it as a scholarly enterprise has been eagerly awaited and predicted but adulthood has never arrived. Environmental law scholars still perceive that the best is yet to come. The stubborn persistence of this perception of enduring immaturity signifies the need for environmental lawyers to take a harder look at, and talk more about, what they do, how they do it and why they do it’. 68. Ryan, ‘Did We? Should We? Revisiting the 70s’ Environmental Law Challenge in NSW’ (2001) 18 EPLJ 561. 69. See .

[page 23]

Chapter 2 Environmental Law: The Social and Legal Context Introduction 2.1 The purpose of this chapter is to explore the influences that impact on the making, implementation and interpretation of environmental law. ‘Social context’ includes political and economic influences. Matters that impact on policymakers encompass both legal and non-legal sources. Legal influences come from the existing rules and principles of common law and international law, while non-legal influences include the social context in which the law operates and which it is intended to serve. The making of environmental policy is also influenced by the findings and advice that emanate from scientific investigation and analysis of environmental issues, and by lobbying from non-government organisations such as environmental and business groups. Environmental policy is often a heady mixture of all of these, often competing, influences.

Governance and law 2.2 In Australia, as throughout the rest of the world, the development of the law is inevitably shaped by the system of governance adopted by our nation. Our Western style of government — capitalist parliamentary democracy — was inherited from our British forebears, and consequently our legal system reflects our desire to protect the social values associated with this form of government. As the High Court of Australia commented in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at [49]: Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a

result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

After settlement, Australia inherited the existing common law and legislation of the United Kingdom. The common law is that body of law declared and developed by the courts of law over centuries; legislation, also known as statute law, is the law embodied [page 24] in an Act of Parliament. Both forms of law exist side by side, unless and until an Act of Parliament abolishes or modifies the common law.1 2.3 The purpose of the common law is first and foremost to recognise and protect interests in private property, particularly, for the purposes of this book, land and the natural resources that may be found on land. In our common law system, the Crown is the source of all title to land. Sovereignty2 over land in Australia was originally claimed on behalf of the British Crown, and settlers in Australia therefore derived their title to land from the Crown. Throughout the centuries, the monarch has traditionally rewarded loyal subjects (indeed, ‘bought’ their allegiance) by grants of land, which in feudal times represented the most important access to wealth, status and power. Since feudal society was effectively under the control of those who owned land, namely the Crown and nobility, it was they who created the courts and appointed the judges. It should be no surprise to learn therefore that the common law was shaped principally to protect the interests of private landowners. For centuries, the acquisition of land has been relied on not only as a form of economic and political protection for the landowner’s family, but also as a means of developing, shaping and sometimes protecting the local environment. In the modern day, ownership and possession of land and natural resources remains a primary source of wealth and influence. The attitude of the common law to the superior rights of the private landowner is not therefore hard to understand. ‘For environment a traditional lawyer reads property. Establish ownership or possession and the armoury of the English legal cupboard is yours to command.’3 2.4 When framing environmental policy, and translating that policy into law, it is frequently necessary to confront the long-held notion that ownership of land carries with it the right of the landowner to do whatever he or she wishes on that land. This expectation developed because the common law approach placed no constraints on the right of the landowner to develop the land and access natural resources upon it. Because the principal source of

wealth and power in society related to the value of the land, the common law saw no need to regulate the private landowner, who could be trusted to look after the value of the land precisely because their own interests depended upon it. So long as the landowner did not unreasonably interfere with their neighbour, then they were free to do whatever they wished on their own land. Environmental legislation has been introduced precisely because of the inability or reluctance of the common law to effectively recognise the environmental values of land,4 as distinct from its property values. Rights to develop land, access natural [page 25] resources or clear land of native vegetation, for example, are all now constrained by legislative initiatives that have no corollary at common law. Understanding the common law is therefore an essential prerequisite to understanding environmental law. The common law is explained in Chapter 3.

The doctrine of the separation of powers 2.5 Effective parliamentary democracy depends on a separation of functions between the powers of the legislature (parliament); the executive or administration (government agencies); and the judiciary (the courts). Entrust all functions to one entity and you end up with a dictatorship! In our system of governance, therefore, parliament makes the law, the executive implements the law, and the judiciary enforces the law. Although some positions (such as a member of parliament who is also a minister) have a foot in two camps, the functions of that person in each case are clearly defined. Application of the doctrine thus ensures that the law is administered and enforced by entities other than those who made it. This assists to deliver two important principles of democratic governance — transparency and accountability — that are the foundations for proceedings for judicial review of administrative decisionmaking, described in Chapter 22. 2.6 A good example of the doctrine at work is the case of Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108, where a defence to a charge of committing a nuisance5 by polluting a landowner’s source of domestic water supply, which relied on a licence for the disputed activity being given by the New South Wales Environment Protection Authority (EPA), was summarily dismissed by the court. The plaintiff had a right in law to take water for domestic purposes.6 The doctrine of the

separation of powers means that only the legislative arm of government (that is, parliament) can create, modify or remove legal rights. The EPA, as part of the executive, had no power to effectively take away Mrs Van Son’s legal right to take water by the simple expedient of issuing a licence. A licence is an executive tool of management, not a law.7 Only a statute could effectively have taken away Mrs Van Son’s legal rights.8 [page 26] This means in practice that the holder of an executive licence that confers, for example, a right to develop or emit pollution into the environment, cannot do so without due regard to other people who might be affected by the activities carried out under the licence. Unless common law rights have been modified by statute, then the licence will have no impact on them. The extent to which a law affects established legal rights is a matter of interpretation for the judiciary.9

The Crown 2.7 The Crown is an important institution in Australian law. Ownership and possession of all land and natural resources in Australia (subject to native title)10 derives from the Crown, and title to land and resources that have not been transferred to private owners remains vested in the Crown. The Crown, as a concept, is really the embodiment of the people and institutions of democratic governance of a state or of the Commonwealth, as represented formally by the Governor-General of Australia and governors of the states. The Crown therefore is not the same as government. The government effectively looks after and manages Crown resources on behalf of the people, through the departments and agencies of government; for example, those that manage forests and national parks, allocate water and other natural resources, and control pollution. Governments come and go but the Crown, as an institution and holder of property, remains inviolate. Most, if not all, environmental legislation is expressed to bind the Crown, which means that the institutions of government must comply with environmental laws. This is necessary, first, because in law the Crown is not bound by legislation unless specifically or by necessary intent the Crown is so bound;11 second, because if the Crown were not bound it would leave vast areas of Australia outside the regime of environmental control and management devised for private landholders and, as a matter of policy, it is

essential that the Crown is bound by the same rules (though not necessarily in the same way). Today there is, therefore, little argument about whether the Crown is bound by environmental legislation; there is, however, much argument about whether the Commonwealth Crown should be bound by state legislation.12

Native title 2.8 Until the decision of the High Court of Australia in Mabo v Queensland (No 2) (1992) 175 CLR 1, it had always been assumed that, under the common law of England as received into Australia, the Crown enjoyed absolute ownership of all lands in the colony, and that therefore all rights to land were derived from the Crown. This notion had been built on the assumption that, when settled, Australia was [page 27] effectively terra nullius; that is, the land belonged to no one — a questionable fiction recognised under international law that was widely used by British colonialists to deny the existence of Indigenous peoples, their social structures and their laws and customs. The High Court in Mabo rejected terra nullius as a basis for denying Aboriginal entitlement to land at common law, and held that a form of native title could survive colonisation until extinguished by an exercise of sovereign power by the Crown. In other words, on settlement, the Crown did not necessarily acquire full beneficial title to land, but did acquire radical title; that is, the ability, by subsequent acts of sovereign power, to extinguish native beneficial entitlements.13 Extinguishment would occur by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title; for example, by a grant of freehold title to others,14 or by dedicating or reserving the land for other uses such as roads and other public works, or by legislation that showed a clear intention to affect native title rights and interests.15 Where such a declaration, appropriation or use was still consistent with the continuing concurrent enjoyment of native title over the land, however (for example, reservation as a national park or grant of grazing leases), then native title would not be extinguished.16 2.9 The extent of rights of native title will be ascertained according to the laws and customs of the Indigenous people who make a claim. Native title can be extinguished if the clan or group ceases to acknowledge those laws or

customs from which title is derived. On the other hand, the traditional rights and interests that may be recognised are not necessarily frozen in time; customs and laws may grow or change, but still represent a continuation of traditional activities.17 2.10 Mabo naturally sparked a great deal of political and legal debate, particularly in relation to the legal validity of past Crown grants of title and permits to access land and natural resources; the entitlement of Aborigines and Torres Strait Islanders to receive compensation for interferences with their enjoyment of their traditional lands; the management of natural resources; and mechanisms for determining the existence and extent of rights of native title.18 The Commonwealth government responded to Mabo by enacting the Native Title Act 1993 (Cth).19 The main objects of the Act are to: recognise and protect native title; [page 28] establish a mechanism for deterring mining claims for native title; and validate past acts such as grants of title and permits that may have been invalid because granted without regard to the existence of native title rights, and therefore potentially infringing the Racial Discrimination Act 1975 (Cth).20 2.11 Any finding of the continuing existence of native title is significant to environmental law because of the different regimes that may be applied to the management of the land and its natural resources by Aboriginal landholders.21 Indeed, it has been held subsequent to Mabo that native title to natural resources can exist independently of any connection to land.22 Where native title rights to harvest living natural resources are upheld, the extent of this right is not, however, likely to extend to commercial harvesting and sale; either because the native title holders did not traditionally engage in commercial practices,23 or because, if they did, the right has been abrogated by statute. In Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 at [87], the court reiterated that: ‘The right to take fish for commercial purposes cannot survive the enactment of laws which prohibit the unlicensed taking of fish for commercial purposes.’24 Such rights are likely to be restricted to the enjoyment of ceremonial and subsistence usages.25

2.12 The onus is on a native title claimant to prove the claim — not an easy task, since exercise of the claimed rights must be shown to have continued without interruption, and without extinguishment by the Crown, up to the present day. As the Full Court of the Federal Court said in Moses v Western Australia [2007] FCAFC 78 at [292], quoting the primary judge: The issue is whether the communities in occupation of the claim areas or part of them at sovereignty have maintained a connection with the land or waters by observing, as far as practicable, traditional laws and acknowledging traditional customs of their predecessors. This will be examined by taking the rights and interests earlier found to be presently exercised and considering in the case of each one whether such right or interest was exercised by that community at sovereignty.

[page 29] Because of the extent to which the Crown has ‘interfered’ in land and natural resources management over decades, it is notoriously difficult to establish continuing native title, particularly exclusive title. In Commonwealth v Yarmirr [2001] HCA 56; 184 AJR 113,26 for example, the applicants claimed native title over the sea and seabed surrounding Croker Island. The extent of the rights claimed extended to controlling access to tidal waters by others for fishing and hunting and the management of natural resources in the area. The court held that, although native title rights could be recognised in offshore areas, and although there was ample evidence of a continuing exercise of traditional rights in the waters in question, the claim essentially applied to Aboriginal people, and that claims to exercise exclusive rights to natural resources could not be upheld as against white people, who did not generally understand what the customs required, and who had, therefore, not been prevented from passing through the area. The right to control natural resources depended on the right to control access; and when this claim failed, so must the claim in respect of exclusive management. In any case, the recognition of exclusive rights was also prevented by international obligations to permit the passage of ships; by common law rights of public navigation and fishing; and by regulation of commercial fisheries by legislation. 2.13 The question as to what extent legislative control of natural resources might extinguish native title rights to traditional hunting and gathering27 was raised in Yanner v Eaton (1999) 105 LGERA 71. The appellant, whose claims had been denied in earlier proceedings in the Court of Appeal in Queensland, had used a traditional form of harpoon to catch two juvenile estuarine

crocodiles in the Gulf of Carpentaria area of Queensland. Under relevant Queensland law, it was an offence to take such animals without a permit, which the appellant did not have. That same legislation declared that all fauna was to be regarded as the property of the Crown. The respondent asserted that this meant that the Crown gained full beneficial ownership of fauna in Queensland, and that therefore any existing native rights to fauna must have been extinguished. On appeal, the High Court carefully assessed what was meant by this statutory declaration in favour of the Crown, a majority concluding that the true purpose of the regulation had been to establish a royalty regime, not to take property over wild animals for all purposes.28 Those rights were less than the rights of full beneficial, or absolute, ownership; the claimed right had not been extinguished and was subsequently protected by the Native Title Act.29 This legislation has since been replaced with the Nature Conservation Act 1992 (Qld), which declares that property in natural and cultural resources in protected areas30 and in protected animals and plants31 lies with the State. [page 30] The Native Title Act 1993 (Cth) s 211 provides that a law that ‘prohibits or restricts persons’ from fishing or gathering ‘other than in accordance with a licence, permit or other instrument granted or issued to them under the law’ does not prohibit or restrict the pursuit of that activity in certain conditions where native title exists.32 In Dietman v Karpany [2012] SASCFC 53, a majority of the Full Court of the Supreme Court of South Australia held that a native title right to fish had been extinguished by a statutory right to take fish subject to restrictions on the taking of undersized fish. The substantive effect of this legislation was to place all persons, including Indigenous persons, under the regime created by the statute.33 However, in the High Court, Karpany v Dietman [2013] HCA 47, this finding was reversed, the court holding that the relevant legislation, the Fisheries Management Act 2007 (SA), did not prohibit or restrict the applicants, as native title holders, from gathering or fishing for abalone in the waters concerned where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs, and in exercise or enjoyment of their native title rights and interests. Traditional hunting and gathering, and use of natural resources for ceremonial pursuits, is in any case often preserved by legislation.34 The High Court also declared in Western Australia v Ward (2002) 191 ALR 1 at 113 that:

… unlike the fauna legislation considered in Yanner v Eaton, the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full domain over the substances in question no matter whether the substances were on or under alienated or unalienated land.

In this instance, therefore, native title claims were held to be defeated. 2.14 Although native title claims are difficult to make out, because the Crown has extended its control over all but the most remote parts of Australia, and extended its reach over most aspects of natural resources management, a surprising number have been held to succeed or partly succeed.35 And neither is litigation the only way to establish native entitlements; many are determined by mutual agreement, even after litigation, as in Ward. It is clear, however, that even if native title to resources can be made out, this will not prohibit appropriate management control over those resources; regulation is not inconsistent with title. As the High Court said in Yanner v Eaton (at 83): … regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition36 and the line between the two may be difficult to discern.

[page 31] Native title rights are not likely therefore to inhibit decision-making about appropriate management; although of course the participation of, and discourse with, native peoples in developing policy and before making important decisions is a vitally important, and often legally required, precondition to management planning.37 Indeed, initiatives for joint management of land and natural resources that involve significant Aboriginal cultural heritage38 are likely to be far more effective in the long run than relying on native title claims to deliver exclusive control. Indigenous land use agreements (ILUAs), for example, can be negotiated and registered separately to any native title claim, covering such topics as Aboriginal agreements to development, compensation and how Aboriginal interests will coexist with others.39

Aboriginal land rights 2.15 Native title is not the only way in which native peoples may gain access, particularly exclusive access, to natural resources. Grants in fee simple made under Aboriginal land rights legislation may also have this effect. In

Northern Territory v Arnhem Land Aboriginal Trust (2008) 236 CLR 24, the High Court held that a grant in fee simple made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) conferred a right to exclude from the inter-tidal zone within the boundaries of the grant other persons, including those holding licences to fish granted under the Fisheries Act 1988 (NT). This led to a process of negotiated agreement with the Northern Territory government about access to those waters and their management.40

Overcoming private rights: the vexed question of compensation 2.16 The governmental approach to environmental management and protection has had to be applied in the context of a social system, supported by the common law that placed few restrictions on the exploitation of natural resources by private landowners. Environmental legislation, of course, now effectively makes natural resources management the business also of government, with a consequent potential to restrict access to, and impose management requirements on, the economic use and development of those resources. [page 32] Naturally, there are bound to be tensions between the previously unregulated private interests and government regulators acting in the public interest, tensions that often manifest themselves in demands for no regulation and deregulation or, failing that, compensation. Translating environmental policy into environmental law, however, inevitably means overcoming rules of common law that landowners should be free to exercise their proprietary rights within the boundaries of their own properties. While some intrusions into private rights have been successfully made without compensation, most notably in the areas of land use or environmental planning and pollution control, it remains true that the most significant environmental problems facing Australia today have also proved to be the hardest for governments to tackle because they force regulators to confront the traditional rights of private landowners; and trying to effect change without compensation is politically very difficult. 2.17 Town and country or urban planning succeeded because it addressed significant social rather than environmental problems; reforms reflecting increased environmental concerns were grafted on later. However, attempts to curb degradation and destruction of natural resources on private land — for

example, clearance of native vegetation, land degradation, salinity and loss of biodiversity — have historically proved difficult to devise, implement and enforce. As will be discussed in Chapter 3, water and fisheries reforms have also had to grapple with the difficulties inherent in modifying or removing common law rights and statutory entitlements that over the years had come to be regarded as de facto property rights. The creation of entitlements to water that carry all the hallmarks of a right of property, and separation of these from rights of property in land, under the National Water Initiative (NWI),41 was necessary to overcome the common law rule that licences are not transferable (see 3.16 and following), and also to deliver water management reform that would not be strangled by arguments about compensation for lost opportunities. 2.18 Since many of today’s environmental problems have been caused by the decisions of the past, when landowners and resource users were often encouraged to exploit and manage resources in ways that have now proved to be unwise, or at least unsustainable, many see strong equitable arguments in the proposition that society as a whole should bear the financial penalties associated with change rather than that individuals should be asked to shoulder alone this heavy burden on behalf of society as a whole.42 The argument that, since the functioning of a capitalist society is effectively based on the economic value of property rights, including statutory entitlements, any adverse dealing with those rights should be compensated, carries a very strong political message, if not a legal one. So, for example, when the South Australian government in the 1980s wished to limit the clearing of native vegetation throughout the state it found that it could not do so politically — although it could do so legally — without paying [page 33] out tens of millions of dollars in compensation for lost opportunities. This legislative entitlement was replaced in 1991 with an arrangement stipulating that financial assistance should be linked to entering into a heritage agreement that provides for management of native vegetation or other natural resources on the land.43 Compensation for clearance restrictions has been expressly rejected in other states, although it surfaced again in Queensland when the Queensland government called on the Commonwealth to compensate Queensland farmers for the restrictions placed on them, effectively holding up the implementation of clearing controls for quite a long time.44

2.19 Another argument in favour of compensation is that without such security, private interests may be less willing to take risks; for example, in conducting exploration for minerals and gas deposits,45 or investing in infrastructure for delivery of water or for commercial fishing. For this reason legislation commonly provides limited compensation where rights of exploration or extraction have to be suspended or removed,46 but not usually where they simply expire.47

Compensation for environmental restrictions 2.20 Acquisitions of property are compensable by law: see 2.28. However, if mere restrictions on land use were compensable then it would become either very expensive, or practically impossible, to implement policies and laws for environmental management. As Gray has said, ‘The progress of civilised society would effectively grind to a halt if every minor regulatory act of the state provoked an immediate entitlement to some carefully calculated cash indemnity for the affected landowner’.48 Most commentators agree that, in general, governments should not provide financial assistance to resource users to meet the costs of environmental compliance.49 Environmental compliance should be part of the normal costs of ‘doing business’. Compensation for regulatory restrictions is sometimes justified, however, on grounds of equity, to encourage efficient investment, or to enable transition to new standards of environmental care. It may be argued then that in such cases compensation [page 34] should only be offered for a transitional period as an equitable means of bringing about a rapid and irreversible transition from unacceptable to more preferred management practices.50 The South Australian example in relation to clearance of native vegetation, given above, can be viewed in this light: automatic compensation terminated with the repeal of the Native Vegetation Conservation Act 1985 (SA). 2.21 Another important consideration is that if irreversible losses are to be avoided, landowners need positive incentives to manage wisely. If, for example, farmers discover that remnant vegetation on their property contains a rare or endangered ecosystem, then they may have a strong financial incentive to fail either to report it or act to protect it.51 The Productivity

Commission warned in 200452 that legislation banning clearance of native vegetation had serious design flaws that could lead to ineffective and inequitable outcomes, and policies that did not engage landholders would ultimately fail. Economic incentives, rather than regulation and compensation, applied through property agreements, for example, may redress the balance.53 2.22 Governments have also introduced structural adjustment schemes to more directly ‘compensate’ landowners for environmental restrictions, although such schemes have no legal imperative to provide ‘just terms’ compensation. In ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, which concerned New South Wales legislation that had effectively reduced the plaintiff’s water entitlement by replacing an existing bore licence with an aquifer access licence, underpinned by an offer for ‘structural adjustment’, it was conceded in evidence that the structural adjustment payment would not be equivalent to ‘just terms’ compensation. In Spencer v New South Wales Minister for Climate Change, Environment and Water [2008] NSWSC 1059, the plaintiff had been offered a structural adjustment payment to purchase his property, which was affected by restrictions on clearance of native vegetation. Spencer sought an order to declare the offer invalid, because, among other reasons, the offer was manifestly unreasonable. The court held that the offer for the property, being based on market value, was adequate. The plaintiff’s claim was, in reality, that the offer did not adequately compensate for the loss of business opportunities brought about by the restrictions on clearance of native vegetation. The court did, however, make some caustic comments about the nature of the statutory scheme: The ‘unfairness’ in this case is that government has legislated in a way that renders the otherwise legitimate activities of Mr Spencer to be such that they are no longer viable as a business. Having done so, government then offers to purchase the property at a value that is necessarily less than the value that could be obtained if the prohibitions were not in force. If one takes an overall approach, there is no doubt that Mr Spencer is

[page 35] under a special disadvantage. The special disadvantage arises from the combined effect of valid legislation promulgated by the legislature that, by other legislation, provides for a compensation or assistance package to farmers, affected by the first legislative scheme, on a basis which does not provide compensation for the effect of the first legislative scheme.54

Rothman J then went on to make some more general comments about the impact of environmental restrictions, imposed in the ‘public interest’ on

private individuals, and whether those individuals should be expected to carry the burden of that public interest without adequate compensation: … the overall effect of the different pieces of legislation seems grossly unfair and unconscionable. … it is an extremely disheartening and sad occasion that a person, whose life and resources have been placed into rural property for the purposes of conducting a grazing and farming business, has been required to resort to this action. … Governments, not courts, make judgments about political policy relating to what, within reason, is for the benefit of the community. Mr Spencer does not dispute that the objects of the conservation policies adopted in the agreement between the Commonwealth and New South Wales are, at one level, for the benefit of the community. The Federal and State Governments have entered into a scheme to improve the environment and, in so doing, improve the lot of other rural and other proprietors. Nevertheless, they have done so at the expense of Mr Spencer. While all members of society must accept that there will be restrictions on their activities for the ‘greater good of society’, when those restrictions prevent or prohibit a business activity that was hitherto legitimate, because of the area in which it is operating, and assistance is offered which does not fully compensate for the restrictions imposed, society is asking Mr Spencer, and people in his position, to pay for its benefit. Nothing in the foregoing is intended as a criticism of either the current State or current Federal Government. These schemes were implemented by previous Governments both Federal and State, with bipartisan support. Nevertheless, it is a most unfortunate aspect of the operation of the scheme that a person in Mr Spencer’s position is effectively denied proper compensation for the restrictions imposed upon him by a scheme implemented for the public good. As earlier stated, ultimately that is a matter for government.55

2.23 Although regulation still remains the backbone of policy responses to environmental issues, it is being increasingly recognised that a combination of voluntary and regulatory techniques that encompasses both inducements and coercion is probably the optimal mix for balancing both private and public interests.56 As Gray [page 36] says, in the end the debate about compensation boils down to the question: ‘Just how minutely may government “control land without buying it”?’57 2.24 Where land management unreasonably interferes with others, it is easier to resist calls for compensation. Many planning decisions taken in the broad public interest, for example, affect private rights without compensation;58 and restrictions on emissions of polluting effluent are not compensated under the law because the common law has never recognised any right of one private landowner to unreasonably interfere with the property rights of another. However, where rights of natural resources management that do not affect other landowners are modified, restricted or removed, then claims for compensation are more difficult to resist. It could be argued that the public should be expected to pay for the future denial of existing rights currently being exercised in a lawful manner.

In Tasmania, for example, landowners who are refused certification for a forest practices plan because of anticipated effects on threatened species, or where the plan is conditional on protection of threatened species or threatened native vegetation communities, may apply for compensation; but the landowner is not entitled to compensation unless ‘the relevant conservation determination has the effect of requiring the landowner to exercise a higher duty of care for the conservation of natural and cultural values on the relevant land than is required under the Forest Practices Code’.59 In other words, this provision satisfies the principle that compensation should only be payable where a landowner is expected to do more than is normally required. On the other hand, it might also be argued that protection of threatened species and ecosystems is a normal condition of ‘doing business’ that should not be viewed as imposing abnormal standards of care and therefore should not be compensable. 2.25 The real problem with creating expectations that any intrusion into common law or statutory rights in the pursuit of environmental policies will be compensated is that governments will not be able, or will not want, to make sufficient money available to fund the environmental program and therefore the objectives will not be realised. 2.26 The political necessity to provide compensation can, of course, also lead to parliaments, as well as courts, reinterpreting existing rights in order to accord compensation in circumstances where otherwise it might not be strictly available. A licence or permit is not a right of property, and therefore revocation should not attract compensation.60 The Fishing and Related Industries Compensation (Marine Reserves) Act 1997 (WA), however, which provides compensation for modification or loss of ‘authorisations’, includes many examples of licences and permits within [page 37] the term authorisation.61 This reflects the perceived political necessity of attaching rights of compensation to withdrawal of entitlements that would not otherwise be compensable. To avoid arguments about whether compensation for modification or removal of ‘licences’ is payable, legislation may also expressly deny such relief.62 The tendency of modern resources legislation to create entitlements as a form of property does, however, force legislatures to consider the issue of compensation carefully before committing to particular policy outcomes, and to address the circumstances in which compensation will or will not be payable directly in the body of the legislation63 rather than leave it to the courts to interpret later.

2.27 The psychological and political attachment to compensation appears to have been overcome, however, at least as regards lost opportunities. For example, except in Queensland, recent restrictions on clearance of native vegetation have been introduced without schemes for compensation, and restrictions on development of listed heritage properties do not attract compensation. In place of provision for compensation have come schemes for financial assistance for resource maintenance and works. So, for example, property owners may now apply for government grants for undertaking land management and protection or heritage restoration, claim various forms of tax and rate relief, and enter into property agreements and covenants with financial benefits attached.64 The Commonwealth government has been keen to fuel the voluntary approach to natural heritage conservation by making millions of dollars available from the partial sale of Telstra to fund natural resources and heritage restoration and management projects through the auspices of the Natural Heritage Trust, and, more recently, through Caring for Our Country and the National Landcare Programme.65 Market-based, or economic, instruments providing for financial assistance are likely to prove far more attractive in designing future government policy than purely compensatory approaches.

Compensation for acquisitions of property 2.28 The courts adopt a presumption in interpreting statutes that parliament does not intend to modify or remove property rights without clear words or necessary intendment. Private rights are not abrogated by a statute unless the intention to do so is clearly stated.66 It was said by Kirby J in the High Court in Durham Holdings Pty Ltd v New South Wales (2001) HCA 7 at [28] that such a presumption rested on [page 38] the imputed aspiration of the law to attain, and not to deny, basic precepts of justice; though, like any presumption, this can be rebutted by clear words to the contrary.67 The Commonwealth Constitution clearly stipulates that laws of the Commonwealth that effect an acquisition of property must do so on just terms.68 This provision is discussed in greater detail at 5.32. Although state legislation generally provides for compensation for acquisitions of land and interests in land,69 it may not provide for just terms compensation for acquisition of other forms of property;70 and as there is no common law right

that would support such a claim,71 rights to compensation will therefore depend upon either statutory construction or voluntary payments by governments implementing policy initiatives such as schemes for ‘structural adjustment’. 2.29 In the absence of any other statutory intent, the first task in establishing a claim for compensation is to characterise the nature of the entitlement being ‘acquired’ as property. The concept of property denotes a sense of permanence and security,72 by contrast to a permit or licence that is revocable at any time. The legislative description of the entitlement, however, is not conclusive; the court will seek to discover the true nature of the arrangement rather than the title given to it. A characterisation or description of the nature of an entitlement granted under legislation as a ‘licence’, therefore, may not be conclusive of the legal nature of the interest actually granted. 2.30 In Commonwealth v WMC Resources Ltd [1998] HCA 8, for example, the High Court interpreted, from the nature of the rights given, that petroleum exploration permits granted under the Petroleum (Submerged Lands) Act 1967 (Cth) had all the hallmarks of a right of property. The question then was whether they had been ‘acquired’, thus triggering rights to compensation: see 5.32–5.33. In Rashleigh v Environment Protection Authority (2005) 138 LGERA 310, the Supreme Court of the Australian Capital Territory held that the refusal of an application for a licence to take water from underneath the plaintiff’s land amounted to an acquisition of ‘property’. Sterilisation of those rights effectively meant that the territory’s rights in the water were freed from the appellant’s rights to take that water from his own land, and therefore there had been an acquisition entitling the plaintiff to compensation. On appeal, Environment Protection Authority v Rashleigh [2005] ACTCA 42, the Court of Appeal, reversing this decision, said at [11]: ‘On a careful review of the authorities it seems to us that, at common law, an owner or lessee of land, while they have a right to access water flowing below that land, does not have property in [page 39] that water’; and also (at [18]) that: ‘the regulatory regime established by the Water Resources Act requiring a landowner to obtain a licence to operate a bore to extract groundwater would not amount to an acquisition of property, even if the nature of the landowner’s right to the water was proprietary’. In other words, a restriction imposed by a regulatory regime, in this case a

licensing regime, would not amount to an ‘acquisition’ even if a licence were refused.73 2.31 The approach of the Australian Capital Territory Court of Appeal in Rashleigh has effectively been confirmed by the High Court in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51.74 In this case, the majority of the court held that a reduction in volumes of water allocated by aquifer licences, which had replaced old-style bore licences, did not amount to an acquisition of property. There can be no acquisition unless some identifiable and measurable advantage is derived by another from or in consequence of the replacement of the plaintiffs’ licences or reduction of their entitlements. The plaintiffs’ rights under the bore licences did not ‘return’ to the state upon cancellation of those licences. The state gained no larger or different right. Three justices, however, did accept that the licences that were cancelled were a species of property and therefore capable of being ‘acquired’; while Heydon J, dissenting, held that indeed the licences had created property rights that had been acquired without just terms compensation, which could not be delivered by the ‘structural adjustment payments’ that had been offered. Three other justices concluded that, in the circumstances, it was not necessary (because there had been no acquisition anyway) to determine whether the bore licences ‘were of such an insubstantial character as to be no more than interests deafeasible by operation of the legislation which called them into existence’ per French CJ, Gummow and Crennan JJ at [80]. 2.32 The corollary to all this is that unless procedures for compensating a modification or removal of rights are included in a statute, then the courts may prefer either a construction that does not allow those rights to be unduly affected, or a construction that characterises those ‘rights’ as proprietary in nature so that statutory provisions providing for compensation can be applied. In other words, legislative provisions enabling public authorities to invade or erode existing rights and privileges should be construed strictly in favour of the individual.75 The courts often see themselves as providing essential protection to the rights of the individual against over-zealous use of governmental powers. 2.33 In South Australian River Fishery Association v State of South Australia [2003] SASC 174, the Supreme Court held, at first instance, that fishermen who were effectively banned from certain fisheries contrary to a previous agreement and the licensing regime that governed those fisheries, were entitled to reasonable notice of such restrictions and adequate compensation. The minister had offered ‘ex gratia’

[page 40] compensation, but this had been rejected as inadequate. The court interpreted the history of dealings in the fishery, including conferment of a power of transfer and the open-ended nature of the interests granted, as indicative of an approach by government that supported the treatment of those licences as designed to give security to the stakeholders, and therefore more in the nature of a conferment of interests in property rather than mere licences. On appeal,76 this decision was reversed. As Doyle CJ said (at [65]) the primary judge appeared ‘to have treated the licence and rights pursuant to the licence as analogous to property rights under the general law’. His Honour continued (at [75]), that, however, while: I do not dispute that the licence and associated rights may be regarded as a valuable form of property: see Kelly v Kelly (1990) 64 ALJR 234 and (1990) 92 ALR 74; Pennington v McGovern (1987) 45 SASR 27, [86] it is difficult to see why the same reasoning (that the scheme of arrangement had created permanent rights) would not apply to a licence in any scheme in which licences are renewable and transferable, and in which the licence gives the right to carry on a business for profit. The licence holder in any such scheme, or a person who purchases a licence in such a scheme, is in the same position as the licence holders in respect of the fishery. Any such licensee holds a licence which has a value that reflects the ability to earn income with the licence, and the ability to sell the licence. I cannot see why the introduction of transferability gives rise to an implication of permanence, or why someone who enters a scheme in which licences are transferable should be able to argue that such an implication should be drawn.

In other words, no ‘property’ had been acquired, and no statutory intent could be found that would entitle the holders of these essentially permissive rights to claim compensation. Whether property has been ‘acquired’ is discussed at 5.32.

The social context: framing environmental policy 2.34 In essence, environmental law is the almost inevitable result of determining environmental policy; the one follows the other almost as inevitably as night follows day. The reason for this is simply that if government wishes environmental policies to be enforceable, then they must be translated into environmental law. Government has no legal power other than that conferred on it by law; so if environmental policy is to be implemented and enforced then government regulators and managers must be given powers by law to do whatever is necessary to carry out the purposes of the governmental scheme. Governments can, of course, rely on persuasion,

economic or ‘market-based’ incentives and voluntary behaviour, rather than regulation, to deliver environmental policy;77 but when enforceability is an issue (which it always is), environmental policy must be translated into environmental law. [page 41] Gaining a ‘legal licence’ to operate, though, by conferral of a government approval of some sort, may not necessarily result in acceptance of a project or activity by the wider community (a ‘social licence’) that encapsulates society’s broader expectations. It has been said that society’s expectations in relation to use of land and other natural resources is the achievement of environmental and social justice, in three senses: distributive justice (sharing benefits and burdens); procedural justice (how decisions are made) and justice as recognition (who is valued and given respect and recognition).78 Traditional economic analyses may be deficient in adequately recognising issues of equity and distributive justice, as well as failing to acknowledge non-market values of natural resources.79 It is also clear that traditional economic values struggle to capture values that have no immediate social utility or are ‘intrinsic’ values; although at the very least the ‘value’ of the environment must be at least as much as the total ‘economic value’.80

The influence of science 2.35 Of all the influences that determine environmental policy, none is more compelling than science. Science is everywhere in environmental policy formulation and legal responses. Without it there would be no Convention on Climate Change or Kyoto Protocol; fresh outbursts of ozone depleting substances would still be attacking the ozone layer; hazardous substances would be freely available for use and disposal; pollution would be far more prevalent; and threats to biodiversity would remain unrecognised. Ever since Rachel Carson81 discovered the flow-on effects of pesticide contamination to higher levels in the food chain, science has been informing and influencing environmental policy and decision-making. 2.36 Research science can be divided basically into three classes. The first is research that is undertaken for its own sake, either because an environmental problem is suspected or acknowledged, and the causes and remedies need to be identified;82 the second is research that is required to fulfil government priorities for action, which may be informed by the first type of research, or

may need to be undertaken to deliver government policy agendas, such as natural resources management reforms;83 the third [page 42] is research connected with regulatory enforcement, such as analysis of water samples to determine the presence of pollutants in unauthorised concentrations.84 As Macrory has said, ‘scientific understanding will remain an essential underpinning for most types of environmental standards’.85 The first two are examples of proactive research; the third is essentially reactive, though all can end up influencing policy reform processes. Science is also important in providing evidence in legal cases. Parties to civil enforcement actions,86 arguing merits appeals,87 and conducting or defending prosecutions,88 often call scientists as ‘expert witnesses’. Indeed, the court itself may appoint expert witnesses.89 Naturally, the evidence of experts will be instrumental, decisive even, in reaching conclusions about environmental disputes. The influence of science is also particularly obvious in the implementation of a number of important strategies for natural resources management and decision-making: determining triggers for the application of the precautionary principle;90 determining the status of native wildlife as ‘threatened’;91 assessing mitigation measures to reduce impacts of development on biodiversity;92 providing the factual basis for predictions of environmental impact in EISs;93 and determining suitable standards for pollution regulation and control.94 2.37 Scientific advice, of course, is also very important for informing international policy and legal development. Both governmental and independent organisations of scientists engage in the provision of such advice. The Intergovernmental Oceanographic Commission (IOC) is an example of a United Nations sponsored organisation (specifically UNESCO),95 and so is the Intergovernmental Panel on Climate Change (IPCC).96 The International Council for Science97 is an example of a non-government organisation that has worked with international agencies addressing climate change. The Wentworth Group of Concerned Scientists is one organisation that acknowledges the contributions that science can make to public debates about environmental policy.98 [page 43]

Non-government organisations (NGOs) 2.38 The role of non-government environmental organisations (NGOs) is important to the creation and enforcement of domestic law, and of particular significance in the creation of international environmental law. Apart from the lobbying influence that NGOs exert in the international arena, NGOs may be permitted observer status at important international negotiations (for example, those on whaling or climate change), and may thus take the opportunity to lobby delegates to take particular positions. NGOs also take part in the creation of environmental laws; the most important in this regard is the World Conservation Union (IUCN or International Union for the Conservation of Nature),99 which has cooperated with international agencies in work, for example, on the Convention on Biological Diversity and other international treaties. The IUCN, also has a Commission on Environmental Law,100 which boasts a worldwide membership of environmental lawyers.101 Within Australia, NGOs perform important functions in raising community awareness and putting political pressure on governments in relation to policy formulation, implementation and enforcement.102 For example, the international campaign organised by the Wilderness Society in the early 1980s, over the proposed Gordon-below-Franklin dam in Tasmania, in which over 1000 protesters were arrested at the site of the proposed dam, convinced the then federal government led by Bob Hawke to enact legislation outlawing construction of the dam.103 Thirty years later the ‘power of protest’ is being shown again by the success of the Lock the Gate Alliance in opposition to coal seam gas and coal mining,104 which has succeeded in gaining a moratorium on new approvals and forced the New South Wales government to put forward a draft strategic land use proposal105 to try to accommodate the interests of both miners and protesters. 2.39 NGOs are frequently formed to fight specific issues, and in this role lobby governments and even initiate legal action; for example, over the extension of the runway at Sydney Airport;106 about logging operations in local forests;107 deepening a shipping channel in Port Phillip Bay;108 the removal of bats from the botanic gardens [page 44] in Sydney;109 a pulp mill in northern Tasmania;110 and local heritage issues.111 NGOs are now taking on the responsibility for lobbying in respect of policy on climate change, and undertaking court-based challenges to projects that have implications for climate change.112 NGOs are frequently asked to make

submissions on government policy proposals, sit on advisory committees, and respond to all sorts of invitations to make presentations about all manner of issues, which often seriously compromises the resources that these organisations have to respond to all these ‘initiatives’ without some assistance with funding, and leads to the well-understood problem of ‘burn out’ of key personnel. Nevertheless, community, as well as government, expectations of NGOs have seen recognition in the courts in the redefining of rules of standing that now take into account the legitimacy of NGOs seeking to enforce issues of public environmental concern. A few decades ago they would have been denied access to the courts as groups that had a ‘mere intellectual or emotional’ interest.113 NGOs contemplating legal action often use the services of the Environmental Defenders Office,114 a public interest law firm, to give advice, represent them, find willing lawyers who might give ‘pro bono’ assistance, or secure litigation funding from Legal Aid.115 Recently, EDOs have been targeted by reductions in government funding; a policy that ignores the advice of its own Productivity Commission, which recommends that there are strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation, including in relation to environmental matters.116. Business groups may also form ‘NGOs’, for the purpose of lobbying for particular outcomes for particular business or industry sectors. Restrictions on political donations attempt to ‘level the playing field’ with respect to this form of influence on policymaking117 and thereby avoid such lobbying degenerating into essentially corrupt activity.118

Tortious actions against environmentalists and protesters 2.40 Landowners and others with rights to exploit natural resources frequently attract protest action, to which they are entitled to respond by using tortious actions such as trespass. Nevertheless, a right of peaceful protest is widely regarded as a [page 45] fundamental freedom, or human right, and protest action119 has been an important form of environmental activism for environmentalists and other community groups over the last 40 years. The Franklin Blockade in Tasmania during the summer of 1982–83, during which some 1100 people were arrested

in protest action against the proposed Gordon-below-Franklin hydro-electric scheme, which would have flooded an area of World Heritage significance, is the most famous example; but there have been many others, ranging from interfering with logging or construction works to influencing shareholders or consumers. Legal issues surrounding direct activism frequently turn on whether environmental protesters, or sometimes those who seek to remove them,120 have committed criminal offences, and the targets of direct action frequently ask for police protection and urge courts to impose restrictive bail conditions that limit the chance of the protester returning to the protest site. While the legalities of protest action must be dispassionately evaluated by the courts, courts are also wary of the democratic implications of stifling traditional freedoms, such as rights of peaceful protest. The criminal law has not proved to be a significant deterrent to peaceful protest, because even where prosecutions are successful, penalties tend to be fairly low. Pursuit of costs in successful prosecutions may prove to be a greater deterrent. 2.41 Industries at risk of protest action have sometimes turned their attention to civil claims for damages against protesters, threatening actions ranging from economic loss to defamation. The purpose of such actions is undoubtedly to cause such stress to those being sued that they will take no further part in protest action, and to act as a deterrent to others. A successful legal outcome appears secondary.121 One example is the action brought in 2004 by Australian Wool Innovation against PETA, People for the Ethical Treatment of Animals, who were trying to persuade international retailers not to buy Australian wool: see Australian Wool Innovation Ltd v Newkirk [2005] FCA 290. The case alleged contraventions of s 45D (secondary boycotts for the purpose of causing substantial loss or damage) and s 45DB (boycotts affecting trade or commerce) of the Trade Practices Act 1974 (Cth); unconscionable conduct in contravention of s 51AA of the Act; the tort of conspiracy, and the tort of intimidation. After the respondents unsuccessfully sought to have the case [page 46] dismissed,122 the court found that prima facie breaches of the Trade Practices Act had been established.123 2.42 The most well-known example of legal action being taken against protesters is probably the Gunns 20 litigation, the case instigated by Gunns Ltd in 2004 against 20 organisations and individuals including Senator Bob

Brown and the Wilderness Society over the campaign against old-growth woodchipping in Tasmania: see Gunns Ltd v Marr [2005] VSC 251. The litigation claimed damages, including aggravated and exemplary damages, injunctions and costs for disruption of the plaintiffs’ businesses, allegedly caused by various tortious actions of the respondents. The torts relied on included interference with trade or business by unlawful means, wrongful interference with contractual relations, conspiracy to injure and defamation. After various revisions to the statements of claim,124 and refusals by the court to make documents under the control of the respondents available to the plaintiffs,125 the proceedings against many of the original respondents were discontinued, and the litigation has finally been brought to a close with the timber company agreeing to settle with the last four of the so-called ‘Gunns 20’.126 Both the PETA and the Gunns litigation seem to have had, as their main purpose, an intention to tie up the respondents in lengthy litigation, with consequent threats to their financial resources. Even where a party is successful in defending litigation, substantial costs will often be incurred that are rarely all recoverable from the losing party. Clearly, the hope is that such action could result not only in a form of punishment to the protesters, but also hit their financial resources and provide a deterrent to others contemplating similar protest actions. Whether organisations that use such tactics win any points for public relations is debatable. Tasmania, a jurisdiction that a long history of protest activity, has now enacted a remarkable and controversial Workplace (Protection from Protesters) Act 2014 (Tas). This Act, which is principally designed to reduce protest activities in relation to forestry and mining, stipulates fines for hindering or obstructing protected business premises of up to $10,000 for individuals, or up to four years imprisonment for protesters who commit a further offence.127

The media 2.43 The prime function of the media is to disseminate information, although there is no doubt that it also engages in setting, or influencing, public opinion. The extent to which either of these functions relies on objective fact is often debatable; though the media is as essential to public fact finding about environmental issues, domestically and globally, as law reporting is to finding out about the law. Universal journalism

[page 47] values are said to encapsulate the pursuit of truth, the valuing of objectivity, the principle of fairness and the practice of accuracy.128 It is not the function of this book to enter into a debate about whether these values are always apparent in media reporting. It has to be acknowledged, however, that without media exposure, NGOs would be less effective; community concerns about so many environmental issues would not have eventuated; and environmental policies and laws may well not have been devised.

Local government 2.44 Australia has over 550 local councils, the larger ones containing a population base that is larger than some of the states and territories.129 The importance of local government as a major influence on sustainable environmental management was recognised at the Earth Summit in 1992 by the inclusion of a chapter (Ch 28) on local government in the action plan Agenda 21: Because so many of the problems and solutions … have their roots in local activities, the participation and cooperation of local authorities will be a determining factor in fulfilling their objectives. Local authorities construct, operate and maintain economic, social and environmental infrastructure, oversee planning processes, establish local environmental policies and regulations, and assist in implementing national and subnational environmental policies. As the level of governance closest to the people, they play a vital role in educating, mobilising and responding to the public to promote sustainable development.

It was recommended in Agenda 21 that each local authority should develop its own ‘Agenda 21’ through consultation and consensus, and some Australian local government authorities (in general, the more well resourced) have responded to this challenge. When the Australian Local Government Association signed the IGAE in 1992, it also committed itself to pursuing the principles of ecologically sustainable development (ESD) through its decisionmaking processes.130 Legislation such as the Local Government Act 1993 (NSW) has since made this a mandatory requirement for all local government functions.131 The legitimacy of the role being played by local government in environmental management is recognised by the federal government,132 other commentators,133 and of course by the Australian Local Government Association.134 Local government has undergone a rapid transformation from being regarded simply as a works authority

[page 48] dealing with roads, rubbish and sewers, to an active and equal participant in the development and delivery of environmental management programs (EMPs), though funding to implement programs remains a contentious issue.135 Much of the legislation in this book is implemented, on a day-bybasis, by local government, either alone or in conjunction with state authorities.

Environmental rights as human rights 2.45 In some countries environmental protection is delivered more through human rights provisions in national constitutions than by specific legislation.136 The concept of constitutionally guaranteed human rights often extends to preservation of environmental quality. For example, the Constitution of the Republic of South Africa 1996 states that everyone has a right to an environment that is not harmful to their health or wellbeing, and that securing sustainable development, promoting conservation, and preventing pollution, are central to this right.137 The Constitution of the Philippines refers to protecting people’s rights to ‘a balanced and healthful ecology in accord with the rhythm and harmony of nature’.138 In Minors Oposa v Secretary of the Department of Environment and Natural Resources,139 this right was extended to as yet unborn generations that might suffer in consequence of unlawful logging operations. In India,140 the Supreme Court has declared that both the precautionary and the polluter pays principles are part of the law of India by reference to the constitutional mandate to protect and improve the environment.141 Remedies against pollution are often sought by reference to fundamental human rights.142 The European Court of Human Rights has also found that environmental degradation may constitute breaches of provisions of the European Convention on [page 49] Human Rights art 8 that declares respect for family and private life. Breaches143 of the Convention have been found, for example, in cases involving the impacts of fumes and contamination on nearby residents of a waste treatment plant;144 failure to inform local people about potential risks from a nearby chemical plant;145 airport noise;146 and road noise and vandalism.147

2.46 Australia, of course, in common with its United Kingdom ancestral heritage, does not have a Constitution that addresses human rights. The Constitution of Australia is a vehicle for delivering the infrastructure of federal government, not a document that guarantees fundamental rights and expectations. Fundamental rights and freedoms in this country are guaranteed more through the values inherent and practised in our parliamentary system of democracy, and through specific provisions of legislation — for example, conferring rights of public participation in environmental decision-making — than through any formal written constitutional guarantee or ‘Bill of Rights’. The United Kingdom, in fact, as a member of the European Union, has had to enact the Human Rights Act 1998, making the European Convention on Human Rights directly enforceable in British courts.148 A complaint about noise pollution from low flying aircraft has been upheld under the ‘respect for family’ provision of this legislation.149 In Australia, the Australian Capital Territory150 and Victorian151 governments have enacted human rights legislation that could conceivably borrow from some of the concepts adopted by interpretation of the European human rights provisions. In Smith v Hobsons Bay City Council [2010] VCAT 668, VCAT was asked to consider whether a condition of a planning permit requiring screening to prevent the applicant overlooking a neighbour, in the context of a planning scheme that [page 50] contained objectives, standards and guidelines about overlooking, was incompatible with the Victorian Charter of Human Rights and Responsibilities. The tribunal determined that any decision that properly considered all relevant planning considerations would represent a reasonable, proportionate and justifiable limitation on the right not to have privacy, family or home arbitrarily interfered with and would not be in breach of the Charter. The tribunal further expressed the view that it would be a rare and exceptional case where a planning scheme provision was not Charter compatible. The fact that such rights are not expressed in written form, of course, could lead to governmental excesses, though the courts are particularly vigilant in protecting the rights and freedoms traditionally associated with our unique style of parliamentary democracy. This protection manifests itself, for example, in court-based rules about procedures and standards for government decision-making, which include rights to be informed and rights to be allowed to make representations when legitimate interests and expectations are about

to be affected.152 Many environmental ‘rights’, such as freedom from unreasonable levels of pollution, are also delivered by the day-to-day administration of legislation. Rights to participation, information and access to justice (‘environmental democracy’) are seen as fundamental human rights at an international level,153 and environmental law in Australia delivers on these to a greater or lesser extent in all jurisdictions.154 The idea that human rights should include environmental rights may be given some impetus by the Dutch case of Urgenda Foundation v Dutch Government (Dutch Climate Case) C/09/456689 / HA ZA 13-1396 (2015).155 Article 21 of the Dutch Constitution imposes a duty of care on the State relating to the liveability of the country and the protection and improvement of the living environment. This provision does not stipulate precisely how this duty of care should be exercised. The court said that in order to determine the scope of the State’s duty of care and the discretionary powers in this respect that it was entitled to exercise, the court would consider also the objectives and principles of international and European climate policy. The answer to the question whether or not the State was taking sufficient mitigation measures against climate change in responding to this duty depended on many factors, with two aspects having particular relevance. In the first place, said the court, it had to be assessed whether there was ‘unlawful hazardous negligence’ on the part of the State. Second, the State’s discretionary power was relevant in assessing the government’s actions. The State clearly [page 51] has the discretion to determine how to fulfil its duty of care, but this is not unlimited: the State’s care may not be below standard. In the event, the court upheld the plaintiff’s claims, and required the government to take more effective climate action to reduce the Netherlands’ share in global emissions. This is the first time that a court has required a State to take precautions against climate change. Although compelling, however, this case should be treated with caution in other jurisdictions since it clearly turned upon aspects of the Dutch constitution and associated concepts of the duty of care.

Rights of nature: ethics and environmental law 2.47 Many people would agree that the natural world has an intrinsic right to exist and to evolve, a right entirely separate from its practical or potential use to the human species. In translating this ethic into environmental law, it has been suggested that this should result in rights for elements of the natural

world to bring court-based actions for protection, suitably represented by a ‘guardian’ who would bring proceedings on behalf of the natural entity.156 Such a concept found some support from Douglas J in the celebrated case of Sierra Club v Morton,157 but since then the idea has gone nowhere in practical terms. What has happened, however, is the increasing ability of NGO ‘guardians’ to gain access to the courts in their own right, through reform of the rules of ‘standing’, to challenge decisions and activities that might impact on the natural world.158 There is no doubt, however, that ethical values affect government policymaking, and environmental values are held in broad regard by society in Australia just as they are in most parts of the world. Ethical public values commonly fuel, for example, attitudes to animal cruelty,159 illustrated starkly by the acrimonious debate on battery hen farming,160 whaling161 and export of live animals,162 and the level at which environmental standards for performance are set;163 ‘environmental and social values, in particular, are not necessarily preformed or fixed but for many people emerge out of debate, discussion, and challenge as they encounter new facts, insights and judgments contributed by others’.164 Ethical values help to explain, for example, why, in terms of legislation, non-native wildlife is not accorded the same protection as native wildlife;165 [page 52] and why threatened species of native wildlife are accorded more protection than non- threatened species.166 2.48 The search for public values is commonly undertaken in Australia through mechanisms for public consultation, either mandated by legislation or voluntarily undertaken by government regulators, particularly in relation to ‘forward’ or strategic planning, as well as project-based consultation.167 Ultimately, however, balancing different values is a matter for politics.168 The courts too, though it is not their business to make policy, cannot remain immune from public expectations. Recognition of these public values or expectations has been responsible for the courts adopting a rather more conciliatory approach to demands for access to courts by NGOs in recent years;169 has been responsible for the uptake of principles of sustainable development in court-based consideration of disputes;170 and is to some extent reflected in increases in penalties awarded for infringements of environmental legislation.171 2.49 The Chief Justice of the Land and Environment Court of New South Wales has identified various aspects of regulation and access to justice that

could support a more ecocentric approach to law and policy:172 for example, the inclusion of intrinsic environmental values in the statutory objects of legislation; ensuring that these are relevant considerations in decisionmaking; making persons who wish to exploit or harm the environment carry the burden of proof; identifying environmental outcomes or standards that are not to be compromised or are to be achieved; and adopting procedures, standards and remedies that facilitate access to and deliver justice.

The public trust 2.50 Some commentators maintain that environmental decision-making and sustainable resource allocations should be subject to the principles of stewardship espoused by the doctrine of the public trust.173 Stewardship is a notion often aired in relation to management responsibilities of private landowners; the public trust as a doctrine, however, focuses on government responsibilities for proper management of public natural resources. The idea of the public trust is not new. It was developed in the law of the Roman Empire and bears a very close resemblance to our own conceptual ideals of public rights in the maintenance of environmental quality. The theory is really very simple: that natural resources such as rivers, the seashore, air, and wilderness areas are the common property of humankind, to be held by the Crown or government ‘in trust’ [page 53] for the common benefit and use of the public generally. This principle has partly survived the development of Anglo-Australian common law through the recognition of public rights over the seashore and tidal waters and, to a more limited extent, in the establishment of public parks and the protection of wildlife. However, the doctrine as a recognisably enforceable principle of law is really limited to the United States. 2.51 Professor Joseph Sax says that the idea of a public trusteeship rests on three related principles.174 First, that certain interests — like the air and the sea — have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principal purpose of government to promote the

interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit. The adoption of such a principle in Australia would mean that individual state governments would not be able to sell off or lease Crown land, or license developments on that land, for purely private gain, unless it could be shown that some observable public benefit would ensue from the project, and that such benefit would more than adequately compensate for any notable diminution of previous public uses in that area. The acceptance of the public trust doctrine does not, of course, mean that no development on public lands can ever be carried out. It would be very unusual if any government-backed schemes could be shown to be totally bereft of public benefit. The trust doctrine simply demands a balance between what will be gained and what will be lost. Governments may claim to make such judgments already, of course, but acceptance of the public trust idea does at least give citizens the right to challenge governmental decisions affecting that trusteeship in a court of law. What is more, since common resources are treated as assets that belong equally to every citizen, then any individual, as ‘beneficiary’ under the trust principle, will have standing to enforce the trust.175 Particularly important has been the recognition, under this doctrine, that recreational and aesthetic interests are just as worthy of protection as more traditional economic and property rights. 2.52 In Australia, Meyer176 has described the doctrine as ‘submerged’, or ‘sleeping’, identifying a number of cases in which the language employed by the courts has been similar to the definition of public trust rights in the United States. Direct recognition of the doctrine has not, however, been forthcoming. It was rejected, for example, by Smithers J in Kent v Johnson (1973) 21 FLR 177. Counsel had argued in that case that there was a public trust in the Black Mountain reserve, Canberra, arising out of the declaration of that reserve as a public park, and as a result the government was bound to maintain the environmental quality of the area. The erection of a tower on [page 54] the hillside would injuriously affect the reserve and surrounding area. Smithers J, in summarily dismissing this contention, simply said, ‘I do not think there is any such trust or obligation upon the defendants arising out of the declaration of the reserve as a public park …’. The doctrine was revisited in Willoughby City Council v Minister Administering the National Parks & Wildlife Act (1992) 78 LGERA 19, where

the court accepted that there was a ‘public trust’ to protect and preserve national parks and use legislative powers to fulfil the statutory purposes of reservation. By 1997, Mason P in the New South Wales Court of Appeal was confident enough to declare that the concept had ‘belatedly re-emerged’,177 although experience since suggests this may have been a little optimistic. The doctrine has gained more traction in other Commonwealth countries.178 However, in a case involving unlawful pollution of waters in New South Wales it has been commented that a statutory licence to pollute cannot be regarded as merely a contract between the regulator and the licensee, because to do so would offend the notion of ‘public trust’ on which a licensee operates.179 This line of authority must now be doubted, however, following the preference expressed by Preston J in Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278 that describing a breach of a licence condition as breach of a public trust adds nothing to the characterisation or seriousness of the offence and there is no need to graft such a concept onto the nature of the statutory scheme. 2.53 The notion of government stewardship of resources, however, even if accepted in principle as a policy of management, has not really crystallised into an enforceable legal obligation. Neither has stewardship really gathered momentum as a notion in conferring obligations on private operators, although the increasingly accepted concept of ‘extended producer responsibility’ or ‘product stewardship’180 for product development is beginning to result in specific legal obligations based on stewardship.181 A related concept is the notion of a legal ‘duty of care’ for the environment or for biodiversity — a responsibility that can be met not by imposing legal obligations directly, but through the adoption of codes of practice and land management agreements, and through the issue of administrative orders to carry out positive action to treat the causes of environmental degradation.182 Imposition of more specific [page 55] affirmative duties on landowners, either directly imposed by legislation, for example to control noxious species,183 or arising out of relationships entered into by the landowner, such as negotiation of a property agreement,184 biodiversity offset185 or carbon trading arrangement,186 will also introduce notions of a ‘duty of care’ for the environmental assets the subject of such obligations.

Translating environmental policy into environmental law 2.54 Modern environmental law making is influenced by principles of construction, content and interpretation that reflect the inherent wisdom built up over centuries of practical application of legal concepts and principles in legal disciplines that have no obvious connection with environmental issues. In turn, the application and interpretation of environmental laws is also extending concepts devised by those other disciplines, confirming the flexibility of the law to respond to the demands of modern environmental problem-solving and reflect community expectations that the law will indeed measure up to the policy agenda. This book is replete with examples that demonstrate how the making and interpretation of environmental laws is influenced by constitutional law, torts, administrative law and criminal law in particular; and how in turn environmental law is influencing the further development of those disciplines.187 The task of translating environmental policy into environmental law falls to parliaments, responding to executive government initiatives and political bargaining, while the task of interpreting the meaning of legislative enactments is entrusted to the judiciary.

Legislation and legal instruments 2.55 In environmental law, statutes are used primarily to create government regulators, where none previously existed; create specialist courts or tribunals to hear environmental cases; give powers to government agencies to regulate activities that may impact on the environment and to manage natural resources; and provide for means of public participation, which includes responding to proposed plans, projects and activities, enforcing the law, and disputing environmental decision-making. Statutes also commonly authorise government agencies to create further rules that will assist them to carry out their functions, in the form of regulations or other types of ‘statutory instruments’; for example, instruments of management such as environmental planning or protection policies, which may well have a status as legal instruments, despite the somewhat misleading term ‘policy’.188 In addition [page 56] to legal instruments, government agencies may also publish guidelines,

practice notes, codes of practice and other advice, which may have to be interpreted to gauge their legal effects. A statute therefore provides a framework of legal principles; the detail is often fleshed out by regulations, other subordinate rules and non-legal advice statements. For example, in New South Wales, environmental planning is governed by the regime contained in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA). This statute contains the fundamental principles that govern strategic environmental planning, development control and environmental assessment in the utilisation of land and other natural resources. Much of the practical detail of the statutory scheme and its administration is, however, contained in the Environmental Planning and Assessment Regulation (latest version 2000), several dozen state environmental planning policies (SEPPs), and over a hundred local environmental plans (LEPs), all of which also have the force of law. In addition, there are development control plans, planning guidelines and practice notes. Therefore, when considering questions of environmental planning one must consider not only the Act, but also the regulations and environmental planning instruments (EPIs) created under the authority of the parent statute, as well as non-legal yet practical advice that will assist in the interpretation and application of the legal components of the regime. 2.56 Although guidelines, codes of practice, practice and advisory notes, and most types of policies are generally not sources of law, there are exceptions and all environmental legislation must be carefully scrutinised to understand the legal status of the instruments being created. For example, although in Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 a forestry code of practice was held by the court to be ‘aspirational’ — in other words, not a legal instrument — nevertheless codes of practice may be recognised as legal instruments in circumstances dictated by legislation, such as where they are deliberately recognised by government agencies and accorded formal status as legislative instruments.189 In Victoria, the Code of Practice for Timber Production 2007 mandates the production of forest management plans to set out detailed prescriptions for the conservation of native forest fauna, and mandates compliance with measures specified in action statements made under the Flora and Fauna Guarantee Act 1988 (Vic). It also requires the precautionary principle to be applied to decision-making. Clearly, this Code is intended to have legal, not just aspirational, effect.190, 2.57 Guidelines would generally be regarded as advisory only191. However, in Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215,

heritage guidelines were interpreted by the court as imposing mandatory requirements by virtue of [page 57] being linked to a ministerial authorisation.192 Where ‘policies’ set out standards for compliance, then clearly those aspects of the policy create enforceable obligations; for example, State Environment Protection Policies in Victoria.193 2.58 Executive orders194 and plans of management195 are also likely to be regarded as legislative in character. In Schwennesen v Minister for Environment and Resource Management [2010] QSC 81 at [35], the court opined that in determining whether an instrument is legislative or administrative in character, oversight by parliament, in the form of tabling and capacity for disallowance, is a strong indicator that a decision is legislative in character; though an absence of such a procedure is not fatal to its characterisation as legislative. The clear lesson here is that the description of an executive initiative is not a real indication of its status as a source of environmental law. 2.59 Once an instrument is characterised as executive, however, rather than judicial, it is not subsidiary legislation and therefore not reviewable by the courts. For example, in Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66, the Supreme Court of Western Australia ruled that exemption instruments, made by the Minister under the Fish Resources Management Act 1994 (WA) that allowed for a baiting program for white sharks to commence, were executive instruments not legislative, and therefore did not need to be published in the Government Gazette. It is important to note that where statutory duties are imposed by legislation on persons carrying out activities that are subject to regulatory control, then a party will not be able to contract out of such obligations by attempting to transfer them to other parties.196

The role of the judiciary 2.60 Where a dispute arises about how to interpret a piece of legislation, the issue can only be finally determined by referring it to a court for resolution. It is part of the doctrine of the separation of powers that an independent judiciary should determine questions of law, not the body that made the law.

One of the ramifications of Australia having a federal system of governance is that there exist two court hierarchies: one federal and one state. Federal courts deal with issues arising out of federal, or Commonwealth, law, while state courts deal with issues arising out of state law. The High Court of Australia, however, operates in both jurisdictions. In addition to hearing federal matters regarding interpretation of the Constitution, the court is also the ultimate court of appeal for all disputes, under [page 58] both federal and state law. Until 1986, there was an additional avenue of appeal to the Privy Council in London, which was traditionally the ultimate court of appeal for disputes from Britain’s external territories and colonies. This has now been abolished in all jurisdictions. The judiciary, of course, also applies principles of common law. It is important to appreciate at the outset that the body of law that is contained in the common law is not necessarily displaced or extinguished by an environmental statute; the statute has to be interpreted to gauge its effect on the common law. Frequently, an environmental statute will make no impact on the common law; but equally, it may effectively change centuries of legal tradition.197 2.61 Judge-made law depends on a system of ‘precedent’ whereby a superior court of law declares a certain principle of law to apply to a particular situation. All ‘inferior’ courts within that jurisdiction are then bound by the declaration of law made by the superior court. Courts will also generally bind themselves to a principle of law, at least until that principle can no longer be considered applicable, or just or fair in a given situation.198 Courts can ‘distinguish’ previous judgments by claiming that the circumstances in which an earlier authority was determined do not, or should not, apply to the instant case. In this way, judges continually refine the law and keep it up to date with modern social expectations.199 A decision of the High Court of Australia is the highest judicial pronouncement on a matter of law within Australia, and a decision of that court must be followed by all inferior courts within Australia unless a judgment can somehow be ‘distinguished’. 2.62 The system of precedent depends heavily on accurate reporting of judgments; after all, if decisions of judges are not officially reported, how would anyone know what is the law? There are a number of official (state and federal) and independent commercial law reporting services. In

environmental law, the Local Government and Environmental Reports of Australia (LGERA), published by Thomson Reuters, is the most useful because it contains relevant cases from all jurisdictions. In environmental law, the contributions of the judiciary are initiated through interpretation of statutes, application of principles of judicial review, and use of other common law principles that are relevant to enforcement and dispute resolution.

Interpreting environmental legislation 2.63 Environmental law is mostly legislation, which must be interpreted by the courts if any dispute arises. For example, the Environmental Planning and Assessment [page 59] Act 1979 (NSW) provides that an environmental impact statement (EIS) must accompany all projects that are either designated developments, or ‘activities likely to significantly affect the environment’. The regime provides a list of designated developments, but does not provide any indication as to what are ‘activities likely to significantly affect the environment’. Accordingly, in disputed cases, it has been the judges of the New South Wales Land and Environment Court and the Court of Appeal (NSWLEC) that have been called on to give some practical meaning to the words of this inherently ambiguous phrase.200 Legislation frequently defines the meaning of important words and phrases. But equally, it often does not. Where the legislation itself does not give any indication how words and phrases are to be interpreted, then the courts will generally fall back on familiar common law concepts in order to interpret legislation. Courts will assume, unless there is clear indication to the contrary, that if concepts understood at common law are not altered in any way by a statute, then parliament must have intended that the statute should be interpreted in accordance with principles of common law. So, for example, in interpreting statutory provisions that allow ‘persons aggrieved’ to undertake court challenges to federal decision-making, courts have traditionally interpreted such phrases as meaning persons who have common law interests to protect — in other words, property and economic interests — and who would therefore be ‘aggrieved’ if these recognisable legal interests were to be adversely affected. This has led to persons who could only

display an environmental interest in proceedings being described in one High Court case as persons who had an ‘intellectual or emotional interest’ in the subject matter, but unfortunately not a legal one.201 Only in the last decade or two have courts started to move out of this often inflexible mindset to encompass interests that would not be recognised at common law, such as environmental interests.202 This is an indication that courts really do try to keep up to date with legitimate community expectations. 2.64 In interpreting legislation, judges may be influenced by their own individual dispositions, and personal view of their role as a judge. This explains why judges may be either conservative or reformist in their outlook, and strict or liberal in their interpretations, giving rise to different judicial opinions about what was intended by a particular statutory provision. For example, a number of recent cases appear to have redefined the roles of decision-makers in using principles of sustainable development.203 In one case, Minister for Planning v Walker [2008] NSWCA 224, however, the New South Wales Court of Appeal reversed a Land and Environment Court (LEC) decision because it thought the LEC might have been a bit quick on the uptake of community expectations about climate change issues, though admitted that the situation might be different just two years later. [page 60]

Statutory aids to construction 2.65 Environmental statutes usually provide guidance as to their purpose and intent in a section at the beginning of the statute, referred to generally as an ‘objects clause’. This can assist not only judges, but also members of the public, and indeed the regulators themselves, to understand, in general terms, why the statute has been enacted and what it seeks to achieve. Indeed, legislation throughout Australia generally requires courts to prefer interpretations of statutes that promote the objects of legislation to those that do not. For example, the Interpretation Act 1987 (NSW) s 33 states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Similar provisions apply in other jurisdictions.204 A good example of how the objects of legislation can influence an interpretation of statutory powers and responsibilities under that legislation is Blue Mountains Conservation

Society Inc v Director-General of National Parks and Wildlife (2) (2004) 133 LGERA 406, where the court interpreted the objects of wilderness preservation as being inconsistent with an approval granted by the minister to use a wilderness area for filming a fictional movie. Again, in Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 the Supreme Court of Victoria stressed that, consistently with the objectives of the Planning and Environment Act 1987 (Vic), a provision in a planning scheme that limits participation in land use decision-making should be narrowly construed.205 2.66 Although a grammatical or literal approach will usually be enough to discern the intent of legislation,206 where judges cannot readily discern the ordinary meaning of a provision in a statute, they may enlist the help of external aids, such as ministerial second reading speeches, international conventions. The Interpretation Act 1987 (NSW) s 34 provides: Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

[page 61] (b) to determine the meaning of the provision: (i)

if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

This provision effectively means that judges may only refer to such extrinsic material if a provision is so ambiguous or obscure that discerning the true intent would be assisted by reference to such external aids. If the meaning that would otherwise be attributed to the statutory text — which may require consideration of the context including the general purpose and policy of a provision — is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful that consideration of extrinsic material might be of assistance.207 2.67 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue

(2009) 239 CLR 27 at [47], French CJ explained the process of statutory interpretation as follows: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

While commenting on the use of ministerial second reading speeches to help interpret the purpose of legislation, the High Court warned in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [32] that ‘the words of the Minister must not be substituted for the text of the law’. The ‘clear meaning of the text’ may be obtained, of course, from a dictionary definition. In Minister for the Environment and Heritage v Queensland Conservation Council (2004) 134 LGERA 272, for example, the Federal Court of Appeal, in interpreting the meaning of the word ‘impact’, adopted the ordinary English meaning contained in the Oxford English Dictionary to determine the extent of the minister’s obligations in relation to environmental impacts from the construction of a dam.208 In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 at [2]–[4], Kirby J took a more liberal approach to interpretation, although the rest of the court took a more literalist approach: This ‘literal’ or ‘grammatical’ approach to interpreting statutory texts has gradually given way to an appreciation that legal interpretation is a more complex task. Whilst the starting point in interpretation must still always be the text, it is now appreciated that

[page 62] context and purpose are also vitally important. Further, this approach is not limited to cases where the text appears on its face to be ambiguous. A sub-species of this context and purpose rule is a principle of interpretation that arises where a contested text appears in a statute that has an apparently beneficial or remedial purpose. Where different literal interpretations of such a text appear to be available to the decision-maker, it is valid, and sometimes helpful, to identify the beneficial or remedial purpose discerned. The decision-maker should then endeavour (so far as the text allows) to adopt a construction that advances that purpose in preference to one that would frustrate or diminish the attainment of the apparently intended benefits and reforms. This beneficial or remedial reading principle is by no means new. It simply re-expresses, in the current age of enlarged legislation, a very old canon of interpretation that enjoins decisionmakers to address the ‘mischief’ perceived in the legislation. This is in contrast to upholding an interpretation that results in the legislation misfiring and missing its obviously intended mark.

Similarly, reference to external documents, for example planning

instruments, may be necessary to interpret the real meaning of governmental approvals such as development consents. 209 Definitions and concepts in environmental law are often deliberately cast widely (even vaguely) in order to allow government managers the flexibility to decide what is important and which tools to use to address particular issues. The meaning of such provisions is often referred to the courts for resolution; some examples are set out at 6.9.

Using principles of common law in dispute resolution 2.68 Although the common law has no direct role to play in environmental management (see Chapter 3) principles of common law frequently play a part in enforcement and resolution of disputes. Principles of judicial review — that is, the ability of a court to apply judicial standards for public sector decisionmaking (see Chapter 22) — have arisen through the traditional role of the courts in keeping government accountable and answerable for the powers entrusted to it by the legislature. Civil remedies for breaches of statutory obligations (see Chapter 21) encompass traditional common law remedies such as the injunction. Principles of criminal enforcement (see Chapter 20) have also been developed by the common law.

Merits review 2.69 Statutory interpretation and applying principles of common law are not the only functions of judges in environmental dispute resolution. Unlike ‘ordinary’ courts, the specialist environmental courts and tribunals, discussed at 2.72, also have what is known as a merits review or merits appeal function. Whereas ‘judicial review’ looks at whether an exercise of statutory power by government was exercised lawfully, merits review looks not at the lawfulness of the activity but its ‘merits’; that is, whether the decision is justifiable and acceptable, or even simply ‘good’ or ‘bad’. In exercising merits review, a court or tribunal is not undertaking legal interpretation or enforcement; [page 63] it is reassessing the decision made by the original decision-maker and considering whether to change it. Challenging environmental decisionmaking by judicial and merits review is discussed more fully in Chapter 22.

Matters of policy 2.70 One thing judges must be careful not to do, however, is make policy under the guise of legal interpretation or merits review. Policymaking is the domain of elected representatives of the people, not judges. Questions about the use and maintenance of natural resources, for example, often throw up difficult policy issues about sharing, exploitation and protection, and courts have consistently refused to be drawn into disputes about allocation and management of resources in the guise of judicial review.210 The role of the judge in such a dispute is to interpret what the legislature has decreed and the extent of the powers it has granted to others to make such decisions, not to impose policy solutions of the judge’s own making on the parties to the dispute. In merits appeals, although there is undoubtedly more flexibility given to a court or tribunal to make decisions that may impact more on policy, judges still have to be wary of the policy impacts of the decisions they may make. The determination of merits appeals must still be undertaken in the context and in light of the statutory and policy background, as set out by legislation and in relevant planning documents.211 For example, in one of the first cases to challenge a project because of anticipated greenhouse gas emissions, Greenpeace Australia Ltd v Redbank Power Co Pty Ltd [1994] NSWLEC 178, Pearlman CJ said of coal-fired thermal power stations: … whether they should be prohibited is, of course, a matter of government policy and it is not for the Court to impose such a prohibition. It is for state and national governments to take into account the competing economic and environmental issues raised by the enhanced greenhouse effect and to set policy in the light of those issues.

2.71 More recently, the current Chief Judge of the LEC has reiterated that: … courts have no function directly requiring societal adaptation to climate change or mitigation of its impacts; courts are not legislative rule-makers or general administrative policy-makers. Any role courts may play in relation to climate change will be indirect and as a consequence of exercising functions that are vested in them to adjudicate disputes before them.212

[page 64] In Ilic v City of Adelaide [2010] SASC 139, for example, the South Australian Supreme Court reiterated that a strategic planning instrument is not open to judicial review on grounds that the views of the decision-making authority as to the best way in which to facilitate sustainable development and protection of the environment are objectively mistaken. These are matters of evaluative social judgment that reflect matters of policy not law.

Nevertheless, the increasing recognition in state and local environmental planning and other strategic instruments of principles of sustainability sets a policy scenario that arguably allows courts more freedom to push the boundaries of concepts of sustainability in merits appeals, while recognising the relevant statutory and policy frameworks within which the discussion must take place.213 The only restraint on the court’s ability to canvass such issues is the availability of merits appeals, particularly for objectors to proposals.214

Specialist environmental courts and tribunals 2.72 One welcome feature of modern environmental law is the establishment of specialist environmental courts and tribunals, or divisions of tribunals, to hear disputes.215 The extent of jurisdiction of these bodies, however, varies widely throughout Australia. In some jurisdictions, specialist courts hear all forms of action,216 others only have merits appeals functions,217 while others hear both merits appeals and civil enforcement applications but have no criminal jurisdiction.218 The Land and Environment Court of New South Wales219 is staffed by Supreme Court judges; the Queensland Planning [page 65] and Environment Court and the South Australian Environment, Resources and Development Court (ERD Court)220 by District Court judges. All specialist courts and tribunals are staffed by lawyers but also by specialist commissioners or assessors, who hear merits appeals — experts in disciplines relevant to the issues dealt with by the court, such as planning, engineering and science disciplines. Preston221 has set out 10 advantages of a specialist environmental court: (1) having a comprehensive, integrated jurisdiction to deal with environmental matters by way of merits appeals, judicial review, criminal and civil enforcement; (2) bringing together in the one court, lawyers and non-legal specialists that creates a synergy for exchange of ideas; a ‘centre of excellence’; (3) facilitating inter-disciplinary decision-making by officers of the court with relevant expertise; (4) developing a specialised knowledge of environmental law and appreciation of environmental issues;

(5) enabling a holistic approach to be adopted to resolution of environmental matters; (6) developing innovative practice and procedure that facilitates access to justice; (7) being better positioned to develop innovative remedies and solutions to environmental problems; (8) having more opportunity to develop a coherent and consistent body of precedent and environmental jurisprudence; (9) being better positioned to deal with complex environmental cases; achieving efficiencies and reducing the costs of litigation; and (10) relieving backlog in other courts by removing environmental cases. To these advantages might be added the possibility of the court operating, as does the LEC, as a ‘multi-door courthouse’; that is, a dispute resolution centre offering intake services together with an array of dispute resolution processes under one roof to match the appropriate dispute resolution process to the particular dispute.222 These processes for dispute resolution encompass alternatives to formal court-based hearings and adjudication such as conciliation, mediation and neutral evaluation.223 Specialist courts and tribunals created by legislation are of course dependent upon, and limited by, their statutory jurisdiction. The hearing of a planning matter, for [page 66] example, before a specialist tribunal cannot become a forum for addressing all issues of social or community concern. Such tribunals are not investigative bodies, nor is it their job to set environmental or public health standards.224 On the other hand, restricting the jurisdiction of a specialist tribunal or court to a particular area of resource or environmental activity can result in that body being unable to take a holistic view of a matter brought before it. For example, the jurisdiction of the Queensland Land Court in relation to mining activities encompasses the Mineral Resources Act (MRA) and Environmental Protection Act 1994 (Qld) (EPA). In Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth — Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management (2012) 33 QLCR 79 at [606-607] the Court opined: … jurisdiction under the MRA and the EPA to make recommendations for the project is effectively confined to the ‘mining activities’ or activities authorised under the MRA. As a

consequence of s.235(3) of the MRA, the Court has no jurisdiction or power to make recommendations in relation to activities involving the extraction or diversion of water. These activities will be authorised under another Act, namely, the Water Act.

It appears to me that this is an undesirable dichotomy in the Land Court’s jurisdiction and powers. The effect of the legislation is that two separate assessment and objection processes are established, one under the MRA/EPA and the other under the Water Act. Ultimately the Land Court hears any objections under the Water Act so there is a duplication of process. Further, those objectors who wish to protect their relevant interests under all three statutes are required to participate in two potentially extensive and expensive processes. It is possible, also, that inconsistent decisions may result. This is obviously undesirable for the effective administration of justice and the public interest generally. Dealing with the same constraint in Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 012 at [117] and [121] the Court remarked: In my view, s 235(3) of the MRA must be strictly applied. It applies to circumstances where mining involves the taking and using of water, including the diversion of a watercourse, and perhaps, arguable, the diversion of underground water, but not to the interference with the flow of underground water under s 206(1)(b) of the Water Act. … It would appear nonsensical for this Court, as part of these proceedings, to be permitted to consider the question of, and consequences which flow from, interference with groundwater, but not consider any aspect or consequence which arises from the taking or diversion of groundwater.

Most of the cases referred to in this book have been determined by specialist environmental courts and tribunals.

1.

Where rules of common law conflict with statute law, then statute law will prevail. The reason for this is that in a constitutional democracy, statute law is enacted by a parliament composed of democratically elected members. By contrast, judges are appointed by government, not elected by the people. It is therefore logical that statute law should be regarded as the superior or sovereign form of law. The common law is discussed in Chapter 2.

2.

On the concept of sovereignty, see 4.25.

3.

Lord Scarman, ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974, p 59.

4.

Environmental, or ‘non-market’ values are hard to grasp for traditional economics, upon which rights in property are founded. It has been argued that valuing the benefits and services that nature provides (ecosystem services) must depend on scientific analysis; see Productivity Commission, Staff Working Paper ‘Environmental Policy Analysis: A Guide to Non-Market Valuation’, (2014). Available at .

5.

For further discussion of the action in nuisance, see Chapter 3.

6.

This is a right that exists as an incident of ownership of land, either at common law or, more likely

today, by virtue of statutory conferment. For further discussion on rights in water, see 11.14. 7.

Although it may of course have a legal effect within the statutory scheme of management that creates licensing as an operational tool in regulating the environmental effects of controlled activities. The most common effect of holding, and operating within the terms of, a licence, is that the licence creates a statutory defence to a charge of committing an offence that would otherwise be committed if the licence had not been issued. In Van Son, for example, the licence provided the Forestry Commission with a defence to the statutory offence of committing water pollution under the (repealed) Clean Waters Act 1970 (NSW).

8.

A statute could, of course, declare that the issue of a licence would have the effect of limiting other common law or statutory rights; but since this would effectively give the executive power to modify laws, it is never likely to happen in a democracy that adheres to the doctrine of the separation of powers as a fundamental guiding principle of law making.

9.

See 2.60.

10. See 2.8. 11. Bropho v Western Australia [1990] HCA 24. 12. See 5.46 and following. 13. See generally Rogers, ‘The Emerging Concept of Radical Title in Australia: Implications for Environmental Management’ (1995) 12 EPLJ 183. 14. See Fejo v Northern Territory of Australia (1998) 156 ALR 721. 15. See Bodney v Westralia Airports Corporation Pty Ltd (2000) 111 LGERA 268. 16. See Wik Peoples v Queensland (1996) 187 CLR 1. 17. See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58. 18. A selection of the voluminous commentary on this case includes: Nettheim (1993) 16 UNSWLJ 97; Crommelin (1993) 67 Law Inst J 809; Lumb (1993) 14 Qld Lawyer 15. 19. Declared constitutionally valid in Western Australia v Commonwealth (1995) 183 CLR 373. Consequently, legislation enacted by the Parliament of Western Australia that conferred rights that were less secure than ordinary communal or native title rights, was inconsistent with the Racial Discrimination Act 1975 (Cth) and therefore subject to the Constitution s 109: see Chapter 5. 20. The Native Title Act 1993 (Cth) s 24MD(2)(b) provides for the extinguishment of native title on just terms, so long as conditions are met that clearly seek to avoid racial discrimination: see Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20. 21. See Strelein, ‘Indigenous People and Protected Landscapes in Western Australia’ (1993) 10 EPLJ 380; Selnes, ‘Aboriginal Land Rights in Queensland and their Impact on Natural Resources’ (1993) 10 EPLJ 423; Lane, Brown and Chase, ‘Land and Resource Planning under Native Title: Towards an Initial Model’ (1997) 14 EPLJ 249; Tehan, ‘Indigenous Peoples, Access to Land and Negotiated Agreements: Experiences and Post-Mabo Possibilities for Environmental Management’ (1997) 14 EPLJ 114; Craig, ‘Native Title and Environmental Planning: Indigenous Land Use Agreements’ (2000) 17 EPLJ 440; Dorsett and Godden, ‘The Interaction of Planning Law and Native Title’ (2000) 17 EPLJ 374. 22. Mason v Tritton (1994) 34 NSWLR 572; Commonwealth v Yarmirr [2001] HCA 56; 184 AJR 113. 23. For example, Mason v Tritton (1994) 34 NSWLR 572. 24. See also Neowarra v Western Australia [2003] FCA 1402. See also Dietman v Karpany [2012] SASCFC 53, in which a majority of the court held that native title rights to fish had been effectively extinguished by a statutory scheme to prevent the taking of undersized fish. 25. See, for example, Sampi v Western Australia [2005] FCA 777 at [1146]–[1147].

26. And see Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea Part One — The Position before Yarmirr’ (2011) 35(2) MULR 523; ‘Part Two — Yarmirr and Beyond’ (2011) 35(3) MULR 1099. 27. See also English, ‘Terrestrial Hunting and Gathering by Aboriginal People in New South Wales: An Assessment of Law and Policy’ (1997) 14 EPLJ 437; Meyers, ‘Native Title Rights in Natural Resources: A Comparative Perspective of Common Law Jurisprudence’ (2002) 19 EPLJ 245. 28. In Walden v Hensler (1987) 163 CLR 561, the argument that an offence against the licensing provisions of this Act amounted to an offence against ‘property’ had also been rejected by the High Court. 29. The Native Title Act s 211 relevantly provides for preservation of certain native title rights and interests. 30. Nature Conservation Act 1992 (Qld) ss 61 and 62. 31. Nature Conservation Act 1992 (Qld) ss 83–87. 32. Karpany v Dietman [2013] HCA 47 at [2]. 33. Note, however, the dissenting judgment of Blue J that applied Yanner v Eaton. 34. See 14.64. 35. For further information about Native Title determinations see . 36. Extinguishment, by contrast to restriction, of a native title right may raise rights to compensation: see note 20 above. 37. See also Sneddon, ‘Aboriginal objections to development and mining activities on the grounds of adverse impacts to sites of spiritual significance: Australian judicial and quasi-judicial responses’ (2012) 29 EPLJ 217. 38. See, for example, Baird and Lenehan, ‘The Process in NSW Leading to Joint Management of Aboriginal Owned Land and the Register of Aboriginal Owners’ (2002) 19 EPLJ 277; Power, ‘Joint Management at Uluru-Kata Tjuta National Park’ (2002) 19 EPLJ 284; Godden, ‘Indigenous Heritage and the Environment: “Legal Categories are Only One Way of Imagining the Real”’ (2002) 19 EPLJ 258; Havemann et al, ‘Traditional Use of Marine Resources Agreements and Dugong Hunting in the Great Barrier Reef World Heritage Area’ (2005) 22 EPLJ 258. 39. For further information about ILUAs see . 40. For detailed commentary on this case see Labowitch, ‘Integration and Reconciliation of Social, Legal and Environmental Interests under Indigenous Land Rights Sea Claims’ (2010) 27 EPLJ 189. 41. See . 42. See Shepherd and Martin, ‘The Multiple Meanings and Practical Problems with Making a Duty of Care Work for Stewardship in Agriculture’ (2009) 6 Macquarie Journal of International and Comparative Environmental Law 191. 43. Native Vegetation Act 1991 (SA) ss 24 and 25. On heritage agreements, see 7.46 and following. 44. See further 13.24. 45. See Commonwealth v WMC Resources Ltd [1998] HCA 8. 46. See, for example, Offshore Minerals Act 2000 (SA) s 196; Natural Resources Management Act 2004 (SA) s 21; Fisheries Act 995 (Vic) Pt 10; Fisheries Management Act 1994 (NSW) s 34O; Mining Act 1992 (NSW) s 127; Fisheries Adjustment Schemes Act 1987 (WA) s 14G. 47. For example, Sustainable Forests (Timber) Act 2004 (Vic) s 27.

48. ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 EPLJ 161 at 164. 49. For example, Binning and Young, ‘Motivating People: Using Management Agreements to Conserve Remnant Vegetation’, Report prepared for the National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Research Report One, Canberra, 1997; Hajkowicz and Young, ‘An Economic Analysis of Cost Sharing Assessment for Dryland Salinity Management: A Case Study of the Lower Eyre Peninsula in South Australia’, Report to the South Australian Department of Primary Industry and Resources, CSIRO Land and Water, South Australia, 2000. 50. See Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 51. Bowers, Incentives and Mechanisms for Conserving Biodiversity: Observations and Issues, CSIRO Division of Wildlife and Ecology, Canberra, 1994, p 13. 52. ‘Impacts of Native Vegetation and Biodiversity Regulations’, Report No 29, Australian Government, 2004. 53. See Farrier, ‘Regulation of Rural Land Use: Coercion or Consensus?’ (1990–91) 2 Current Issues in Criminal Justice 95. And on property agreements, see 7.46 and following. 54. At [63] and [64]. 55. And see Bone v Mothershaw [2003] 2 Qd R 600 (no right to be compensated for native vegetation clearance restrictions imposed by a local authority); applied in Scriven v Sargent [2014] QCA 133. 56. See Gunningham et al, ‘Reimbursing the Future: An Evaluation of Motivational, Voluntary, Pricebased, Property Right and Regulatory Incentives for the Conservation of Biodiversity’, Biodiversity Series Paper No 9, Department of the Environment, Sport and Territories, Canberra, 1996; Gunningham and Grabosky, Smart Regulation: Designing Environmental Policy, Oxford University Press, Oxford, 1998, Ch 5; see also Curran, ‘The Conservation of Biological Diversity on Private Property in NSW’ (2000) 17 EPLJ 34. And on market-based instruments, see 7.40 and following. 57. ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 EPLJ 161 at 163. 58. Although in Western Australia, the curious concept of injurious affection, that is, diminution of land values as a result of planning decisions, in this case a heritage scheme, does seem to survive: see Cornell v Town of East Fremantle (2003) 131 LGERA 20. 59. Nature Conservation Act 2002 (Tas) ss 41 and 41A. 60. Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151. For further discussion about the nature of property rights, see Chapter 3. 61. See also Marine Parks Act 2007 (SA) s 21; Fisheries Act 1995 (Vic) Pt 10. 62. For example, Fisheries Management Act 1991 (Cth) ss 22(3)(e) (fishing ‘rights’) and 32(5)(e) (‘licence’); Water Management Act 2000 (NSW) s 87. 63. See, for example, Water Act 2007 (Cth) Pt 2 Div 4; Water Management Act 2000 (NSW) ss 79, 87, 87A and 87AA. 64. See 7.46. 65. . 66. Coco v R (1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron and McHugh JJ at 437. 67. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; Simes v Minister for Environment and Conservation [2004] SASC 84.

68. Commonwealth of Australia Constitution Act s 51(xxxi). 69. See, for example, Land Acquisition (Just Terms Compensation) Act 1991 (NSW); Land Acquisition and Compensation Act 1986 (Vic); Acquisition of Land Act 1967 (Qld); Land Acquisition Act 1969 (SA); Land Acquisition Act 1993 (Tas). 70. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 (compensation for acquisitions of coal capped; no right to additional compensation). 71. Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; Bone v Mothershaw [2003] 2 Qd R 600. 72. See Mckenzie, ‘Water Rights in NSW: Properly Property?’ (2009) 31(3) Sydney Law Review 443. 73. And in relation to the Commonwealth Constitution s 51(xxxi), see 5.32 and following. 74. This case has been subsequently followed in Arnold v Minister Administering Water Management Act 2000 [2010] HCA 3. For a full analysis of the ICM case see Fisher, ‘Water law, the High Court and techniques of judicial reasoning’ (2010) 27 EPLJ 85. 75. See per Gillard J in Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51 at 56; Springhall v Kirner [1988] VR 159. 76. South Australian River Fishery Association v State of South Australia [2003] SASC 174; (2003) 126 LGERA 122 (SASCFC). 77. Though voluntary initiatives, even backed by financial incentives, rarely deliver successful outcomes in the longer term; see Gunningham et al, Smart Regulation: Designing Environmental Policy, OUP, Oxford, 1998. On market-based instruments, see further 7.40 and following. 78. See Preston ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182. 79. Preston, ‘The Adequacy of the Law in Satisfying Society’s Expectations for Major Projects’ (2015) 32 EPLJ 182 at p 192. And see Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48 at [485–491]. See also Productivity Commission, Staff Working Paper ‘Environmental Policy Analysis: A Guide to Non-Market Valuation’, (2014). Available at . 80. See Preston ‘Economic Valuation of the Environment’ (2015) 32 EPLJ 301. 81. Rachel Carson, Silent Spring, Houghton Mifflin Co, Boston, 1962, republished 2002. 82. Examples would be research into greenhouse gases or the causes of incremental loss of coral on the Great Barrier Reef. 83. For example, the new New South Wales Natural Resources Commission is required by law to recommend statewide targets and standards for natural resources management and undertake audits of the effectiveness of the implementation of catchment action plans in achieving compliance with those standards and targets: Natural Resources Commission Act 2003 (NSW) s 13. 84. Criminal enforcement is discussed in Chapter 20. Since breaches of environmental laws can often only be established by scientific evidence, the role of science is vital to successful criminal prosecution: see, for example, Jenkins, ‘Experience with Environmental Forensic Science in Environmental Protection Act Enforcement Proceedings in Western Australia’ (2001) 18 EPLJ 469. 85. Macrory, ‘Standards, Legitimacy and the Law — The New Environmental Agenda’ (2001) 18 EPLJ 242, 244. 86. See Chapters 21–22. 87. See 22.6. 88. See Chapter 20.

89. See further 22.6. 90. See 8.58 and following. 91. Such a status will depend either on a scientific determination or the provision of scientific advice: see Chapter 13. 92. See Chapter 14. 93. See Chapter 11. 94. See Chapter 15. 95. . 96. . 97. . 98. . 99. . 100. See . 101. See . 102. For example, in the face of federal government unwillingness to enforce prohibitions on whaling embodied in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), the Humane Society International undertook its own enforcement action: see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; FCA 36; and for further commentary, see 4.11. 103. And on the Tasmanian Dam case, see 5.4 and following. 104. . 105. ‘Strategic Planning’. 106. Maritime Services Board of New South Wales v Citizens Airport Environment Association Inc (NSW Court of Appeal, 23 December 1992, unreported). 107. South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008; Forestry Tasmania v Brown [2007] FCAFC 186. 108. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8. 109. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59. 110. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114. 111. Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346. 112. See Chapter 18. 113. See further Chapter 19. 114. See . 115. See 19.29. 116. Productivity Commission ‘Access to Justice Arrangements’ 2014. Available at . 117. See, for example, Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd [2013] NSWLEC 188.

118. See Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 s 3. 119. Protest is not a ‘terrorist act’ within the meaning of the Commonwealth Criminal Code Pt 5.3, so long as it is not intended to cause serious physical harm or death to a person, endanger life, or create a serious risk to the health or safety of the public or a section of the public. It remains to be seen how this latter provision in particular might be interpreted. 120. In Richter v Risby [1987] Tas R 36, a protester who was forcibly removed from a protest against logging brought charges of assault against the directors of the company involved. In McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289, protesters who were prevented from leaving the site of a forestry protest by loggers subsequently sued in public nuisance and false imprisonment. 121. Such actions are often described as SLAPP suits: strategic litigation against public participation. See Walters, Slapping on the Writs: Defamation, Developers and Community Activism, UNSW Press, Sydney, 2003; Walters, ‘Let the People Speak’ (2005) 16 Current Issues in Criminal Justice 340; White, ‘Stifling Environmental Dissent: On SLAPPs and Gunns’ (2005) 30(6) Alternative Law Journal 268; Preston, ‘Participation from the Deep Freeze: “Chilling” by SLAPP Suits’ (2014) 31 EPLJ 47. 122. Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. 123. Australian Wool Innovation Ltd v Newkirk (No 3) [2005] FCA 1308. 124. Gunns Ltd v Marr (No 2) [2006] VSC 329; Gunns Ltd v Marr (No 3) [2006] VSC 386. 125. Gunns Ltd v Marr [2008] VSC 464. 126. See . 127. Workplace (Protection from Protesters) Act 2014 (Tas) ss 6 and 17. 128. See . 129. See the Australian Local Government Association website at . 130. Local government responsibilities and interests are specifically referred to in cl 2.4: see Turnbull, ‘Local Government and the Inter Governmental Agreement on the Environment — How Does Local Government Implement the Grand Vision?’ (1992) 2 AELN 21. 131. For example, Local Government Act 1993 (NSW) ss 7 and 89. 132. TASQUE, ‘The Role of Local Government in Environmental Management’, University of Tasmania, March 1992. 133. See Mitchell and Brown, ‘Local Government: A Social Resource for Environmental Control’ (1991) 8 EPLJ 41; Berry, ‘Local Government Perspective on Managing Climate Change’ (1994) 1 AELN 33. 134. See . 135. For some indications of expenditure by local governments on environmental management, see Environmental Expenditure, Local Government, Australia 2002–2003, ABS, Canberra, 2004. The data does not appear to have been updated. See also Meares and Bates, ‘Options for Funding: Environmental Compliance Programs in NSW’ (2010) 16 LGLJ 32. 136. See generally Brandl and Bungert, ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’ (1992) 16 Harvard Environmental Law Review 1; Thornton and Tromans, ‘Human Rights and Environmental Wrongs’ (1999) Journal of Environmental Law Vol II, No 1 at 3. 137. Constitution s 26; and see Glazewski, ‘The Environment, Human Rights and a New South African Constitution’ (1991) 7 SAJHR 167 and ‘The Environment and the New Interim Constitution’ (1994) 1 SAJELP 1; Winstanley, ‘Entrenching Environmental Protection in the New Constitution’ (1995) 2 SAJELP 85. See also Constitution of the People’s Republic of China s 26; and Wang Xi and

Blomquist, ‘The Developing Environmental Law and Policy of the People’s Republic of China: An Introduction and Appraisal’ (1992) 5 Georgetown International Environmental Law Review 25. 138. Constitution of the Philippines 1987 art II s 16. 139. (1994) 33 ILM 173. 140. See generally Anderson, ‘Environmental Protection in India’ in Boyle and Anderson (eds), Human Rights Approaches to Environmental Protection, Clarendon, Oxford, 1996. 141. Vellore Citizens’ Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647; MC Metha v Kamal Nath (1997) 1 SCC 388. For further discussion on principles of sustainable development, see Chapter 8. 142. Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212. 143. Article 13 of the Convention stipulates that everyone whose rights and freedoms as set out in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 144. Lopez Ostra v Spain (1994) 20 EHRR 277 (not acceptable to reject request for information about effects of pollution on basis that the State did not have relevant information). 145. Guerra v Italy (1998) 26 EHRR 357. 146. Hatton v UK (2003) 37 EHRR 28 (night flights to and from Heathrow; no violation of art 8 but a violation of art 13). 147. Moreno Gómez v Spain ECHR 4143/02 (failure to deal with vandalism and noise leading to health problems; breach of art 8). 148. Standing under the Human Rights Act depends on the applicant being a ‘victim’, which effectively blocks ‘representative’ actions: see, for example, Adams v Advocate General for Scotland [2002] UKHRR 1189 (hunting association challenging ban on fox hunting denied standing; not all members affected); R v Mayor of London ex parte Westminster City Council [2002] EWHC 2440 (challenge to London congestion charge; local council not a ‘victim’). 149. Dennis v Ministry of Defence [2003] Env LR 34 (award of £950,000 in compensation). In this case, a claim in nuisance was blocked by legislation. However, in McKenna v British Aluminium [2002] Env LR 30, the British High Court postulated that the rules about who could bring a private law action in nuisance might need to be modified to accord with human rights protection. 150. Human Rights Act 2004 (ACT); Human Rights Commission Act 2005 (ACT). 151. Charter of Human Rights and Responsibilities Act 2006 (Vic). 152. See further Chapter 22. 153. See the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The former Secretary-General to the United Nations, Kofi Annan, has remarked that the Aarhus Convention ‘is the most ambitious venture in the area of environmental democracy so far taken under the auspices of the United Nations’: see further . See also EC Directive 2003/4 Access to Environmental Information (provides basic rights of access to environmental information held by public authorities in member states); EC Proposal for a Directive on Access to Justice in Environmental Matters (2003). 154. See Dwyer and Preston, ‘Striving for Best Practice in Environmental Governance and Justice: Reporting on the Inaugural Environmental Democracy Index for Australia’ (2015) 32 EPLJ 202. 155. See . 156. Stone, ‘Should Trees Have Standing? — Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450.

157. (1972) 405 US 727. 158. See Chapter 19. 159. See, for example, Smith, ‘What Price a Wedgetail Eagle? An Examination of Penalties Imposed for Harming Protected Species’ (2004) 21 EPLJ 445; Thiriet, ‘Out of the Too Hard Basket — Traditional Hunting and Animal Welfare’ (2007) 24 EPLJ 59; ‘In the Spotlight — the Welfare of Introduced Wild Animals in Australia’ (2007) 24 EPLJ 417 and responses at (2008) 25 EPLJ 157 and 160. 160. See Akers and Bagaric, ‘No Absence of Malice Towards the Gallus’ (2001) 18 EPLJ 505. 161. See further 4.27. 162. . 163. See Macrory, ‘Standards, Legitimacy and the Law — The New Environmental Agenda’ (2001) 18 EPLJ 242. 164. UK Royal Commission on Environmental Pollution, ‘Setting Environmental Standards’, Cm 4053 (1998) at 5.48. 165. For example, Non-Indigenous Animals Act 1987 (NSW). 166. See Chapter 14. 167. See Chapter 8. 168. See, for example, Grant and Papadakis, ‘Transforming Environmental Governance in a “Laggard” State’ (2004) 21 EPLJ 144. 169. See 17.19 and following. 170. See 7.36 and following. 171. See 18.74 and following. 172. ‘Internalising Ecocentrism in Environmental Law’ (2011) available on the LEC website at . See also Williams, ‘Wild Law in Australia: Practice and Possibilities’ (2013) 30 EPLJ 259. 173. Bonyhady, ‘A Usable Past: The Public Trust in Australia’ (1995) 12 EPLJ 329. 174. Sax, Defending the Environment: A Strategy for Citizen Action, Vintage Books, New York, 1972, p 165; see also Sax, ‘Liberating the Public Trust Doctrine from its Historical Shackles’ (1980) 14 U Cal LR 185. 175. The issue of standing is discussed more fully in Chapter 19. 176. ‘Divining Common Law Standards for Environmental Protection’ (1994) 11 EPLJ 289. 177. Hornsby Council v Roads and Traffic Authority (NSW) (1997) NSWCA 40577/94, cited in Bonyhady, ‘An Australian Public Trust’ in Dovers (ed), Environmental History and Policy: Still Settling Australia, Oxford University Press, Melbourne, 2000, pp 258, 271. 178. See Preston, ‘The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific’ (2005) 9 APJEL 109, 203. 179. Per Bignold J in Environment Protection Authority v Softwood Holdings Ltd (2000) 110 LGERA 87; see also Environment Protection Authority v Norco Co-operative Ltd (2000) 108 LGERA 137; Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; Environment Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200. 180. See Chapter 16. 181. Product Stewardship Act 2011 (Cth).

182. For further discussion on property agreements, see 7.46; and on the use of administrative orders, see 20.4. 183. For example, Natural Resources Management Act 2004 (SA) s 182. 184. See 7.46. 185. See Chapter 13. 186. See Chapter 18. 187. See, in particular, Preston, ‘The Environment and Its Influence on the Law’ (2008) 82 ALJ 180; ‘Administrative Law in an Environmental Context: An Update’ (2007) 15 AJ Admin L 11. 188. See 9.35 and following. 189. See, for example, Environmental Protection Act 1994 (Qld) s 548; Protection of the Environment Operations Act 1997 (NSW) s 323 (‘regulations may adopt any document (including for example a code of practice) as in force from time to time’). 190. See Environment East Gippsland Inc v VicForests [2010] VSC 335; MyEnvironment Inc v VicForests [2012] VSC 91; [2013] VSCA 356. 191. See, for example, DeAngelis v Pepping [2014] NSWLEC 108 (guide to preparing local environmental plans issued by NSW Department of Planning held to be advisory only). 192. Guidelines, like regulations, cannot be used to qualify definitions contained in an Act unless there is a provision in the Act enabling that to happen: see Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162. 193. . 194. Donohue v Australian Fisheries Management Authority [2000] FCA 901 (order prohibiting longline fishing). 195. Re Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351 (fisheries management plan); Currareva Partnership v Welford [2000] QSC 098 (water resource plan). 196. See, for example, Weeroona Holdings Pty Ltd v Environment Protection Authority [2013] SAERDC 41 (contaminated site remediation order). 197. For example, abolition of common law riparian rights to water; see further 3.14. 198. An intermediate appellate court (state court of appeal) is entitled to depart from its earlier authority when that authority is ‘plainly’ or ‘clearly’ wrong: see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146. 199. Such steps can be taken only when it can be seen that the new rule or principle has been derived logically or analogically from other legal principles, rules and institutions; see Breen v Williams [1996] HCA 57 at [47]. 200. See 11.24. 201. Australian Conservation Foundation v Commonwealth [1980] HCA 53; and see 19.2 and following. 202. See Chapter 19. 203. See further Chapter 8. 204. See, for example, Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1915 (SA) s 22. And see Perry v Attorney-General (NT) [2014] NTSC 17. 205. See also City of Marion v Paior [2013] SASCFC 77 (purpose of legislation to provide for public participation in planning process relevant to interpreting the standing of the applicant). 206. Save Our Street Inc v Settree (2006) 149 LGERA 30.

207. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; 239 CLR 27 at [52]. 208. The legislature subsequently redefined the term ‘impact’: see Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 527E. See also Bechara v Plan Urban Services Ltd (2006) 149 LGERA 41 (‘minimal’ means ‘very small’ or ‘negligible’). 209. See Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103. 210. For example, Outback Leather Pty Ltd v Director-General, National Parks and Wildlife Service (1996) 92 LGERA 319 (kangaroo culling); Haggarty & Morrison Pty Ltd v New South Wales (1995) 98 LGERA 226 (cessation of logging and creation of a national park); Queensland v Commonwealth (1988) 62 ALJR 143 (not for the court to question the bona fides of legislative acceptance of world heritage values of Queensland rainforests); Dubler Group v Ku-ring-gai Municipal Council (2004) 133 LGERA 438 (minister’s opinion on matters of planning significance); Ilic v City of Adelaide [2010] SASC 139 (minister’s opinion on local heritage values). 211. See, for example, Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91. 212. Preston, ‘Climate Change Litigation in the Land and Environment Court of New South Wales and Other Courts’, 20 August 2009; available on the LEC website at . 213. See, for example, Hub Action Group Inc v Minister for Planning and Orange City Council [2008] NSWLEC 116 (waste minimisation and sustainability of prime pasture and cropping land); Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 (renewable energy). 214. See 22.2 and following. 215. The relevant bodies are: the Commonwealth Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth)); in the Australian Capital Territory, the Civil and Administrative Tribunal (Civil and Administrative Tribunal Act 2008 (ACT)); in New South Wales, the Land and Environment Court (Land and Environment Court Act 1979 (NSW)); and see also Stein J, ‘The Role of the New South Wales Land and Environment Court in the Emergence of Public Interest Environmental Law’ (1996) 13 EPLJ 179; Stewart, ‘Effects of the Land and Environment Court’ (1999) 16 EPLJ 482; Northern Territory, the Northern Territory Civil and Administrative Tribunal (Northern Territory Civil and Administrative Tribunal Act 2014 (NT); Queensland, the Planning and Environment Court (Sustainable Planning Act 2009 (Qld) Ch 7 Pt 1); South Australia, the Environment Resources and Development Court (Environment, Resources and Development Court Act 1993 (SA)); Tasmania, the Resource Management and Planning Appeal Tribunal (Resource Management and Planning Tribunal Act 1993 (Tas)); Victoria, the VCAT (Civil and Administrative Tribunal Act 1998 (Vic)); and in Western Australia, the State Administrative Tribunal (State Administrative Tribunal Act 2004 (WA)). 216. For example, the New South Wales Land and Environment Court (Land and Environment Court Act 1979 (NSW)). 217. For example, the Commonwealth Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth)). 218. For example, the Tasmanian Resource Management and Planning Appeal Tribunal (Resource Management and Planning Appeal Tribunal Act 1993 (Tas)). 219. . 220. . 221. ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385. See also Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales and 12 Benefits of Judicial Specialisation in Environmental Law’ (2011), available on the LEC website at . 222. See Preston, ‘The Land and Environment Court of New South Wales: Moving Towards a MultiDoor Courthouse’ (2008) 19 ADRJ 72 and 144. 223. Preston, ‘Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales’ (2008) 25 EPLJ 385 at 391–2; and see further 20.8. 224. See Mason v Greater Geelong City Council [2013] VCAT 2057.

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Chapter 3 Environment Protection and the Common Law Introduction 3.1 Environmental law is a product of legislation, not a creature of common law. So why is the common law important to a book about environmental law? There are five reasons. First, common law rules survive unless amended by statute. To be effective, environmental legislation has to recognise and, if necessary, overcome common law rules. In order to understand what legislation is trying to achieve — and why — it is also necessary to understand those aspects of the common law that the legislation is seeking to overcome; or, as lawyers might say, the ‘mischief’ that the legislation is seeking to remedy. Neither can the operation of legislation be properly understood without appreciating the common law rules that survive and underpin, or are relevant to, the operation of the statutory scheme. Second, principles of common law underpin and protect fundamental social structures. Environmental policy, and therefore environmental law, has to work within a framework that recognises and respects fundamental principles of capitalist democracy, such as respect for private property and individual rights and freedoms. Third, common law remedies are important. They may be used by private landowners to protect their own environments from damage and interference. They may also be used to protect individual rights against bureaucratic excesses of power, and as a response to breaches of environmental legislation. Fourth, interpretation of statutes may be dependent on concepts developed at common law. Where statutes do not explain terms used in the legislation, then courts may turn to principles of common law to interpret them. Lastly, where persons, their property or their businesses are affected by environmental degradation caused by someone else, then the only way to gain compensation for such harm is to take a common law action seeking damages.

These recurrent themes surface in all chapters of this book.

The importance of property 3.2 As noted in Chapter 2, Australia inherited a common law system of governance. The purpose of the common law has always been to reflect and protect the fundamental nature of our society — a capitalist parliamentary democracy. Recognition of rights over ‘property’ is fundamental to this capitalist social structure; indeed, the legal fiction that was exposed by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1, that Australia was terra nullius at the time of invasion because it had [page 68] no civilised or recognisable form of government, was based largely on an absence in Aboriginal communities of any formal or delineated recognition of rights over property.1 The common law therefore sees the environment more as an ‘ecosystem’ of property entitlements to land, among which the concept of ‘ownership’ is paramount. Land is owned either by private individuals or organisations or by the Crown.2 The owner can deal with that property in any way the landowner chooses, and if the landowner chooses not to look after the ‘environment’ then that is the landowner’s right. Only where a landowner’s activities on, or neglect of, the land begin to impinge on neighbouring landowners would the common law take any notice of what was happening to the environment, and only then to protect neighbouring property rights, not to protect the environment per se. At common law the proprietary rights of a landowner extend cujus est solum, ejus est usque ad coelum et ad inferos — up to the sky and down to the centre of the earth,3 though the courts have since placed limitations on this doctrine that restrict the exercise of such rights to reasonable limits.4 Those who have the best possessory right to land (and the best of all, of course, is ownership) can also control access to, and exploitation and management of, resources on that land. The only restriction on the exercise of such rights at common law is the presence of neighbouring landowners, who have similar rights to use and enjoy their property without unreasonable interference.5 Environmental restrictions imposed by legislation, of course, cut across these common law rights; for example, depriving landowners of ownership of minerals beneath the surface, and restricting their ability to conduct activities, such as clearance of native vegetation, on their land that would have been

unimpeded at common law. Centuries of legal and cultural tradition that support the pre-eminence of the rights of private landowners cannot, however, be easily overcome, and consequently such historic and traditional rights still have a considerable influence on the development of environmental policy and therefore of environmental law in the present day. 3.3 The pre-eminence of property in the common law scheme begs the question, of course, ‘what is property?’.6 Property can be ‘real’ (land) or ‘personal’ (movable or intellectual property (IP)). Environmental law is more influenced by rights attached to land and natural resources. Basically, property in land is recognised by the rights it confers: rights to enjoy, use, protect and transfer land and its natural resources; exclude or restrict access to that land; and grant access rights that are either proprietary in nature, for example, leases and profits à prendre (rights to take resources), or non[page 69] proprietary, that is, of a personal nature, such as licences or ‘permissive’ rights.7 These property rights of the private landowner are still the backbone of our social structure, because they provide a measure of security8 in a capitalist system, although the extent to which they can be exercised without due regard to the environmental and social consequences has been gradually whittled away by statutory intervention seeking a balance between the right of the private landowner to develop or use land, and protection of the wider public interest in the maintenance of environmental quality.9 3.4 Rights to develop land and to exploit the natural resources of land are now generally controlled by legislation,10 but the right to decide how to manage the land has, until recently, been largely unfettered. Yet the management of land is crucial to its ability to sustain long-term productive activity as well as protect natural ecosystems. For example, a farm is used for agricultural and pastoral purposes, but the way in which it is used will have a significant effect not only on productivity but also on the environment. The clearing of native vegetation, use of chemical fertilisers, application of pesticides and herbicides, and failure to attend to erosion and salinity problems may all have a marked environmental effect on that property, on watercourses that flow through it, and on the biodiversity that inhabits it, as well as on neighbouring land. Yet the right of the private landowner to effect such significant environmental changes is regarded as sacrosanct at common law — at least until the rights of use and enjoyment of a neighbouring landowner are adversely affected. As Lord Scarman once remarked,11 at common law, ‘a bad landowner cannot be prevented from doing irreparable

harm to his own and surrounding environments, and since that environment happens to be part and parcel of that of the rest of us, we ought all to be concerned with its wise and sensitive management’. 3.5 Inevitably, the evolving necessity to manage natural resources in a more sustainable manner is leading to more and greater restrictions on the ability of private landowners to do exactly as they wish on their own land. However, this increasing regulation is not of course being led by the common law; it is the reaction of government policy and legislation which realises that, left to common law devices for managing natural resources, sustainable outcomes simply cannot be progressed, let alone achieved. In order to understand environmental legislation, therefore, it is essential to understand the common law, and the ‘mischief’ in the common law that [page 70] legislation is trying to overcome. As Lord Goff acknowledged in Cambridge Water Co v Eastern Counties Leather Co [1994] 1 All ER 53 at 76: … public bodies … are taking significant steps towards the establishment of legislation which will promote the protection of the environment … given that so much well informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end and indeed it may well be undesirable that they should do so.

But the point, of course, is that this ‘carefully structured legislation’ will reflect the necessity to integrate environmental policy and environmental law within an existing social structure that relies heavily on concepts of property as the bedrock of economic activity. The success of environmental legislation will be measured, therefore, largely by its ability to effectively respond to, and deal with, the cultural and political pressures exerted by the actual or perceived rights that attach to land and other natural resources.

Ownership and management of natural resources 3.6 At common law, the ownership of land generally carries with it the right to exploit the natural resources found on that land. The common law recognised, however, that some natural resources could not, or should not, be owned by anyone. While acknowledging that an owner of land should be allowed to also own static natural resources found on that land, such as vegetation, forests and minerals, the common law would not extend such rights to movable resources such as air, water12 fish and other wildlife13 — although the owner had a right to take such resources into possession, and,

indeed, by dint of the ability to control access to that land as a right inherent in the concept of ownership, the best access to those resources. The reason why only static natural resources were capable of being owned by a landholder lies in the practical impossibilities inherent in ‘owning’ resources that, by their very nature, are going to move and pass naturally from one property to another. For example, if a landowner were to own the wildlife found at any particular point of time on the land, and that wildlife then passed onto an adjoining property, imagine the arguments that might ensue between neighbours, resulting in many possible acts of trespass onto land to regain ‘lost’ resources. The impossibility of ‘owning’ air or flowing water becomes even more obvious, although of course both the common law and legislation have invented ways to manage access to water resources.14 Nevertheless, because the landowner can, as a right of ownership, exclude others from the land, the owner is in the best position to take such resources into possession. Once they are possessed, a person can then enforce this right of possession against the whole world because there is no one else with a better right of possession; that is, ownership of the resource. The common law, however, imposed no regime of management on private landowners: a landowner was free to exploit and degrade the [page 71] resources on the land so long as the use and enjoyment of neighbouring property was not unreasonably affected.15 The common law also denied private ownership of certain resources because it was in the public interest to do so:16 for example, the seashore,17 and the sea for navigation and fisheries.18 Once again, however, the common law imposed no regime of management on the use of such resources. Any of these resources could lawfully be used by anyone, even to the extent of depleting or destroying the nature or values of the asset — the so-called ‘tragedy of the commons’.19 3.7 The common law principle of unrestricted rights of access to natural resources, however, clearly could not survive the pressures of both recreational and commercial exploitation. In the face of heightened public and governmental concern about the continuing depletion and degradation of natural resources, made possible by the technological advances introduced by the Industrial Revolution, governments everywhere were ultimately forced to step in to modify or overrule common law rights by legislation to ensure the sustainability of those resources.20 As Brennan J remarked in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 329, 330:

… the public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute …

And because the common law right of fishing in the sea and in tidal navigable rivers is a public not a proprietary right, it is freely amenable to abrogation or regulation by legislation. 3.8 Government has progressively moved, therefore, to vest control of natural resources in the Crown,21 in order to facilitate ease of management. It is common now for water, mineral resources, fisheries and other biodiversity to be vested in and controlled by the Crown.22 Allocation of natural resources to commercial and individual interests [page 72] under these statutory regimes bears all the hallmarks of what would have been the creation of a common law profit à prendre if allocated by a private landowner.23 As the government on behalf of the Crown now controls management of these public resources, the public only has common law rights to access natural resources to the extent that government has not abrogated them.24 This allows government instrumentalities to impose management regimes that control allocation of resources, set out the conditions under which utilisation will occur, and manage environmental impacts. The objects of legislation under which these powers are exercised frequently state that the sustainability of the resource is a key feature of decision-making.25

Creation of proprietary and permissive interests 3.9 A landowner can create a variety of subordinate legal interests that allow others to enjoy access to, or possession of, land and natural resources. These interests may have the security of being a form of property (proprietary interests), or they may simply be permissive in nature. Proprietary interests include leases, easements, covenants and profits à prendre. A lease gives possession of the land to the lessee. It is commonly used in legislation to confer rights to extract minerals,26 or to confer exclusive possession to land for grazing or other pastoral or agricultural purposes.27 A covenant is a burden on one parcel of land taken for the benefit of neighbouring land. It has commonly been employed as a device in subdivisions of land to protect vendors against unsuitable uses by purchasers

of adjacent land.28 Unlike a contract, which is a personal legally binding arrangement between the parties who enter into the agreement, a covenant attaches to the land, which then takes the benefits and burdens of the covenant. Covenants therefore are capable of binding future owners of that land who were not parties to the original agreement. The introduction of environmental planning legislation has made the creation of covenants to protect private property largely, but not entirely,29 otiose. Indeed, covenants may obstruct the implementation of modern planning policies, in which case they can usually [page 73] be suspended in relation to affected development under the statutory scheme.30 The concept of a covenant, and also a contract, however, has been borrowed by legislation in creating property management agreements or conservation covenants, albeit without importing the technical difficulties that beset the operation of common law covenants.31 Easements are rights that may be exercised for the benefit of one property over a neighbouring property. A right of way is a common form of easement. When coupled with a right to take resources from land, a profit à prendre (right to take) may be created. This grants to the holder of the profit not only rights of access over the land but the right also to remove a resource, such as timber, fish, turf or sand.32 Modern statutory licences or entitlements that allow the holder of the entitlement to secure access to public resources such as water and fisheries may be viewed as statutory versions of a profit à prendre.33 3.10 Legislation has also created other forms of property rights previously unknown to the common law; for example, biodiversity credits created under a biobanking agreement for offsetting the impacts of development, particularly on threatened species;34 and the right of carbon sequestration,35 the process by which a tree or forest absorbs carbon dioxide from the earth’s atmosphere.36 A carbon sequestration right37 is a type of profit à prendre38 that may be conferred separately from the ownership of the trees, allowing the owner a right to storage of carbon in the trees; and, as a property right, the ability to use or sell on the benefits of the carbon sequestration, perhaps under a scheme for offsetting carbon emissions under an emissions trading scheme, either domestic or international.39 [page 74] Permissive ‘rights’, or licences, do not have the security attached to a right in property; they may be revoked at any time, though if coupled with a

contract, revocation of the licence may trigger a claim for breach of contract. A licence is a personal arrangement between the person who grants the licence (the licensor) and the grantee (licensee); it cannot therefore be transferred to anyone else. Licences are used extensively in statutory schemes for environmental management, though modern licences may not bear all the characteristics of a common law licence. Statutory licences, sometimes referred to as rights of access or statutory entitlements, for example, are commonly transferable.40 3.11 To someone contemplating making an arrangement with a landowner or resource manager about access to natural resources, the type of legal interest that enables access to those resources is obviously important. The person negotiating for access to a private or public resource will want security and therefore a right of property; the grantor may want the flexibility of being able to manage and control access by way of a licence. Allocations of statutory rights to water and fisheries, for example, have traditionally been by way of licences. It is very difficult, however, to plan for commercial operations, or even to maintain a viable way of life, if access to the resources that underpin investment can be taken away at any time. A licensee also has no rights against third parties, so could not protect the subject matter of the licence against interference by others.41 The lack of transferability of a licence is also problematic if, for example, a landowner not using a water entitlement wishes to transfer the right to a neighbour;42 or a fisherman wants to retire from the industry and transfer his fishing right to another operator. Gradually, both regulators and the regulated community began to treat such licences as de facto property entitlements, in effect turning a blind eye to informal transfers of entitlements43 and thus placing a price on the value of the licence at any particular point in time. Eventually, government policy had to recognise the inevitable; modern legislation creates transferable entitlements to resources that bear more of the characteristics of proprietary than permissive rights.44 One of the conditions on which federal funding would be delivered to the states under the National Water Initiative (NWI), in fact, was the separation of rights in water from the ownership of the land, thus making water a tradeable commodity.45 This could never have happened under a common law licensing regime. [page 75]

The effect of environmental legislation on

common law rights 3.12 Legislation has clearly borrowed from common law concepts in crafting statutory regimes for environmental management. Aided by an appreciation of principles of common law, it then becomes easier to understand what the legislation is trying to achieve, and why and how it is doing it in the manner set out in the legislation. Often, however, the exact effect of legislation on principles of law as they would be understood at common law is not so obvious. The normal rule of statutory interpretation is that principles of common law are not affected by legislation except by express or implied statutory amendment. In other words, the common law survives unless and until it is amended or repealed by legislation.46 3.13 Legislation may deem it necessary to modify common law rules to give effect to the policies underlying statutory schemes; but interpretation of statutory schemes that modify private rights will seek to go no further than is necessary for implementing the clear intent and purpose of the legislation.47 3.14 Occasionally, only abolition of common law rules will serve the statutory scheme. In New South Wales, for example, common law rules about the standing of a person to address a court have been simply abolished; any person has the right to take action to remedy or restrain breaches of environmental laws.48 Abolition of the common law rules has been based on contemporary social concerns that environmental laws, enacted in the ‘public interest’, should be able to be enforced by anyone irrespective of whether they have recognised common law interests to protect. Another example is the doctrine of riparian rights at common law; that is, the right of a landowner whose land abuts a natural watercourse to access water for domestic purposes. Riparian rights formed from common law principles of water entitlements that are based on a European climate do not sit well with the realities of water management under Australian climatic conditions. Most jurisdictions have abolished this right49 only to replace it with a very similar, but more clearly defined, statutory entitlement,50 thus giving more certainty to the overall statutory scheme for water management.51 3.15 A more recent example, which goes to the heart of urban and suburban ‘property rights’, is the Trees (Disputes Between Neighbours) Act 2006 (NSW), the purposes of which are to enable the Land and Environment Court to make orders to remedy, restrain or prevent damage to property or to prevent injury to any person by a tree

[page 76] that is situated on adjoining land.52 This function would normally be undertaken by the common law action in nuisance,53 which has now been abolished for the purposes of resolving disputes over damage caused by trees.54 The policy behind this is to afford disgruntled neighbours a more effective way of resolving an increasing number of disputes about trees than seeking redress in the Supreme Court, which is the traditional way to resolve a nuisance. This Act does not, however, have any effect on common law actions in negligence or trespass seeking to remedy injuries caused by trees.55 3.16 The right to seek common law remedies has also been modified by the granting of statutory exemptions to government administrators conducting difficult tasks of environmental management.56 In addition, of course, all environmental statutes will, to some extent, ‘modify’ the common law ‘rights’ of private landowners to conduct activities on their land that do not unreasonably interfere with neighbouring landowners; after all, this is the basic intent of environmental legislation, and the subject matter of much of this book. On the other hand, the availability and use of common law actions to remedy environmental harm may exert an influence on environmental outcomes that is consistent with governmental policy to protect and manage the environment. For this reason, environmental legislation not only frequently and deliberately preserves common law rights indirectly, by dint of not modifying or otherwise affecting them,57 but also may expressly preserve rights to take common law actions, providing specifically that civil rights and remedies are not to be limited by the provisions of the legislation. Common law remedies to compensate for damage caused by pollution, for example, would be considered complementary to statutory schemes for managing pollution.58 [page 77]

Common law actions 3.17 The common law does not regard, and never has regarded, harm to the environment per se to be worthy of a remedy at common law. True, the common law action in nuisance59 may compensate a landowner for damage to the environment, but this is because the common law views this as an infringement of the landowner’s property rights, rather than as a breach of any duty to protect the environment. Common law actions are, of course,

essentially reactive, not proactive. They are designed more to compensate victims of harm for the wrong they have suffered, although, in so doing, some deterrence factor may be achieved.60 The common law may remedy any acts that cause injury or harm to property, or unreasonably interfere with the enjoyment of land. These remedies are usually sought through actions in nuisance or trespass — forms of ‘tort’ or civil wrong for which damages to compensate for any loss or injury, and an injunction to put a stop to such unlawful activities, may be claimed.61 Since the focus of these common law actions is the protection of private rights, not environmental protection, the common law is of limited assistance in controlling environmental damage. The landowner’s ability to protect his or her own environment may, however, even if only accidentally, result in the protection of the wider environment. 3.18 Modern environmental legislation may also allow claims for compensation for damage caused by an act of pollution to be tacked on to a successful criminal prosecution,62 thus obviating the need in some cases to use the common law to recover damages. This procedure, however, is practically only of use if the regulatory authority successfully undertakes a criminal prosecution of the offender.

Nuisance and trespass 3.19 Rights in land and natural resources are protected at common law from unlawful interference mainly by actions in nuisance and trespass. A trespass is a direct intentional interference with land or property; for example, by way of some polluting deposit placed directly on it, such as the dumping of waste63 or direct spraying with toxic chemicals. A nuisance is an indirect interference with a person’s land or enjoyment of it, such as by way of noise, smells and other forms of air or waterborne pollution. So, for example, pollution emanating from outside the boundaries of the subject land and flowing down to it or drifting over it will generally be regarded as a nuisance rather [page 78] than a trespass.64 Nuisance may be classed as private or public, depending on whether individual landholders or the public at large are affected. Since the courts seem to have traditionally regarded polluting interferences, at least, as something ‘analogous to’65 or ‘in the nature of’66 a nuisance or

trespass, the technical distinctions between these forms of action matter little for our purposes. However, the development and use of the actions in nuisance and trespass as remedies for any interference with property rights still strongly influence the lawyer’s view of common law environmental rights in the present day. It is often convenient, or even necessary, for a plaintiff relying on these forms of action to prove a case, to show that in similar circumstances, respondents have previously been held liable for committing a nuisance or a trespass.67 A trespass, theoretically, is actionable without proof of harm; in nuisance, actual damage or at least interference with the use and enjoyment of land must be proved. Practically, however, the common law will not issue a remedy unless some sensible interference or material harm has actually occurred or is threatened.68 In any case, landowners are unlikely to take legal action for environmental harm unless some harm has occurred or is threatened, and since most environmental harm is likely to occur indirectly, most actions at common law will be based in nuisance.

Nuisance 3.20 A nuisance has been said to be ‘an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions’ of the community.69 In other words, an objective test will be applied based upon whether ‘a person of ordinary habits and sensibilities in the plaintiff’s position and circumstance would regard the interference with the enjoyment of the land as unreasonable’,70 allowing for a bit of ‘give and take’.71 Unlike an action in negligence, [page 79] which provides a remedy for personal injury or economic loss,72 to succeed in nuisance73 it is not necessary to prove that the respondent was under any legal duty to take care;74 but as in negligence, knowledge or foresight of the risk of harm is required. The plaintiff must, however, have suffered injury or damage to an interest in land as an owner or leaseholder of that land.75 The wrongdoer does not have to actually be the occupier of the premises from which the nuisance emanates; it is enough that such person is vested with management and control of the premises.76 A person who acquires land following the commission of a nuisance will only be liable, however, if the

nuisance is continued or adopted.77 If a person knows or ought to know of the nuisance and the real risk of reasonably foreseeable consequential damage to another, then an obligation arises to take such positive action as a reasonable person in that position and under those circumstances would consider necessary to eliminate the nuisance. In Stockwell v Victoria [2001] VSC 497, Gillard J concluded that the State of Victoria, through its employees, had committed a nuisance to the plaintiff by allowing feral wild dogs to move from its land onto the plaintiff’s land and kill his sheep. The activity that constituted the nuisance, with knowledge of its existence or circumstances, was allowed to continue by the occupier, who failed to take reasonable steps to eradicate it: Once a defendant occupier knows or is presumed to know of the hazards on his land, and if as a reasonable man he could foresee that the defect or condition if not remedied may cause damage to his or her neighbour’s land, a ‘measured duty of care’ arises.78

3.21 Generally, there will be no liability in nuisance unless the act complained of produces some ‘sensible’ or ‘material’ injury79 or affects the reasonable enjoyment80 [page 80] of property. For example, the pouring of heated water into a stream is an act of pollution,81 but in the legal sense there can be no liability unless the quality of the water also deteriorates sufficiently to cause harm — for example, by rendering the water unfit for human or animal consumption,82 by driving away or killing off fish or other marine life83 — or by hampering any other lawful pursuit that makes use of the water. Similarly, the emission of smoke and fumes,84 noise,85 vibration,86 sewage,87 drainage water or stormwater88 and other forms of pollution, or invasion by tree roots89 will not constitute an actionable nuisance at common law unless it can be proved that they are actually harmful to the plaintiff’s property,90 or in some way affect the reasonable enjoyment of it.91 Aesthetic or visual pollution, however, is difficult to remedy. The common law does not recognise any right to the maintenance of a view,92 to freedom from being overlooked,93 or from being exposed to unsightly accumulations of scrap or rubbish94 or an unkempt or overgrown garden.95 Resort to statutory planning controls may, however, provide an appropriate remedy.96 Although the court will not remedy merely trivial nuisances,97 the courts in practice will interpret the concept of triviality in favour of landowners. For example, it has been

[page 81] held that the loss of one night’s sleep through excessive noise is not trivial.98 However, where an action in nuisance is based on a substantial interference with the plaintiff’s enjoyment of land, for example by noise or fumes, rather than by physical damage to it, then it is clear that the reasonableness of the activity will govern liability.99 Whether an activity is reasonable will depend on various factors, such as the locality in which the alleged nuisance takes place, its duration, the potential for harm, and the character and extent of harm.100 Where actual damage to property is caused, however, then reasonableness is not such an important issue.101 3.22 In Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128; [2013] NSWCA 382, a nuisance action in respect of polluted stormwater runoff onto the plaintiff’s land from the defendant’s kerbs, gutters, roads and pipes, raised an interesting complication when the plaintiff also claimed that the subsequent ponding of the water would be likely to establish suitable habitat for a threatened species of froglet (the Wallum Froglet), and that the plaintiff would lose that portion of the land for development and bear the burden of being required to maintain it. Runoff onto the land had been increasing for a number of years.102 The existing development consent contained conditions relating to the production of a management plan for the froglet and consequent monitoring and reporting.103 In essence, the respondent claimed that the plaintiff’s case was a right to be free of a protected species; that such a right was not a right incidental to the ownership of property that was known to the common law, and therefore not subject to a claim in nuisance. Neither should such a right be acknowledged by extension of common law principles, for then there would clearly be an incoherence between the existence of a legislative framework for the preservation of threatened species and the existence of a right, protected by the law of nuisance, to be free of the presence of protected species on one’s land. The plaintiff claimed in response that it was merely seeking protection of its right to the enjoyment of the land. The land was inundated with untreated stormwater so that it could not enjoy it, a consequence of which was the establishment of the Wallum Froglet habitat that would otherwise not have been established because the land would have been free of the water and the consequence of ephemeral ponding. The plaintiff did, however, claim that damages for the nuisance should include costs relating to maintenance of the froglet habitat as well as diminution in the value of its land. The court accepted that the plaintiff’s claim was that the defendant’s conduct had

[page 82] caused an increase in stormwater runoff on its land that had caused an unreasonable interference with the enjoyment of its land, irrespective of the presence of the froglets, and therefore did not deal directly with the question of whether the froglets themselves could be regarded as a nuisance. The court held that the nuisance had been proved, but rejected the claim that damages should extend to the value of the land that would be quarantined by the froglets as the evidence established that the froglets were there prior to the nuisance arising and therefore were not a consequence of the nuisance. The plaintiff was, however, entitled to recover some of the additional costs of treating or improving the quality of the stormwater so as to accommodate the froglets. Subsequently, the Court of Appeal agreed that the council was liable in nuisance for directing a flow of stormwater runoff onto the plaintiff’s land, and agreed that the claim for diminution in the value of the land because of the requirement to provide and maintain a habitat for the froglets must fail; but rejected the claim for the cost of water treatment measures. The Court said that while there was a causal connection between the diminution and the conduct complained about, this was not reasonably foreseeable as a consequence of that conduct. 3.23 Interestingly, in Dimitrios Michos v Council of the City of Botany Bay [2012] NSWSC 625, heritage listing of fig trees was not seen as a reason why a claim in nuisance from encroaching tree roots should not succeed, although the argument raised in Gales about protective status under legislation was not directly raised. Although in Dimitrios the court awarded damages and a mandatory injunction for installation of a root barrier, presumably no court order that would result in harm being done to the trees, such as cutting the roots or even removing them, would be effective without the heritage listing being revoked.

Public nuisance 3.24 A public nuisance is some activity that materially affects the reasonable comfort and convenience of a class of people sufficient to be described as a section of the ‘public’;104 for example, emissions of pollution that represent a danger to the health and welfare of citizens. In Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110, such a nuisance (in this case odour and flies emanating from a compost heap used for commercial

mushroom growing) was described as a nuisance that is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings to put a stop to it, but that responsibility should be taken on by the community at large. Deposits or discharges of waste matter – for example water, dust or effluvia emanating from trade premises,105 and unclean, unsafe and infested premises106 — may be regarded as public nuisances. [page 83] Pollution of the air or excessive noise in a particular district may also be actionable as public nuisances.107 Such nuisances also commonly arise in relation to interferences on the highway or in relation to public rights of navigation; for example, interference by oil pollution.108 In the United States it has been optimistically, though as yet unsuccessfully, postulated that energy corporations and vehicle manufacturers should be liable in public nuisance for emissions of greenhouse gases.109 The grounds on which such an action may be brought are often identical or very similar to those on which a plea of private nuisance might be based; but the advantage of the action in public nuisance is that, not being limited to infringements of private rights, it is unfettered by notions of possession of land or other proprietary interests, and thus anyone who is affected may complain. The complainant need have no interest in land at all; though frequently, of course, those most affected happen also to be private landowners who could bring an action for private nuisance. Another advantage of the action in public nuisance is that, whereas a private nuisance generally involves some degree of repetition, an isolated act may amount to a public nuisance. 3.25 To complain of a public nuisance, however, plaintiffs must be affected in some way over and above the rest of the public generally. They must show they have suffered some special damage peculiar to themselves by reason of the interference with the public right.110 In Tate & Lyle Industries v Greater London Council [1983] 1 All ER 1159, for example, the plaintiff’s jetty suffered from siltation caused by the council’s dredging works higher upstream. The siltation also caused interference with public rights of navigation on the river through the blocking of various channels. The court held that the plaintiffs had clearly suffered special damage by the commission of this public nuisance. In Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524, the court held open the possibility that pollution of waters which caused the death of fish, thus interfering with the public right to catch those fish, could constitute an

actionable public nuisance; but held that there was no authority to suggest that the deposit of material into waters ‘in such a way that it does not adversely interfere with marine life and is not demonstrated to impede the navigation of the bay by boats amounts to a public nuisance’. In this case, the defendant mining company had formed a sand dune abutting Moreton Bay. Part of the dune slipped into the water carrying with it a large volume of trees, root masses and other vegetation. The plaintiffs were commercial fishermen licensed to take prawns by way of nets. The slippage caused a great deal of damage to the plaintiffs’ nets to such an extent that fishing eventually became uneconomical and the value of lost catches was considerable. [page 84] The plaintiffs claimed they had suffered special loss over and above the public generally by reason of the damage to their nets and the economic loss occasioned by their inability to continue fishing. Ambrose J, however, held that a statutory licence to take fish in a particular way was no different to the right of any other member of the public to catch fish without using nets. In neither case did the right granted involve a further right to have the fishing grounds kept clear of the deposit of the sort of material caused by the slippage in issue. Neither could it be said, in any case, that the deposit of material in fishing grounds that made it more difficult to catch fish interfered with a right of a public nature so as to constitute a public nuisance. 3.26 If a person cannot establish some special interest in order to sue for a public nuisance, then the only way of initiating legal action is by asking the Attorney-General, as guardian of the public interest, to take proceedings, or to grant permission to the plaintiffs to proceed on their own behalf. Since the Attorney-General is also, however, an elected member of the government, proceedings against government agencies are unlikely to be supported very often.111

Multiple nuisances 3.27 To have any chance of success in an action for nuisance, the plaintiff must establish that the interference complained of arose as a result of the respondent’s activities. If the nuisance would have arisen despite the respondent’s activities, then the respondent cannot be held liable.112 The respondent must be shown either to be responsible for the nuisance, or responsible for significant extension of an existing nuisance. This can create

problems in situations involving multiple sources of a nuisance; for example, multiple polluters all emitting the same sort of pollution. The plaintiff has to show that, but for the respondent’s activity, the plaintiff would not have suffered harm. The respondent may claim that the same damage would have occurred to the plaintiff despite the respondent’s activities, because of the nuisances already emanating from other sources. This excuse may, of course, avail each polluter in turn. This form of defence has not impressed the courts. It has accordingly been held that it is no defence to a nuisance action for pollution to prove that the environment was already polluted from another source,113 or that the respondent’s individual actions were not the sole cause of the nuisance.114 In Bonnici v Ku-ring-gai Municipal Council (2001) 121 LGERA 29, for example, the court held that where there is more than one contributor to a nuisance then all are individually liable, even though each contribution [page 85] on its own would be insufficient to ground an action in nuisance.115 A successful action may then force the dischargers to negotiate among themselves to reduce the pollution load to acceptable limits.116

Negligence 3.28 Whereas actions in trespass and nuisance remedy interferences with property rights, the action in negligence is generally used to take action for personal injury and economic loss. In essence, the law of negligence stipulates certain standards of conduct to which people ought to conform in their relationships to one another. These standards may govern potential impacts on the person, property or economic wellbeing of another. Although such impacts may arise out of conduct that adversely affects the environment, for example pollution of a watercourse, it is the harm to personal interests that is actionable at common law, not the harm to the environment itself. Liability in negligence basically depends on whether the respondent owed a duty of care to the person affected, whether a reasonable standard of care had been employed in carrying out or omitting to carry out the activity in question, and whether the damage caused was reasonably foreseeable as a result of that activity or omission. 3.29 The basis of the tort of negligence is that all persons owe a duty of care

to avoid harm to others who might reasonably be foreseen as likely to be affected if activities are carried out, or not carried out, negligently.117 The standard of care expected is one that is reasonable in the circumstances, which means that the more hazardous an undertaking, the higher might be the standard of care required. Indeed, where ultra-hazardous activities are being carried out, the standard of care required may amount almost to a guarantee that no harm will result, which effectively means that if harm does occur then the standard of care cannot have been met.118 Failure to take action, for example failure to warn of environmental dangers such as the risk of contamination of a water supply,119 or of residential land,120 or failure of a [page 86] statutory authority to supply information required for planning purposes,121 may also ground liability in negligence if personal or economic harm results from such failure. In assessing whether the requisite standard of care has been met, evidence of industry practice will be relevant but not conclusive. The courts will not effectively delegate the task of deciding what is a reasonable standard of care to industry or professional groups.122 Indeed, the general practice itself may be shown to be negligent; for example, where industry practice does not keep abreast of increased awareness of dangers and the introduction of new technology that might lessen the risks.123 In determining whether the harm occasioned by an act was foreseeable, so long as the harm suffered is of a type or class of harm that is reasonably foreseeable, it does not matter that the particular harm which eventuates, or precise set of circumstances leading to the harm, was not foreseeable.124 For example, if bodily harm of some kind was foreseeable as a possible consequence of a breach of duty, the defendant will be liable for the actual bodily harm that ensues, no matter how unusual that harm might be, so long as that kind of harm was foreseeable.125 However, if, for example, damage by fouling from an act of pollution is foreseeable, but not damage by fire when the pollutant ignites, then the resulting harm as a result of fire would not be actionable.126 A duty of care then, does not apply to harm that is not of a type or kind that is reasonably foreseeable. 3.30 Loss or damage from negligent acts or omissions that cause environmental harm would generally be expected to take the form of financial loss or personal injury. Decisions of statutory or government authorities are

susceptible to this risk. An example of economic injury is Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419. Potato farmers whose crops had been destroyed by the deliberate addition of chemicals to water used for irrigation, in a bid to tackle infestation of the waterway by bluegreen algae, successfully sued the respondents for their financial loss. The respondents had statutory authority to take or approve such action, but not the authority to carry it out negligently. Contaminated sites127 also have the ability to raise issues of negligence. In Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9, the council was found to have been negligent in giving approval [page 87] for a subdivision over land that was later proved to be contaminated, and damages amounting to several million dollars were ultimately awarded by the High Court.128 In Western Districts Developments Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283, the court stressed that whether a public authority is subject to a common law duty of care in carrying out its functions depends, among other things, on the legislation containing the statutory powers or duties. Where statutory provisions require an authority to be satisfied about certain things before exercising a power, and the power is exercised without being so satisfied, then this may indicate want of reasonable care, and potential liability for economic loss to persons who are vulnerable, such as prospective purchasers of subdivided lots. It is not reasonable to require prospective purchasers to take steps to check whether a council has improperly exercised a statutory power. This finding has implications, for example for approval of subdivisions in coastal zones that are potentially subject to impacts from climate change, where consent authorities are directed by legislation to be satisfied about certain matters before giving consent. It should be noted, however, that in this case no defence was argued under the Civil Liability Act 2002 (NSW) (see 3.38), which could weigh on any future argument that cites this case as a precedent in any action against a public authority. 3.31 Economic loss may also, of course, be caused by the negligence of neighbouring landowners as well as by the actions of bureaucracy. In Perre v Apand (1999) 198 CLR 180, a South Australian farmer successfully claimed damages from a neighbour whose negligent conduct had allowed potato wilt to spread onto the plaintiff’s land, denying his ability to sell into the lucrative Western Australian market.129 Also, in Tutton v Walter [1986] 3 WLR 797,

the death of the plaintiff’s bees through spraying of insecticides by a neighbour was held actionable in negligence. 3.32 An example of personal injury arising out of environmental pollution is Ryan v Great Lakes Council (1999) 102 LGERA 123; [2002] HCA 54. Ryan’s case provides a good illustration of the difficulties inherent in determining whether a common law duty of care arises out of the conferment of statutory responsibilities; and, if so, what are the applicable standards for meeting that duty, and how is it decided whether those standards have in fact been met. Early in 1997 there was a surge of reported cases of the Hepatitis A virus (HAV) in New South Wales. Subsequent investigation by a New South Wales Government Task Force attributed 444 of these cases to the consumption of oysters grown in Wallis Lake, on the northern coast. One of the HAV sufferers, Mr Ryan, brought an action in [page 88] negligence in the Federal Court on behalf of himself and nearly 200 other persons130 who had consumed contaminated oysters. The plaintiff also alleged various breaches of the Trade Practices Act 1974 (Cth) relating to the sale of goods of unmerchantable or unsuitable quality. The respondents to this action were the local Great Lakes Council, the state of New South Wales, and the growers and distributors of the oysters. It was established in evidence that oysters grown in the lake had the capacity to collect and concentrate viruses, including HAV. These viruses were present in sewage effluent emitted from several points around the lake. Although the exact source or sources of the contamination could not be precisely identified, contamination of the oysters consumed by Mr Ryan and others had been caused by pollution from these point sources. The depuration system required by the state regulator (the Health Department) was one method used to reduce the presence of human viruses in oysters but it would not remove them completely. This served to underline the necessity for an effective water quality management and monitoring program. Council was aware of deficiencies in the sewerage systems of areas surrounding the lake and its catchment. In particular, council officers were aware of the health significance of septic tank pollution, and of the potential for spread of disease. Council officers were also aware that lack of proper management and maintenance of septic tank systems was resulting in pollution. Significantly, however, council officers had given up investigating complaints of septic tank pollution because of lack of support and direction

from council. By the time of the outbreak of HAV, it appeared that council had got as far as resolving that issues of effluent treatment and disposal should be addressed, but that no concrete action had been taken. 3.33 At first instance the judge, Wilcox J, concluded that all the respondents were aware or ought to have been aware, of the risks to oyster consumers of faecal contamination of the lake, and all had, in various ways, been negligent. Mr Ryan was awarded $30,000 in compensation plus legal costs. All other parties represented by Mr Ryan (184 of them) were, subject to proof of damage, also entitled to be compensated. Appeals against these findings to the Full Court by the State of New South Wales and the growers and harvesters of the oysters were subsequently dismissed; the appeal by the council, however, was successful, a majority of the Full Court131 concluding that, although it was foreseeable that lack of effective action on the part of council might lead to contamination of the water and a danger to consumers of oysters, this did not in itself establish that council was under an actionable duty to take such action. To impose a duty of care on council would be to expose it to potentially unlimited liability on behalf of an indeterminate class of persons (the public generally), since [page 89] council had no control over the numbers of oysters grown and sold. The court held that a duty to take affirmative action in these circumstances should not be imposed on a statutory authority in favour of the public at large; this would be neither fair, nor just nor reasonable. As Lindgren J explained:132 … it would not be an incremental development but a major change of direction in the law if we were to hold that the council owed an actionable duty of care to the oyster consuming public in the circumstances of this case … [I]n my view it is for the High Court, not this court, to take the step of recognising a liability in these circumstances.

In any case, said the court, even if there were a duty of care owed by council to the consumers of oysters, failure to take all steps that were reasonably open to it to minimise faecal contamination of the lake had not been shown to have caused the respondent’s illness. By contrast, the statutory powers vested in the state, specifically with respect to the cultivation of oysters and public health, were clearly for the protection of members of the public who might be consumers of oysters,133 and the failure to carry out those duties properly could foreseeably have caused the injuries that had in fact occurred. 3.34 This interpretation of state liability was, however, subsequently

overruled by the High Court,134 which denied that the State had any duty to consumers that would enable a consumer harmed by eating the oysters to sue for personal injury. The policy was clearly one of self-regulation; the State had not assumed any control over the risks even if it did have powers to act. In the event, the State of New South Wales, which had powers to regulate the oyster growing industry as well as water quality, and indeed did exercise some powers of regulation, was therefore held not to be legally accountable to consumers for the defects in the regulatory scheme. This left the oyster growers to unsuccessfully defend the charges brought in negligence and under the Trade Practices Act. 3.35 Assumption of control can be a crucial issue in grounding liability on government authorities. In Timbs v Shoalhaven City Council (2004) 132 LGERA 397, a council officer who refused consent for tree removal effectively made the council liable for the subsequent death of an occupier when the tree fell on the premises. The crucial issue seems to have been that when the officer took it upon himself to give advice about the safety of the tree, he assumed control of the risk; and that with further consideration, the risk would have become apparent. Similarly, in Shire of Brookton v Water Corporation (2003) 133 LGERA 119, a council was held liable for the consequences of fire escaping from a tip site after an employee had attempted [page 90] to extinguish it, while in South Australia v Simionato [2005] SASC 412, liability in negligence was upheld for plantings of trees and shrubs that took away moisture from the plaintiff’s land that led to damage to the plaintiff’s property. 3.36 The question of control over threats arising from climate change, such as the vulnerability of beachfront landowners and resultant council works to protect against or rehabilitate damage, has also been postulated as one way in which actions in negligence might arise in climate change litigation,135 although the conferment of statutory immunities from such possible liability is likely to be a preferred policy response.136 Of course, success in negligence cases depends on establishing a connection between cause and effect — in other words, proving that the injury was caused by the activity in question — and this is difficult in climate change litigation.137 The question of causation is not necessarily a scientific or philosophical one; however, the particular act or omission that is called into question must be able to be fairly and properly considered a cause, if not necessarily the sole cause,138 of the resultant harm.139 The longer the gap between cause and

effect, or the more incremental the onset of harm, the more difficult it may be to establish causation. This is particularly the case with effects that occur from cumulative impacts or fail to show up for a considerable period of time; scientific evidence becomes increasingly important, therefore, in linking the cause with the effect.140 This might be especially problematic for tort-based climate change litigation.141 3.37 Recent legislative reforms in some jurisdictions have tried, to some extent, to put the brake on any potential liability of public authorities, including councils,142 [page 91] although this legislation seems clearly to be more directed to personal injury claims. The legislation begins by stating that:143 A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

It has been held that this provision effectively restates the common law position outlined in Wyong Shire Council v Shirt (1980) 60 LGRA 106.144 On public authority liability the legislation continues:145 The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

And for proceedings based on a breach of statutory duty, or wrongful exercise of or failure to carry out a statutory function:146 … an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority

having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

In Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management [2012] WASCA 79, in which the plaintiffs were claiming damage caused to wine grapes caused by prescribed burning in forests under [page 92] the control of the respondent, the court held that, although statutory duties or powers must be exercised with reasonable care, where, as here, there was no other reasonable method by which the respondents could carry out their statutory duties, and given that the alleged damage had been caused not by the escape of fire, but by secondary smoke effects, the plaintiffs could not succeed. A duty of care would not arise if it might undermine the effectiveness of duties imposed by statute. It was clear from the legislation that conferred duties of prescribed burning that this function was of paramount importance and that the objective of minimising smoke from such burning was subsidiary to the primary objective. 3.38 In New South Wales, similar provisions apply to an exercise of a ‘special statutory power’.147 Since these provisions are expressed to apply to ‘civil liability in tort’,148 ‘claim for damages for harm resulting from negligence’149 or ‘any civil claim for damages for harm’150 where ‘harm’ includes damage to property and economic loss,151 then clearly there is room for judicial expansion of this protection. In Queensland, however, the principles of liability apply only to a duty of care or breach of statutory duty,152 which may suggest that actions in nuisance or trespass are not covered, whereas in New South Wales the provision about ‘special statutory powers’153 applies to ‘proceedings for civil liability’, with no mention of any ‘duty of care’.154 The potential for tort-based climate change litigation, at least in negligence, may be ultimately snuffed out by this or similar statutory exclusions.155

The defence of statutory authority 3.39 With the advent of modern planning and pollution control legislation, activities that would otherwise cause a nuisance at common law are more likely to be conducted in areas zoned by local government for that purpose, and licensed by local government or the relevant environment protection authority (EPA). The general

[page 93] rule is that the mere issue of a permit for development or a licence to emit pollution, and adherence to the conditions of that licence, will not automatically provide a defence to an action at common law. This is because the issue of a licence is an act of executive, not parliamentary, governance, and only parliaments, not bureaucrats, can modify or repeal legal entitlements. This is part of that fundamental principle of democracy referred to in Chapter 2 as the doctrine of the separation of powers. So, whereas compliance with a licence might be a defence under statutory schemes for environmental management, this will cut no ice at common law unless the common law rights have been modified or removed by statute. For example, in Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108, the Forestry Commission was held liable to a downstream landowner for siltation caused by logging operations that detrimentally affected the quality of the water lawfully used by the plaintiff for domestic purposes; while in Lawrence v Kempsey Shire Council (1995) 87 LGERA 49, the plaintiff successfully recovered damages for degradation to his land caused by invasions of nutrient enriched sewerage emanating from the defendant’s sewage treatment works. Both these activities had been licensed by the New South Wales EPA, and in Van Son the Forestry Commission was logging under its own statutory authority, the Forestry Act 1916. However, neither such statutory authority nor the issue of agency licences could extend to nor excuse an unreasonable performance of the permitted activities at common law. In neither of these cases was the statutory authority to log, or to issue licences or approvals, interpreted as allowing the commission of a common law nuisance. Legislation could, of course, because it is superior to the common law in cases of conflict, authorise the commission of common law nuisances and also negligence in the carrying out of licensed or other permitted activities. Persons and public authorities are not immune from actions in nuisance and negligence simply because they are purporting to exercise public statutory functions. However, with the imposition of greater statutory responsibilities on the providers of public services and managers of public resources, parliaments have shown more willingness to exempt statutory authorities from the consequences of their own actions — usually so long as the activities complained of were done ‘in good faith’ in the pursuit of their statutory functions. 3.40 The courts’ attitude to such ‘exemption clauses’ is to treat them

strictly, because they affect common law rights, and as a general rule of statutory interpretation, the courts take the view that common law rights should not be affected, unless by clear or necessary and unambiguous statutory intent. In Brodie v Singleton [2001] HCA 29, a majority of the High Court said at [97]: Statutory provisions which permit public authorities to engage in what otherwise would be tortious or otherwise legally wrongful conduct are disfavoured; they are ‘strictly’, even ‘jealously’, construed.

For example, the Local Government Act 1993 (NSW) s 733 provides that a council will not incur liability in respect of anything done or omitted to be done in good faith by council insofar as it relates to flooding. In Bankstown City Council v Alamdo [page 94] Holdings Pty Ltd (2005) 142 LGERA 1, the High Court held that the phrase ‘not incur any liability’ also operated to exclude liability for injunctive relief, as well as damages, for future possible occurrences arising out of whatever had been done or been omitted to be done.156 The court also approved the interpretation of ‘good faith’ by the Full Court of the Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 at 468–9: (a) it is unlikely ‘good faith’ will be established merely from evidence that the party relying on the defence acted honestly and without malice; and (b) for the defence to be made out there should be evidence that a real attempt was made to do properly the very thing for which immunity is sought: this may involve following an established system, or set of procedures.

Effectively, therefore, the clause attempts to oust liability in nuisance and negligence for both past and future conduct. 3.41 In Forbes Shire Council v Pace (2002) 124 LGERA 37, the plaintiff’s land had been inundated by flooding from a council-controlled sewage treatment plant, causing damage to crops and fencing that allowed cattle access to contaminated grass. The court held that the clause only extended immunity to the true effects of flooding, not to effects caused by the toxic nature of the discharge. In any event, the court also found that council’s attempts to prevent such occurrences by construction of levee banks had lacked real effort and therefore the requirement that it should have acted in good faith had not been made out.157 In Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA

419, a clause contained in the Water Administration Act 1986 (NSW) s 19 that exempted the corporation from any action for loss or damage ‘suffered as a consequence of the exercise of a function’ of the corporation was held not to excuse the negligence of the respondent in consenting to the addition of chemicals to water used for irrigation by the plaintiffs, leading to the destruction of their potato crops. The plaintiffs had not been warned of the introduction of the chemicals and continued to irrigate, with disastrous consequences. A majority of the High Court held that this exemption did not operate to excuse all positive acts of the corporation, only those that in the exercise of the corporation’s functions would necessarily involve interferences with persons or their property. The function of supplying water was not such a function; it was more in the nature of a contractual arrangement between the parties. In such a case, general words of immunity should be read down ‘so that they do not apply to functions of an ordinary character performed by the respondent and which are done pursuant to agreements with the consent of private citizens’.158 In any case, the harm had arisen because of a failure to warn the plaintiffs of a danger of which the corporation knew or ought to have known; and that the failure to warn constituted a separate tortious omission, [page 95] rather than being regarded as bound up with the exercise of functions to which the exclusion clause could have applied. 3.42 Puntoriero is a case that displays quite vividly the difficulties facing regulators managing natural resources in circumstances where there is still a deficiency of scientific understanding or appreciation of risk, or at least a reluctance by governments to respond to it — in this case a complex problem of catchment and water management. Climate change will raise the same sort of problems and potential for legal liabilities.159 At its most simple, though, policymakers have a choice: either to excuse the negligence of statutory authorities fulfilling difficult and complex natural resource management (NRM) roles, in circumstances where they may need to ‘experiment’ with responses and methodology, and thus force parties who, through no fault of their own, suffer harm, to bear the loss; or recognise the entitlements of affected parties to claim compensation, if not through the courts, then through a statutorily constructed compensation scheme. Is there any reason why innocent private parties should bear the full brunt of all the risks associated with implementation of public policy? One effect of Punteriero was later nullified by statutory amendment to the

Water Administration Act 2000 (NSW) to cover ‘omissions’ as well as actions;160 but there is still no statutory scheme for compensation for potential harm that might be occasioned to innocent parties, such as the Punterieros, from negligent decision-making by government authorities in the future. 3.43 The breadth of these exclusion clauses, covering acts and omissions and held now to exclude liability for past and future harm, brings into focus the importance of the concept of ‘good faith’. ‘Good faith’ requires a real attempt to discharge the required function; ‘honest endeavour’ rather than ‘honest ineptitude’.161 The legislation may itself indicate that compliance with a guideline or manual will be evidence of good faith;162 but in the absence of such a statement, or relevant compliance, then the court will have to judge this from the circumstances. For example, in Port Stephens Shire Council v Booth (2005) 148 LGERA 351, it was held that a local council that had misled purchasers of land about noise impacts in a resort close to a Royal Australian Air Force base were not allowed to rely on the exemption contained in the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 149(6) for advice ‘provided in good faith’ in a planning certificate. There was [page 96] not a casual act of negligence here, but a systemic failure due to inadequate council practices and council therefore was not entitled to rely on the ‘good faith’ defence. While in Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, where the council tried to rely on the exemption contained in the Local Government Act 1993 (NSW) s 733, discussed above, the New South Wales Court of Appeal held that where the respondent had created the state of affairs that had resulted in a nuisance to the plaintiff (discharge of drainage water onto the plaintiff’s land), then the council’s failure to remedy the situation because of ‘budgetary constraints’ could not readily provide justification on good faith grounds. The court distinguished this from the situation that existed in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 142 LGERA 1, where the drainage system had become inadequate over time and the High Court had held that without negligence on its part the council was not liable for the nuisance.163 3.44 The defence of statutory authority need not be expressly conferred. The courts have been willing to read it into statutes by implication, having regard to the nature of the functions to be performed by the statutory authority. For example, in Allen v Gulf Oil Refining Ltd [1981] AC 1001, the

respondents had been authorised by statute (the Gulf Oil Refining Act 1965 (UK)) to construct a refinery and associated works. The appellants alleged that the operation of the refinery caused foul odours, vibration and noise; the respondents claimed statutory authority. The Act itself contained no provision expressly exempting Gulf Oil from liability for nuisance in the conduct of its operations. The House of Lords held, however, that the intention of the legislature, in authorising the construction and operation of the refinery, must have been to confer:164 … immunity against proceedings for any nuisance which could be shown … to be the inevitable result of erecting a refinery upon the site … to the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex … Parliament must be taken to have authorised it.

It is clear, however, that the nuisance must be an inevitable result of the authorised activities;165 and ‘the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense’.166 Harm may be regarded as [page 97] inevitable if the work causing the harm was reasonably necessary, properly performed, and there was no reasonable way of avoiding the harm.167 3.45 Reliance upon a statutory immunity for nuisance will also not extend to negligently carrying out the activity, ‘that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons’.168 The operation of a coal-fired power station that emits large quantities of smoke and gases and thereby causes a nuisance to neighbouring landowners could be said to fall within the implied immunity in nuisance, so long as the station was not being operated in a ‘negligent’ manner.169 The concept of implied immunity could also be applied to the amendments to the Coastal Protection Act 1979 (NSW) that provide for ‘emergency coastal protection works’ to protect private properties from beach erosion or damage to buildings.170 In Byron Shire Council v Vaughan; Vaughan v Byron Shire Council [2009] NSWLEC 88, liability in nuisance for causing damaging impacts on neighbouring properties from allowing temporary protection of a beachside property was alluded to as a distinct possibility. The subsequent amendments to the Coastal Protection Act limit such emergency works to 12

months’ duration; however, in the event that nuisance is caused to neighbouring landowners as a result of the use of this dispensation, an implied immunity might be subsequently argued.171

Statutory schemes for liability 3.46 Another approach is to create a form of statutory liability for nuisance or negligence and thereby capture all the elements of liability within the statutory scheme, thereby displacing common law principles of liability. For example, the Water Act 1989 (Vic) s 157 creates a statutory claim for intentional or negligent conduct in relation to a flow of water that causes damage to property or persons, or causes economic loss. It has been held that this provision does not require that the damage be referable only to the flow of the water as opposed to its chemical composition; and that a case could be brought where the damage was caused by a flow that increased salinity levels in land and water and a consequent fall in production.172 The Biosecurity Act 2015 (NSW) denies civil liability based on a contravention of a provision of the Act, [page 98] although compliance with the Act does not show that a civil obligation otherwise owed has not been breached.173 A statutory scheme may also assist a respondent to defend a charge of negligence. In MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613, while accepting that a planning officer assessing an application for development consent owed a duty to the applicant to progress the application in accordance with the statutory scheme, the right to lodge an appeal was considered to be a significant factor in refusing claims of misfeasance in public office (deliberately setting out to cause harm) and negligence lodged against a local council for delays in determining an application for development consent. Similarly, it was said in Mortimer v District Council of Streaky Bay [2014] SADC 75, that the scheme of the Development Act 1993 (SA) and Local Government Act 1999 (SA) was to oust common law liability in negligence for erroneous planning decisions, and that any remedies were limited to those prescribed in the legislation. 3.47 A broader manifestation of this approach is the suggestion that the common law concept of a duty of care should be extended to statutory responsibilities for the environment and natural resources management.174 The common law does not recognise, and never has recognised, of course,

that a duty of care might be owed to the environment per se.175 The introduction of such a duty was recommended by the Industry (now Productivity) Commission to counteract the prevailing tendency of legislation to concentrate more on ‘command and control’ regulation rather than prescribing broad outcomes and conferring appropriate discretionary powers on how to achieve them. According to the commission, introduction of a duty of care would require that individuals who could influence a risk of harm to the environment should take ‘reasonable and practical’ steps to prevent such harm. The duty would be supported, to the maximum extent possible, by voluntary standards, and mandatory standards only where absolutely necessary. This would effectively place greater reliance on self-regulation, with voluntary standards set by reference to codes of practice and environmental management systems (EMS), to demonstrate compliance with the duty. 3.48 Response to the recommendation for an all-encompassing duty of care to be introduced into legislation has been mixed. While most commentators accept the philosophy, many are nervous about how such a concept could be translated into legislation.176 A number of agencies, however, called for the duty of care to be made explicit in law. For example, the Sustainable Land and Water Resource Management [page 99] Committee recommended that a statutory duty of care should apply to harm that might be caused to both those who are living at present, and those yet to be born.177 This is a reflection of the principle of sustainable development known as intergenerational equity.178 If a statutory duty of care were to be introduced, the committee proposed that resource users who employed practices inconsistent with a duty of care would have to be responsible for making good any damage incurred as a result of their actions, be those damages on- or off-site. 3.49 In relation to ecologically sustainable development (ESD), Gardner179 has suggested that the proposed duty of care should be subject to the objectives of ESD, expressed as the objects of the legislation. The duty to take reasonable and practicable measures could then only be fulfilled if the principles of ESD were also met. Where the precautionary principle was triggered, then reasonable and practicable measures would need to comply with this principle. Gardner did, however, advocate an approach to regulatory instruments

similar to that adopted by the Productivity Commission — that is, performance-based planning for natural resources management rather than prescription, together with the introduction of a wide range of management tools from which managers could pick the most appropriate for achieving the objectives of the legislation. This is an approach that has also been strongly supported by other commentators.180 3.50 A limited statutory duty of care has already found its way into some pollution control legislation, where it may operate as a defence to a charge of unlawful pollution; or failure to comply with the duty may justify the service of administrative orders for clean-up or remediation. For example, the Environmental Protection Act 1994 (Qld) s 319 introduces a ‘general environmental duty’: A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm.181

A breach of the duty will not, however, of itself, constitute neither a criminal offence under the Act nor give rise to a civil right or remedy.182 The main response to a breach [page 100] will be administrative — the issue of an environmental protection order to secure compliance.183 Compliance with the duty, however, in carrying out activities that are otherwise lawful apart from this Act, will constitute a defence to breaches of the Act;184 and compliance with the duty may be shown by compliance with approved codes of practice, or relevant policies or authorisations.185 3.51 Introduction of a more positive duty on land managers for management of natural resources has also been postulated as a means of encouraging sustainable land management.186 Such a legal duty has now begun to appear in legislation that governs management of natural resources. The Land Act 1994 (Qld) s 199, for example, lists a number of positive measures that occupiers of Crown land must take to comply with the duty of care. An occupier must take ‘all reasonable steps’ to: (a) avoid causing or contributing to land salinity that (i)

reduces its productivity; or

(ii) damages any other land; (b) conserve soil; (c) conserve water resources;

(d) protect riparian vegetation; (e) maintain pastures dominated by perennial and productive species; (f)

maintain native grassland free of encroachment from woody vegetation;

(g) manage any declared pest; (h) conserve biodiversity.

These provisions, of course, apply to lessees and others in occupation of Crown land;187 they do not apply to private land management. Other legislation is, however, beginning to apply similar duties to management of private natural resources,188 associated waterways,189 cultural heritage190 and to animals.191 The Natural Resources Management Act 2004 (SA) s 9 provides: (1) A person must act reasonably in relation to the management of natural resources within the state.

[page 101] (2) In determining what is reasonable for the purposes of subsection (1), regard must be had, amongst other things, to the objects of this Act, and to – (a) the need to act responsibly in relation to the management of natural resources, and the potential impact of a failure to comply with the relevant duty; and (b) any environmental, social, economic or practical implications, including any relevant assessment of costs and benefits associated with a particular course of action, the financial implications of various measures or options, and the current state of technical and scientific knowledge; and (c) any degrees of risk that may be involved; and (d) the nature, extent and duration of any harm; and (e) the extent to which a person is responsible for the management of natural resources; and (f)

the significance of the natural resources, including in relation to the environment and to the economy of the state (if relevant); and

(g) the extent to which an act or activity may have a cumulative effect on any natural resources; and (h) any pre-existing circumstance, and the state or condition of the natural resources.

3.52 However, like the pollution control legislation cited above, legislation that imposes such duties on land managers also makes it clear that breach of the duty will not, on account of that breach alone, be subject to any criminal or civil legal enforcement.192 The duty of care is to be implemented basically by way of administrative orders for management or action plans, and environment protection or reparation orders, including orders made by an appropriate court or tribunal.193 For example, under the Land Act 1994 (Qld)

s 214, the minister may give a lessee or licensee of Crown land a written notice to take remedial action if the lessee or licensee is using the lease or licence: (a) beyond its capability for sustainable production; and (b) in a way not fulfilling the lessee or licensee’s responsibility for a duty of care for the land; and (c) in a way likely to cause, or has caused, permanent or serious land degradation.

A person will not be in breach of the duty, of course, if compliance with some existing management or licensing regime can be demonstrated;194 and may offer as a defence compliance with a best practice method or standard or applicable guidelines.195 The effect of development on the ability to carry out a general duty of care may also become a mandated relevant consideration that a planning authority must consider before issuing a development consent.196 [page 102]

Common law remedies 3.53 Plaintiffs in common law actions based on nuisance, trespass or negligence, generally seek damages as compensation for their losses, and, to prevent continuation or re-emergence of the contested activity, an injunction to restrain future conduct. Although an issue of an injunction lies within the discretion of the court,197 it was stated by Lord Evershed MR in Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149 at 181: It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered.

Where an activity may continue to cause harm until a court hearing resolves the issue, a plaintiff may seek an interim or interlocutory injunction to bring about an immediate cessation of the contested activity until a hearing can be scheduled; however, this may be subject to a requirement that the plaintiff give an undertaking to pay damages to the respondent for the respondent’s losses should the plaintiff not be successful in the final court hearing. Since these common law remedies, apart from damages, are available also to plaintiffs seeking civil enforcement of statutory breaches of

environmental laws, more detailed discussion of these remedies will be found in Chapter 21.

Alternatives to common law actions 3.54 Where a person is seeking damages as compensation for personal or economic losses or damage to property, there is really no alternative to a common law action. Occasionally, but unusually, legislation may allow a civil claim to be raised in or engrafted onto criminal proceedings,198 but this will of course depend on criminal proceedings being commenced, usually by a government regulator. Even more unusually, legislation may establish a right to make a civil claim irrespective of whether a contravention was a criminal offence or contravened a civil penalty provision.199 Where cessation of the activity is the primary motivating factor, however, then an action for nuisance is probably the least effective option, at least until other avenues have been exhausted. For example, where the harm being suffered is due to some polluting interference then it is likely also to be a contravention of legislation that prohibits unlicensed pollution, in which case a report to the appropriate regulatory authority (state or local authority) may well trigger the desired action. Where a nuisance is being suffered as a result of licensed emissions, of course, the regulatory authority may still be willing to review [page 103] the conditions of the licence, although in this case the plaintiff may ultimately have to resort to an action in nuisance. Unless a nuisance is being caused by a local government body, abatement of private nuisances by neighbouring landowners may also be effectively achieved by the issue of orders or notices issued by local councils under powers contained in local government legislation. These may include, for example, powers to serve notices for the prevention or repair of environmental damage being caused by drainage works, obstruction of watercourses, or by reason of the flow of water across land; and to remove and dispose of waste.200 Where public, rather than private, nuisance is the issue it should not be forgotten that local councils usually also have extensive powers to abate or order the abatement of public or ‘statutory’ nuisances.201

1.

For further discussion about native title, see 2.8.

2.

For a discussion of the ‘Crown’, see 2.7.

3.

See generally Bradbrook, ‘The Relevance of the Cujus Est Solum Doctrine to the Surface Landowner’s Claims to Natural Resources Located Above and Beneath the Land’ (1988) 11 Adel LR 462.

4.

For example, in Bernstein v Skyviews and General Ltd [1977] EWHC QB 1, it was held that the action in trespass was limited to the height at which it was contemplated that an owner might be expected to make use of the airspace as a natural incident of the use of his or her land. For further discussion of trespass and other common law actions, see 3.19 and following.

5.

See 3.18 and following.

6.

See the useful article by Fisher, ‘Rights of Property in Water: Confusion or Clarity’ (2004) 21 EPLJ 200.

7.

And see Macguire and Phillips, ‘The Role of Property Law in Environmental Management: An Examination of Environmental Markets’ (2011) 28 EPLJ 215 at 223. As to compensation for acquisitions of ‘property’, see 2.16.

8.

This may be how non-proprietary interests such as licences may be distinguished from property, though the lines are considerably blurred: see Commonwealth v WMC Resources Ltd (1998) 152 ALR 1 and South Australian River Fishery Association v South Australia [2003] SASC 174; (2003) 126 LGERA 122 (SASCFC), discussed at 2.21.

9.

See Sax, ‘Some Thoughts on the Decline of Private Property’ (1983) 58 Wash LR 481; Boer and James (eds), Property Rights and Environment Protection, Environment Institute of Australia, Canberra, 1990.

10. See Ryan, ‘Freedom of Property — An Urban Planning Perspective’ (1988) 11 UNSWLJ 48. 11. ‘English Law: The New Dimension’, Pt IV, The Challenge of the Environment, Stevens, London, 1974, p 59. 12. Embrey v Owen (1851) 6 Exch 353. 13. See Walden v Hensler (1987) 163 CLR 561. 14. See further Chapter 17. 15. See 2.13 and following. 16. See generally Walrut, ‘The Public Rights to Use the Sea and Rivers’ (2003) 20 EPLJ 423. 17. Beckett v Lyons [1967] Ch 449. 18. Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153; Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524. 19. See Hardin, ‘The Tragedy of the Commons’ (1968) Science, 162, 1243–8, reproduced at . 20. The transition from ‘common property’ to ‘public property’ occurs at this time: see Yandle, ‘Resource Economics: A Property Rights Perspective’ (1983) 5 JELP 1. A right of common is one conferred on members of a group who have common access to the exclusion of everyone else; a public right is available to any member of the public. Scarcity is the catalyst for government intervention, converting the right from one of common to a public right that can be controlled by government on behalf of the public. The allocation of rights to use that public resource may then create rights in the licence holder analogous to rights of private property in that others may be excluded. 21. For further discussion of the concept of the Crown, see 2.7. 22. See, for example, Fisheries Act 1995 (Vic) s 10; Water Management Act 2000 (NSW) s 392; National Parks and Wildlife Act 1974 (NSW) (NPWA) s 97; Nature Conservation Act 1992 (Qld) ss 7, 56, 83 and 84; Mineral Resources Act 1989 (Qld) s 8. The Fisheries Act 1995 (Vic) s 10 even

goes so far as to boldly assert that the Crown ‘owns all wild fish and other fauna and flora found in Victorian waters’. The precise nature of the control asserted by the Crown in relation to fauna in Queensland was comprehensively considered by the High Court in Yanner v Eaton (1999) 105 LGERA 71, discussed at 2.13. See also Fisher, ‘Rights of Property in Water: Confusion or Clarity’ (2004) 21 EPLJ 200. 23. Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 335. 24. On the ability of a fisheries law to confer rights of access to licence holders in respect of waters within the boundaries of a fee simple held by an Aboriginal land trust, see Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29. 25. See 7.21. 26. For example, Mineral Resources Act 1989 (Qld) Pt 7 (mining leases). 27. For example, Crown Lands Act 1989 (NSW) Pt 4 Div 3. 28. See Tooher, ‘Restrictive Covenants and Public Planning Legislation’ (1992) 9 EPLJ 63. 29. See, for example, Townsville Port Authority v Max Locke, Registrar of Titles [2004] QCA 294 (attempt to create covenants to guard against possible future nuisance claims arising from interference with amenity in a harbour development). 30. For example, Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 28. And see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27, in which a planning instrument that purported to suspend the effect of a restrictive covenant was declared to be of no effect because the procedural steps necessary to do that had not all been complied with. 31. See 7.46. 32. See, for example, Unimin Pty Ltd v Commonwealth (1974) 22 FLR 299; Corporate Affairs Commission v ASC Timber Pty Ltd [1989] 18 NSWLR 577. 33. Harper v Minister of Sea Fisheries (1989) 168 CLR 314 per Brennan J at 335; Conveyancing Act 1919 (NSW) s 88AB (forestry right deemed to be a profit à prendre). 34. Threatened Species Conservation Act 1995 (NSW) Pt 7A; and see further 13.58. 35. See O’Connor et al, ‘From Rights to Responsibilities: Reconceptualising Carbon Sequestration Rights in Australia’ (2013) 30 EPLJ 403. 36. It has been argued that interactions between the various traditional and statutory property interests may create legal complexities that do not efficiently account for the interconnected network of private and public rights; see Martin et al, ‘Environmental Property Rights in Australia: Constructing a New Tower of Babel’ (2013) 30 EPLJ 531. 37. See Hepburn, ‘Carbon Rights as New Property: The Benefits of Statutory Verification’ (2009) 31(2) Sydney Law Review 239. 38. Conveyancing Act 1919 (NSW) s 88AB; Forestry Act 1959 (Qld) s 61J(5); Forest Property Act 2000 (SA) s 12 (registered forest property agreement); Forestry Rights Registration Act 1990 (Tas) s 5; Carbon Rights Act 2003 (WA) s 6 (registered carbon agreement). 39. See Parry, ‘A Property Law Perspective on the Current Australian Carbon Sequestration Laws, and the Green Paper Model’ (2010) 36(1) Monash University Law Review 321. And see further Chapter 18. 40. For further discussion on the nature of statutory entitlements, see 7.38 and following. 41. See Malone v Laskey [1907] 2 KB 141. 42. See Bond and Farrier, ‘Transferable Water Allocations; Property Right or Shimmering Mirage?’ (1996) 13 EPLJ 213.

43. See Australian Fisheries Management Authority v Graham [2003] FCA 231. 44. See, for example, Fisheries Management Act 1991 (Cth) s 48; Water Management Act 2000 (NSW) s 71M. 45. For further discussion on access to water, see Chapter 17. And see Pye, ‘Water Trading Along the Murray: A South Australian Perspective’ (2006) 23 EPLJ 131; Mckenzie, ‘Water Rights in NSW: Properly Property?’ (2009) 31(3) Sydney Law Review 443. 46. See 2.54. 47. See, for example, Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (powers to remove private restrictive covenants to implement public planning purposes). 48. See further 19.37 and following. 49. For example, Water Management Act 2000 (NSW) s 393; Water Act 1989 (Vic) s 8(7). 50. For example, Water Management Act 2000 (NSW) s 52; Water Act 1989 (Vic) s 8. 51. For further discussion about access to water, see 17.20 and following. 52. The jurisdiction of the New South Wales Land and Environment Court (NSWLEC) also extends under Pt 2A of the Act to resolving neighbour disputes about high hedges that block sunlight or views on neighbouring properties. The court must be satisfied that the applicant for relief has made a reasonable effort to resolve the matter with the owner of the land on which the hedge is situated. To support enforcement of court orders in respect of high hedges, local councils may recover costs of trimming or removing any trees plus a prescribed administration fee. 53. See 3.19 and following. 54. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 5. The definition of ‘tree’ in the Act is more restrictive than the common law concept. The tenor of the Act is also to base liability on ‘fault’; just because a tree falls over this does not mean that the respondent is automatically liable for the damage it causes. Remedies under the Act are more restrictive than the common law; damage to property would be actionable but not economic loss: see Robson v Leischke [2008] NSWLEC 152. 55. Robson v Leischke (2008) 159 LGERA 280. A claim in trespass or negligence would have to be taken to the Supreme Court. On the remedies of nuisance, trespass and negligence, see 3.18 and following. 56. See 3.40 and following. 57. See, for example, Rushcutters Investments Pty Ltd v Water Board of New South Wales (1989) 68 LGRA 128; Flynn v Whitehouse (1989) 68 LGRA 275. 58. For example, Environment Protection Act 1997 (ACT) s 9; Protection of the Environment Operations Act 1997 (NSW) s 322; Water Act 1992 (NT) s 17(1); Environmental Protection Act 1994 (Qld) s 21; Environment Protection Act 1993 (SA) s 8; Environmental Management and Pollution Control Act 1994 (Tas) s 10; Environment Protection Act 1970 (Vic) s 65(1). In the Northern Territory, legislation expressly provides a statutory defence to common law actions for licence holders who are complying with the terms of that licence; however, this is not usual. As explained in Chapter 2 (see 2.5), such a provision essentially risks contradicting fundamental principles of the doctrine of the separation of powers. Frequently, the provisions of environmental legislation are also expressed to take precedence over inconsistent provisions in any other legislation (see [7.16]), which means that enactments that preserve the right to take common law actions would be effective in those circumstances despite any attempts to remove them in other legislation. 59. See 3.19 and following. 60. See generally Cane, ‘Are Environmental Harms Special?’ (2001) 13 JEL 3.

61. For discussion on the nature of civil remedies, see further Chapter 21. 62. See further Chapter 20. 63. For example, Hill v Higgins [2012] NSWSC 270 (minor encroachment of retaining wall and deposit of bricks). 64. Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 (CA); Esso Petroleum v Southport Corp Co Ltd [1956] AC 218 (HL); Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149; but compare Jones v Llanrwst Urban District Council [1911] 1 Ch 393 where material deposited on land by the normal flow of a river was held to constitute a trespass. For a more unusual form of nuisance, see Wilks, ‘Private Nuisance from Errant Golf Balls’ (1999) 16 EPLJ 149, and for a case of nuisance from errant golf balls, see Challen v The McLeod Country Golf Club [2004] QCA 358. 65. Fitzgerald v Firbank [1897] 2 Ch 96 at 97. 66. Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84 at 87. 67. As Williams and Hepple, Foundations of the Law of Tort, Butterworths, London, 1976, p 35 said, ‘if the facts on which the plaintiff’s claim is founded cannot be fitted into any of the old forms of action, one is on the way to saying that the plaintiff has no remedy’. 68. For example, in Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98, which concerned a case of trespass involving removal of trees, the court indicated that unless some diminution of the value of the land had occurred as a result of the unlawful trespass, then only nominal damages would be awarded. 69. Walter v Selfe [1851] EngR 335; (1851) 4 De G & Sm 315 at 322; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486. 70. Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 at 295. 71. Bamford v Turnley (1862) 3 B & S 66 at 83–4; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 487. See also Hill v Higgins [2012] NSWSC 270. 72. See 3.29 and following. 73. Fleming, Law of Torts, Butterworths, Sydney, 1987 once, rather optimistically, described the law of nuisance as ‘the common law’s contribution to environmental protection’. 74. Kraemers v Attorney-General (Tas) [1966] Tas SR 113 at 125; Smythe v Shire of Arapiles (1984) 16 APA 85. 75. See Hoxton Park Residents’ Action Group Inc v Liverpool City Council [2010] NSWSC 1312 (incorporated association not owning or leasing land in vicinity of claimed nuisance denied standing to pursue claim). 76. Hall v Beckenham Council (1949) 1 KB 716. This does not, however, generally make a landlord liable for nuisance caused by tenants unless the landlord expressly authorises the nuisance or it is close to certain when the landlord enters into the lease that a nuisance will ensue: see Peden Pty Ltd v Bortolazzo [2006] QCA 350. 77. An occupier may adopt a nuisance, for example, by making use of the object that constitutes the nuisance: Ikic v Evans (1989) 7 BCL 114. In Proprietors of Strata Plan No 14198 v Cowell (1991) Aust Torts Reports 81-083, it was held that a person who acquires land after trees have been planted on that land is not liable for nuisance caused by the roots of the trees unless the nuisance is adopted or continued. 78. Per Gillard J at [243]. See also Spencer v Australian Capital Territory [2007] NSWSC 303; Robson v Leischke [2008] NSWLEC 152. 79. Young v Bankier Distillery; Almhirst v Spencer (1884) 14 LTOS 433; Ridge v Midland Railway Co (1888) 53 JP 55; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Harkess v Woodhead

[1950] SASR 54. 80. McKell v Rider (1908) 5 CLR 480; Field v South Australian Soccer Association [1953] SASR 224; Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149. 81. Tipping v Eckersley (1855) 2 Kay & J 264. 82. Lillywhite v Trimmer (1867) 16 LT 318. 83. Fitzgerald v Firbank [1897] 2 Ch 96; Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149; Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84. 84. Halsey v Esso Petroleum [1961] 2 All ER 145; Bamford v Turnley (1862) 3 B & S 66; McKell v Rider (1908) 5 CLR 480; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482. 85. Field v South Australian Soccer Association [1953] SASR 224; Randwick Municipal Council v Henderson (1930) 10 LGR 18; Haddon v Lynch [1911] VLR 230; Halsey v Esso Petroleum, note 84 above. Landlords may also be liable for noise caused by tenants, where as a necessary and natural consequence of giving consent, express or implied, to the use of land, a noise nuisance would result: Tetley v Chitty [1986] 1 All ER 663 (land leased by local authority for go-kart racing). 86. Halsey v Esso Petroleum, note 84 above. 87. Pride of Derby Angling Association v British Celanese Ltd [1953] Ch 149. 88. Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128. See also Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248. 89. Robson v Leischke [2008] NSWLEC 152; Malliate v Sharpe [2001] NSWSC 1057; Dimitrios Michos v Council of the City of Botany Bay [2012] NSWSC 625; Valherie v Strata Corporation No 1841 [2004] SASC 170. See also South Australia v Simionato [2005] SASC 412. 90. St Helens Smelting Co v Tipping (1865) 11 HL Cas 642. 91. McKell v Rider (1908) 5 CLR 480; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Halsey v Esso Petroleum [1961] 2 All ER 145; Harkness v Woodhead [1950] SASR 54; Munro v Southern Dairies Ltd [1955] VLR 332; Field v South Australian Soccer Association [1953] SASR 224. 92. Day v Pinglen (1981) 34 ALR 545; Kent v Minister for Works [1973] 2 ACTR 1; see also Gillespie, ‘Private Nuisance as a Means of Protecting Views from Obstruction’ (1989) 6 EPLJ 94. 93. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 94. Bathurst City Council v Saban (No 2) (1985) 58 LGRA 201. Local government legislation, however, may give local councils powers to deal with unsightly land or structures: see, for example, Local Government Act 1934 (SA) s 666b. 95. Hill v Higgins [2012] NSWSC 270. 96. See further Chapter 10. 97. Ridge v Midland Railway Co (1888) 53 JP 55. 98. Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Scholl J quoting with approval Greene MR in Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 at 261. 99. Halsey v Esso Petroleum [1961] 2 All ER 145; Dunstan v King [1948] VLR 269; Harkness v Woodhead [1950] SASR 54; Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107; McFadzean v Construction Forestry and Mining Energy Union [2007] VSCA 289. 100. Dunstan v R [1948] VLR 269; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Munro v Southern Dairies Ltd [1955] VLR 332; Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108. 101. Halsey v Esso Petroleum [1961] 2 All ER 145; L’Estrange v Brisbane Gas Co [1928] St R Qd 180; St

Helens Smelting Co v Tipping (1865) 11 HL Case 642; Harris v Carnegie’s Pty Ltd [1917] VLR 95. 102. See Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85. 103. See Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209. 104. Local Government Act 1993 (NSW) s 125. This definition reflects the common law definition of public nuisance. 105. Smythe v Shire of Arapiles (1984) 16 APA 85. 106. Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; Wollongong City Council v Richardson (1989) 67 LGRA 423. 107. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169. 108. Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 (CA); Esso Petroleum v Southport Corp Co Ltd [1956] AC 218 (HL); Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391. 109. Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005; People of the State of California v General Motors Corp (2007) WL 2726871 (N D Cal). Both cases were dismissed as raising issues that were not justiciable; emissions of carbon dioxide raised complex matters of policy that were for governments, not the courts, to resolve. 110. Walsh v Ervin [1952] VLR 361; Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342. 111. Such actions were not uncommon in the United Kingdom, particularly in the nineteenth century, but the Attorney-General in Britain performs a non-political role. One example of this sort of action in Australia is Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437, in which an injunction was issued on behalf of the Attorney-General of New South Wales against a sewage farm for emitting offensive and unhealthy odours; see also Attorney-General v Brisbane City Council [1988] 1 Qd R 346. 112. Nalder v Commissioner for Railways [1983] 1 Qd R 620. 113. Attorney-General v Leeds Corp (1870) 5 Ch App 583; Wood v Sutcliffe (1851) 2 Sim NS 163. 114. Nixon v Tynemouth Sanitary Authority (1888) 52 JP 504; Blair v Deakin (1882) 57 LJ 522; City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 at 312. 115. Pride of Derby Angling Association v British Celanese Ltd [1952] 1 All ER 1326. 116. See Ogus and Richardson, ‘Economics and the Environment: A Study of Private Nuisance’ (1977) CLJ 284 at 301. 117. It is notoriously difficult, however, to conceptualise or predict when exactly one person will owe a duty of care to another. High Court judges have applied differing tests to determine the existence of such a duty. In Ryan v Great Lakes Council; Graham Barclay Oysters Pty Ltd v Ryan, discussed at 3.33–3.35, the concept of ‘control’ over the identified risks of harm was an important factor. See also Swanton and McDonald, ‘Liability in Negligence for Pure Economic Loss’ (2000) 74 ALJ 17. 118. Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42. 119. Scott-Whitehead v National Coal Board (1987) 53 P & CR 263; Puntoriero v Water Administration Ministerial Corp (1999) 104 LGERA 419 (failure of water supply authority to warn of chemical additives introduced to combat blue-green algal contamination). Brunton, ‘Beach Pollution in Sydney: The Legal Issues’ (1991) 8 EPLJ 232 at 239 has suggested that statutory authorities responsible for sewage discharges could also breach duties of care owed to local communities by, for example, failing to reveal the health risks of bathing at beaches affected by pollution.

Alec Finlayson Pty Ltd v Armidale City Council (1994) 84 LGERA 225; Armidale City Council v Alec 120. Finlayson Pty Ltd (1999) 104 LGERA 9 (failure of local authority to consider economic risks consequent on approving residential development on contaminated land). 121. L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225. 122. F v R (1983) 33 SASR 189 per King CJ at 194; see also Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 at 494; Young v Northern Territory (1992) 107 FLR 264 at 271. 123. Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 All ER 881 (employers failing to provide employees with adequate protection against noise). 124. Chapman v Hearse (1961) 106 CLR 112; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. 125. Determining the kind of harm that is foreseeable is not, of course, always an easy task. For example, in Tremain v Pike [1969] 3 All ER 1303, a farmhand contracted a rare disease through coming into contact with rat’s urine. The court held that although other types of complications might be foreseen as a result of contact with rats, this injury was not of a kind that could be foreseen. On the other hand, in Bradford v Robinson Rentals [1967] 1 All ER 267, an employee who suffered frostbite was able to recover since foreseeable injuries were said to encompass cold and chilblains. 126. The Wagon Mound (No 1) [1961] AC 388; The Wagon Mound (No 2) [1967] 1 AC 617. 127. See further Chapter 16. 128. See also Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd [2005] NSWSC 20. 129. See also Marsh v Baxter [2014] WASC 187 (unsuccessful actions in nuisance and negligence for financial injury asserted by an organic farmer against his neighbour, who lawfully worked his land to plant and harvest a genetically modified vegetable seed crop). The court concluded that Baxter could not be held responsible just for growing a GM crop in a conventional way; that wind blowing some swathes of canola onto Marsh’s property was not intentional, and that Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing an entirely orthodox harvesting method. 130. An action (generally referred to as a class or representative action) may be brought by one member of a class of persons on behalf of all members of the class who have suffered similar harm from the same wrong. Essentially, the class action is a procedure that will assist the court, where there are numerous plaintiffs, in establishing the legal liability of the respondent, after which each party must establish the nature and extent of their own harm to claim a remedy; see, for example, Federal Court of Australia Act 1976 Pt 4A; Federal Court Rules Order 73. 131. Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1. 132. Graham Barclay Oysters Pty Ltd v Ryan (2000) 109 LGERA 1 at 110. 133. Responses by the New South Wales government following this outbreak included the passage of the Local Government (Approvals) Amendment Regulation 1998, under which performance standards for sewage management are specified and approval is required for the operation as well as the installation of sewage systems. See also ‘On-site Sewage Management for Single Households’, Environment and Health Protection Guidelines, New South Wales Government, 1998; and Local Government Circulars 98/28 and 98/60. 134. Graham Barclay Oysters Pty Ltd v Ryan (2002) 125 LGERA 1. 135. McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405 at 413. 136. See 3.40. 137. See 18.45. 138. It will suffice that the respondent made a ‘material contribution’ to the causation of the harm: March v Stramare (1991) 171 CLR 506; Chappel v Hart (1998) 195 CLR 232. Note, however, the

uncertain effect of statutory introductions of concepts of causation in ‘civil liability’ legislation, discussed briefly at 3.38–3.39; for example, Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Wrongs Act 1958 (Vic) s 51. 139. Chappel v Hart (1998) 195 CLR 232. 140. See, for example, Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377. See also Cashman, ‘Torts’, in Bonyhady (ed), Environmental Protection and Legal Change, Federation Press, Sydney, 1992, p 125; ‘Toxic Tort Disputes: Proof of Causation and the Courts’ (1992) 9 EPLJ 302 at 312; Fowler, ‘A Comparative Analysis of Liability for Environmental Damage’ (1990) 7 EPLJ 271 at 275–6. 141. See Grossman, ‘Warming Up to a Not-so-radical Idea: Tort Based Climate Change Litigation’ (2003) 28 Columbia Journal of Environmental Law 1; Kerr, Tort Based Climate Change Litigation in Australia, paper presented at the Climate Change Litigation Forum, London, March 2002; Lipmand and Stokes, ‘Shifting Sands: The Implications of Climate Change and a Changing Coastline for Private Interests and Public Authorities in Relation to Waterfront Land’ (2003) 20 EPLJ 406; McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405. 142. For example, Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld). 143. Civil Liability Act 2002 NSW s 5B(1); Civil Liability Act 2003 (Qld) s 9. 144. Council of the City of Greater Taree v Wells [2010] NSWCA 147. 145. Civil Liability Act 2002 (NSW) s 42; Civil Liability Act 2003 (Qld) s 35; Civil Liability Act 2002 (WA) s 5W. In Cohen v City of Perth [2000] WASCA 306, the plaintiff succeeded in establishing breach of a statutory duty not to cause noise pollution. The relevant provisions under the Environmental Protection Act 1986 (WA) were held to be for the benefit of individuals, not just the general public. This case however pre-dates the Civil Liability Act 2002 (WA). 146. Civil Liability Act 2002 (NSW) s 43; Civil Liability Act 2003 (Qld) s 36. And see Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45 (no liability for escape of fire ignited by lighting strike in national park). 147. Civil Liability Act 2002 (NSW) s 43A. A ‘special statutory power’ is a power: (a) that is conferred by or under a statute; and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority (s 2). 148. Civil Liability Act 2002 (NSW) s 40. 149. Civil Liability Act 2002 (NSW) s 5A. 150. Civil Liability Act 2003 (Qld) s 4. 151. Civil Liability Act 2002 (NSW) s 5; Civil Liability Act 2003 (Qld) Dictionary Sch 2. 152. Although the Civil Liability Act 2003 (Qld) s 36 does not specifically refer in the text to breach of duty the title of the section refers to breach of statutory duty. On the other hand, the text refers to a function and a function includes a power (s 34). 153. Civil Liability Act 2002 (NSW) s 43A. 154. In Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128, the court was prepared to assume that the provisions of s 43A applied to claims in nuisance, even though the tenor of the legislation was clearly directed to claims in negligence; but rejected the council’s claim to be able to rely on this defence on the basis of unreasonable conduct. 155. See Chapter 18; and McDonald, ‘A Risky Climate for Decision-making: The Liability of Development Authorities for Climate Change Impacts’ (2007) 24 EPLJ 405 at 413–4. The Local Government Act 1993 (NSW) s 733, discussed at 3.41, extends also to ‘the likelihood of any land in the coastal zone being affected by a coastline hazard’. ‘Good faith’ may be demonstrated by

compliance with a manual relating to the management of the coastline. 156. See Attrill v Richmond River Shire Council (1993) 79 LGERA 178. 157. See 3.44. 158. Per McHugh J at [37]. 159. See Chapter 18. 160. Water Management Act 2000 (NSW) s 398. 161. Lack of good faith cannot be equated with either negligence or dishonesty. In relation to negligence, this is, of course, what such an exclusion clause is endeavouring to excuse. Good faith does, however, involve more than honest ineptitude; Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382. It involves acting honestly without any ulterior motive: see Mid-Density Development Pty Ltd v Rockdale Municipal Council (1993) 81 LGERA 104; or diligently, conscientiously or reasonably; Electro Optic Systems Pty Ltd v New South Wales [2014] ACTCA 45. There must be a real attempt to exercise a relevant power; Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382. 162. For example, Local Government Act 1993 (NSW) s 733(4), (5) (a manual relating to the management of flood liable land, or relating to the management of the coastline); Environmental Planning and Assessment Act 1979 (NSW) (EPAA) s 145B(3) (contaminated land planning guidelines). 163. The defence of good faith was also rejected in Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128. See also Marcic v Thames Water Utilities Ltd [2004] 2 AC 42. A similar exclusion clause in the Rural Fires Act 1997 (NSW) s 128, however, was successful in excluding liability in relation to the escape of bushfires that had been caused by a lightning strike with resultant destruction of property: Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701. 164. Per Lord Wilberforce at 1014. 165. York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391; Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108. 166. Manchester Corp v Farnworth [1930] AC 171 at 183 per Viscount Dunedin. 167. Symons Nominees Pty Ltd v Roads and Traffic Authority of New South Wales [1991] Aust Torts Rep ¶68,675. 168. Allen v Gulf Oil Refining Ltd [1981] AC 1001 per Lord Wilberforce at 1011. 169. This issue was raised in Macquarie Generation v Hodgson [2011] NSWCA 424 in relation to emissions of carbon dioxide, though no actionable nuisance was alleged in this case. 170. Coastal Protection Act 1979 (NSW) Pt 4C. 171. Local councils are protected from liability in the event that a landowner negligently places or maintains authorised emergency coastal protection works: Local Government Act 1993 (NSW) s 733(3)(f6). 172. Pumpa v Goulburn-Murray Rural Water Corporation [2010] VSC 169. See also South East Water Ltd v Transpacific Cleanaway Pty Ltd [2010] VSC 46. 173. Biosecurity Act 2015 (NSW) s 6. 174. Industry Commission, A Full Repairing Lease: Inquiry into Ecologically Sustainable Land Management, Report No 60, 1998. Available at . 175. See 3.18. 176. For example, an Agriculture, Fisheries, Forests Australia (AFFA) Discussion Paper entitled

‘Managing Natural Resources in Rural Australia for a Sustainable Future’, Canberra, 1999, commented, at p 553, that ‘while the statutory duty of care may not be practical, a broader concept of duty of care should be embraced by all members of society’. See also Gardner, ‘The Duty of Care for Sustainable Land Management’ (1998) 5 Australasian Journal of Natural Resources Law and Policy 29; ‘The Administrative Framework of Land and Water Management in Australia’ (1999) 16 EPLJ 212. 177. Sustainable Land and Water Resource Management Committee (SLAWRMC), Discussion Paper, ‘Principles for Shared Investment to Achieve Sustainable Natural Resource Management Practices’, Canberra, 1999. 178. See further 8.77. 179. Gardner, note 173 above. ‘The Administrative Framework of Land and Water Management in Australia’ (1999) 16 EPLJ 212. 180. See Gunningham et al, ‘Reimbursing the Future’, Biodiversity Series, Paper No 9, Department of Environment, Sport and Territories, Canberra, 1996; Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 181. See also Environment Protection Act 1993 (SA) s 25; Environment Protection Act 1997 (ACT) s 22; Environmental Management and Pollution Control Act 1994 (Tas) s 23A (couched in positive terms — ‘A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person’). 182. Environmental Protection Act 1994 (Qld) s 24(3); Environment Protection Act 1997 (ACT) s 22(3); Environment Protection Act 1993 (SA) s 25(4); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(3). 183. Environmental Protection Act 1994 (Qld) s 358; Environment Protection Act 1997 (ACT) s 45; Environment Protection Act 1993 (SA) s 25(4); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(3). For further explanation of the nature of administrative orders, see 20.4 and following. 184. Environmental Protection Act 1994 (Qld) s 493A(3); Environment Protection Act 1997 (ACT) s 143. 185. Environmental Protection Act 1994 (Qld) s 494A(4); Environment Protection Act 1993 (SA) s 25(3); Environmental Management and Pollution Control Act 1994 (Tas) s 23A(4). 186. Productivity Commission, ‘A Duty of Care for the Protection of Biodiversity on Land’, Canberra, May 2001. 187. See also Marine Parks Act 2007 (SA) s 37 (Crown waters); Adelaide Dolphin Sanctuary Act 2005 (SA) s 32. 188. For example, Catchment and Land Protection Act 1994 (Vic) s 20 (duties to avoid causing land degradation; but also to conserve soil, protect water resources and prevent spread of weeds and pest animals). 189. River Murray Act 2003 (SA) s 23. 190. Aboriginal Cultural Heritage Act 2003 (Qld) s 23; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 23. 191. Animal Care and Protection Act 2001 (Qld) s 17 (the Act makes no distinction between wild and domestic animals. For the definition of ‘animal’, see s 11); Animal Welfare Act 1993 (Tas) s 6. 192. Natural Resources Management Act 2004 (SA) s 9(4). 193. Catchment and Land Protection Act 1994 (Vic) s 37 (land management notices); Natural Resources Management Act 2004 (SA) s 9(6); Marine Parks Act 2007 (SA) s 37(4); River Murray Act 2003

(SA) s 26; Adelaide Dolphin Sanctuary Act 2005 (SA) s 37. 194. Natural Resources Management Act 2004 (SA) s 9(3). 195. Natural Resources Management Act 2004 (SA) s 9(7); Aboriginal Cultural Heritage Act 2003 (Qld) s 28; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 28. 196. See Development Act 1993 (SA) s 48(5)(da), (db), (dc). 197. See 21.5 and following. 198. For example, Protection of the Environment Operations Act 1997 (NSW) ss 246 and 247; Water Act 1989 (Vic) s 15(1)(c). 199. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 500. On civil penalties, see 20.14. 200. For example, Local Government Act 1993 (NSW) s 124. 201. For example, Local Government Act 1993 (NSW) s 125; Health Act 1958 (Vic) Pt III; Local Government Act 1999 (SA) s 254. Also see, for example, Smythe v Shire of Arapiles (1984) 16 APA 85; Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110.

[page 105]

Chapter 4 International Environmental Law Introduction 4.1 ‘No man is an island’ said John Donne1 and in this day and age, neither is any nation, no matter what its geographical characteristics. No nation on Earth can ignore the emergence of global environmental issues such as destruction of ecosystems and biodiversity and, of course, global warming. 4.2 The main difference between domestic law and international law is that the participants in international law (except for human rights cases) are countries (referred to as ‘states’) rather than individuals or corporations. In other words, international law is about the rights and obligations of nations to each other, rather than about the rights and obligations of individual legal personalities. There is some movement to expand the rights of individuals in international environmental law, particularly with regard to access to information, to participation in decision-making, and, importantly, to justice and human rights,2 and non-government organisations also have recognised roles,3 but essentially international law is still very much about relationships between nations. This form of international law is referred to as ‘public international law’, to distinguish it from that body of law known as ‘private international law’, which governs the international relations of individuals and corporations with one another. In law schools, private international law is often referred to as ‘comparative law’. An example of the operation of private international law in Australia was the action by citizens of Papua New Guinea brought in Australian courts against the Australian-based corporation BHP for damage by pollution arising out of goldmining operations at Ok Tedi.4 Public international law has characteristics that are quite different from those of domestic or municipal law. In municipal law the sources and content of the law are usually well defined, and the administrative and regulatory

institutions usually have clear and enforceable powers. The sources and content of international law are more variable and often more difficult to discern. [page 106] 4.3 Engagement of countries, particularly developing nations, in agreeing to international laws is, of course, also quite different to domestic legal engagement, where citizens effectively have no choice but to comply with the law. Various techniques or principles of engagement have therefore been adopted in international law, including the principle of common but differentiated responsibilities (a good example of which is the Kyoto Protocol5), and the provision of funding, technological support and capacity building.6 The other major difference, from a domestic perspective, lies in who makes and enforces international laws. Australian parliaments make, and the courts enforce, domestic law; but the Australian federal government, not the parliament or the courts, decides whether it will enter into an international agreement or comply with an international obligation. The government may be answerable to the international community for its conduct in this regard, but international law will have no direct force in this country until enacted into domestic law by Australian parliaments.7 A breach of an international obligation is not, for that reason alone, enforceable in Australian courts.8 4.4 The development of international environmental law focuses squarely on the United Nations,9 and in particular upon the United Nations Environment Program (UNEP),10 although there are other players with specific functions. UNEP has been responsible, for example, for drafting the Conventions on Climate Change11 and Biological Diversity,12 as well as giving assistance to states in the provision of scientific advice and in developing appropriate infrastructure for the delivery of environmental law.13 Other important international organisations allocated specific responsibilities include the Commission on Sustainable Development,14 the United Nations Development Program (technical and investment assistance),15 the World Bank, which operates the Global Environment Facility (financial assistance to developing nations for implementation of biodiversity and climate change convention responsibilities)16 and has made consideration of environmental assessment (EA) a formal requirement for all its operations,17 and the United Nations Economic, Scientific and Cultural [page 107]

Organisation (UNESCO),18 which has the carriage of World Heritage. The work of the Organisation for Economic Co-operation and Development (OECD) in promoting market-based instruments and policy approaches, for example polluter pays, may also significantly impact on environmental policy development and therefore environmental law. In our region, the South Pacific Regional Environment Program (SPREP)19 is quite active. 4.5 A major non-government organisation (NGO) is the International Union for the Conservation of Nature (IUCN),20 which has a unique mix of governmental and non-governmental members, a Commission on Environmental Law and an environmental law program, which has worked with UNEP in drawing up draft environmental treaties or other policy and legal instruments, and was influential in the adoption of the Convention on International Trade in Endangered Species (CITES). NGOs21 were also formally involved in drawing up the 1998 Aarhus Convention on environmental democracy. NGOs may also be accorded ‘observer’ status at meetings of the parties under some conventions, such as the 1946 Whaling Convention and CITES. NGOs also have an important role in monitoring compliance. In our region, the activities of Greenpeace22 in relation to marine pollution and the ‘Sea Shepherd’ in relation to whaling are well known. TRAFFIC,23 working in close cooperation with the Secretariat of CITES, monitors and polices international trade under CITES. In the Shrimp/Turtle case,24 environmental NGOs were allowed, as a matter of discretion, to make representations to the World Trade Organization (WTO) about that case. 4.6 The making of international agreements (variously referred to as treaties or conventions) may be compared with the making of legislation in a domestic law setting. There is, however, no World Parliament or World Government to introduce and consider draft legislation, as there is in domestic law. International conventions are initiated by concerned countries, or groups of countries, or by United Nations organisations such as UNEP, in response to global concerns. The ‘parliament’ is effectively the community of nations; however, unlike domestic parliaments, participants who do not agree can simply opt out of any agreement and avoid the obligations enshrined in it (although not necessarily obligations set out by principles of international law more generally).25 International agreements are effectively made and enforced by and against the parties to that agreement. International law, however, is not just contained in treaties, though these are the most easily recognisable and discernible manifestations of law, particularly environmental law. International law is contained also in general principles and the

[page 108] customary behaviour of nations, which are often less easy to detect and determine with precision. Law that comes from these sources is not so much ‘made’, like treaties, but ‘matures’, often following a long debate about whether a principle really is or is not law! The International Court of Justice (ICJ)26 may be ultimately called on to pronounce upon this question.

Sources of international environmental law27 4.7 The sources of international environmental law are the same as for those of international law more generally. However, it is important at the outset to appreciate that international law sources are less clear and more obtuse than sources of law in domestic legal systems such as legislation and case law. Sources of international law may be generally divided into ‘hard’ and ‘soft’ law. The most obvious example of ‘hard’ law is an international treaty or convention. There are, however, other principles of international law, accepted as law because the international community recognises that these principles have evolved into law through customary acceptance, or because they are general principles that should be accepted by civilised nations. The ICJ, located in The Hague, may declare such principles as ‘international law’. 4.8 ‘Soft’ law comprises principles (such as principles of sustainable development)28 that are gaining increasing recognition and acceptance within the international community, but could not yet be said to have attained hard law status. Frequent reference to such principles, for example in international treaties, and adherence to such principles by the international community of nations, may well eventually convert soft law into hard law; but the boundaries are at best rather hazy. A good example of hard law in the making, as it were, may be the precautionary principle.29 The frequent use of this principle in treaties30 may indicate customary acceptance of its international legal status by many nations. Other ‘soft law’ principles commonly referred to in international treaties are the principles of common but differentiated responsibilities, and assistance to developing nations to implement treaty obligations.31 ‘Soft law’ may also be used as a substitute for ‘hard law’ where international negotiations cannot agree on binding principles. For example, the Non-

binding Authoritative Statement of Principles on Forests, concluded at the Rio Conference in 199232 in the absence of agreement about a global convention, arguably serves only [page 109] to highlight the absence of any consensus on binding principles of law in this highly politicised area of natural resources management. 4.9 The traditional sources of ‘hard’ international law are contained in the Statute of the ICJ art 38(1), which provides that in deciding on disputes before the court, judges are to rely on the following: international conventions or treaties; international custom; general principles of law recognised by civilised nations; and judicial decisions and the teachings of the most highly qualified publicists. These sources of law govern nations in their relationships with each other. They do not of course bind individuals nor can they be used by individuals to demand the compliance of nations with international law, although in a domestic law setting they may be used to interpret domestic law or may otherwise influence domestic decision-making.33

International conventions/treaties 4.10 International conventions or treaties are the most common and straightforward of the various sources of international law. These are, in essence, agreements reached by nation states to regulate particular activities. They may involve a number of states (multilateral agreements) or as few as two (bilateral agreements). International conventions are usually concluded at conferences convened by international organisations. They tend to be reactive, rather than proactive, though some precautionary measures do, for example, creep into some treaties, such as the Kyoto Protocol, and the Biosafety Protocol, negotiated under the Convention on Biological Diversity, which deals with imports and exports of living modified organisms and potential risks to the environment. The subject matter of international agreements represents a negotiated outcome between all interested parties. Once agreement is reached, the international organisation adopts the text of the agreement and the particular convention is opened for signature and ratification. Nations become bound by

the terms of a particular convention, not by signature, but rather by the act of ratification; signature merely represents an intention to be bound, and in theory obliges the signatory nation to act in conformity with the principles of that treaty.34 The procedure for ratification is one that is determined by each contracting nation, depending on its own political system. In Australia, it is the federal government of the day, rather than parliament, which makes the decision to ratify a treaty,35 after consultation with the states.36 Nations become bound by the terms [page 110] of a treaty only when the act of ratification has been completed and the instrument of ratification has been deposited with the appropriate international organisation, usually the organisation that convened the diplomatic conference. 4.11 A treaty will come into force when a stated number of ratifications have been received, or when details about essential provisions are agreed. The Kyoto Protocol to the UNFCCC, for example, required that at least 55 parties to the Convention must have ratified the Protocol, and these ratifications had to represent at least 55 per cent of the total carbon dioxide emissions of ‘Annex 1’ parties (essentially developed nations) in 1990. Despite the fact that by 2004, 124 parties had ratified the Protocol, it had not entered into force because the ratifications represented only 44 per cent of Annex 1 emissions; both the United States and Russia had yet to ratify the Protocol. Finally, Russia ratified the Protocol, which was brought into force in February 2005. The United Nations Convention on the Law of the Sea 1982 (UNCLOS) took a further 12 years to come into effect, due to extended negotiations about access to deep seabed resources. Although a nation that does not ratify an international agreement cannot be directly bound by it, it may become indirectly affected. For example, the CITES places restrictions on imports of endangered species and their products on signatories to the Convention. Import restrictions may, of course, affect the entry into a nation of exports from non-signatories to the Convention. The provisions of CITES may also conflict with principles of ‘free trade’ sought to be relied on by non-signatories.37 4.12 Environmental treaties are more likely to be ‘framework’ treaties. The ‘framework’ treaty is more commonly used where nations that are basically comfortable with the general intent, or framework, of a treaty, fail to agree about the detailed specific provisions. A framework treaty therefore concludes the general principles to which the parties agree to be bound, but leaves open

to further negotiation precise details that have yet to be agreed. Further agreement on details will then be outlined in a protocol. A good example is the 1992 UNFCCC and the subsequent 1997 Kyoto Protocol. By contrast, the 1972 International Convention on the Protection of the World’s Natural and Cultural Heritage (the World Heritage Convention) contains detailed principles that regulate the conduct of the parties without the necessity to meet again to thrash out the binding nature of those obligations. 4.13 Nations can sometimes be exempted from certain treaty obligations through the concept of reservations. This allows nations that have difficulty with certain obligations in a treaty to specifically opt out of those provisions while still accepting the remainder of the obligations contained in the convention. The alternative, of course, is that a nation may simply decline to ratify a particular treaty. The Vienna Convention on the Law of Treaties explicitly allows for reservations, unless a particular treaty specifically disallows them. Both the Convention on Biological Diversity and the Framework Convention on Climate Change,38 for example, refuse to allow for reservations. [page 111] The inability to enter a reservation may lead some countries to enter interpretive declarations that explain their understanding of particular provisions of a treaty. In effect, they are saying that they are prepared to respect the provision so long as it is interpreted in line with their expectations. The legal status of these declarations is uncertain; they may have political appeal, but it is unlikely that a legal document, such as a treaty, could survive if every country was allowed to put its own spin on the same provision. Since the primary rule for interpretation of a treaty is that the objects and purposes of that treaty should govern interpretation,39 then it is likely that a state seeking to establish a contrary interpretation will bear the onus of proving that.

International custom 4.14 International custom, or customary law, is the second of the sources of international law provided for in the Statute of the ICJ. Indeed, until the late nineteenth century, international custom was the most common source of international law. International custom is, essentially, unwritten but generally accepted international practice on a particular matter.40 Before a custom can

reach this status, there are two important criteria that must be satisfied: state practice and opinio juris. 4.15 State practice really means both widespread and consistent practice. State practice cannot be proven merely by isolated occurrences involving only a handful of nations on a few occasions. State practice can, for example, be discerned from elements of state law; from consistent practice in relation to the negotiation of treaties and acceptance of obligations; and from diplomatic and ministerial representations and opinions. The concept of ‘good neighbourliness’, for example, which postulates that even when a nation is acting within its legal rights it should take account of the rights and interests of its neighbours, is widely regarded as a customary rule. It was referred to by the Arbitral Tribunal in the Lac Lanoux Arbitration (Spain v France),41 which involved the proposed diversion by France of a river flowing into Spain: ‘France is entitled to exercise her rights; she cannot ignore the Spanish interests. Spain is entitled to demand that her rights be respected and that her interests be taken into consideration.’ Treaties often formally define and develop customary rules. For example, several examples of international custom can be found in UNCLOS; in particular, the provisions relating to sovereign rights over the territorial sea and the protection of the marine environment (Pt 12). Many of these provisions had become law well before the Convention came into force. The frequent reference to Principle 21 of the Stockholm Declaration42 in the text of treaties is a good example of treaties continuing to build [page 112] on the principle that nations should not use their sovereign rights to inflict harm on other nations.43 4.16 Opinio juris is the mental element that must, in addition to state practice, be present. Opinio juris translates as a sense of legal obligation that nations should behave in the particular way reflected by the state practice. This may be displayed by formally expressed beliefs and opinions, and acceptance of treaty obligations. For example, the principle of ‘common but differentiated responsibility’44 could be viewed as customary law because of the widespread acceptance of this principle, and its regular inclusion in treaties. This principle, which first appeared in 1987 in the Montreal Protocol on Substances that Deplete the Ozone Layer, and later of course in the Kyoto Protocol, acknowledges, in effect, that because of their historic contributions to environmental degradation, developed nations should take much of the responsibility for ameliorative measures. This has translated in practice to

delaying phase-out periods for developing nations; for example, in relation to ozone-depleting substances; delaying the setting of time-weighted targets for emissions of greenhouse gases under the Kyoto Protocol; and requiring developed nations to provide financial and technological support to developing nations to realise treaty goals.45 Other examples of the application of customary law can be seen at work in the Danube Dam case (the Gabcikovo-Najgymaros Project),46 which was a dispute brought to the ICJ by Hungary, which was complaining about the actions of Slovakia in diverting the waters of the Danube River to a power project, taking 80–90 per cent of the water flow. In determining that the actions of Slovakia were unlawful in international law without the consent of Hungary, the ICJ relied on Hungary’s status as a lower riparian nation to an equitable and reasonable share of the flow of water — a principle of customary international law. The court also asserted that the parties were under a continuing duty to monitor and control environmental risks according to current standards. This is an illustration of the principle of customary law that a nation must act diligently in controlling risks to its neighbours that might result from operations carried out in its own territory. Another possible customary international rule, also referred to in this case, is the principle of prevention — a nation’s obligation to prevent damage to the environment, including within its own jurisdiction, and reduce and control activities that might threaten such damage. The court said:47 … in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

[page 113] In the Pulp Mills case (Argentina v Uruguay) the ICJ confirmed that ‘the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory’.48 This principle also appears in a broad range of environmental treaties.49 Naturally, a nation that persistently objects to a particular principle cannot be bound by it as customary law. For example, the United States has consistently objected to any notion that there is any such principle as the ‘right to development’. Conversely, a failure to object may severely restrict a state from denying adherence in future to a commonly endorsed principle.

General principles of international law

4.17 The third source of international law set out in the Statute of the ICJ is ‘general principles of international law recognised by civilized nations’. General principles of law should not be confused with general principles of policy or strategy, such as the Rio Declaration on sustainable development,50 which contains a number of fundamental principles that should govern international conduct. It is possible that some of these may, in time, ‘harden’ into rules of law (for example, the precautionary principle), but if so they are more likely to do so because of customary adherence. General principles of municipal law may help in identifying general principles of international law. One general principle that may be said to permeate legal relationships in both domestic and international arenas is the principle of good faith. The ICJ relied on this principle in the Nuclear Tests cases (Australia v France; New Zealand v France),51 for example, when holding France bound to unilateral statements it had made about stopping atmospheric nuclear tests. The recognition in most legal systems that a person damaged by the activities of another might be entitled to compensation also finds recognition in the rule, frequently referred to as Principle 21 of the Stockholm Declaration, and applied in the Trail Smelter Arbitration (US v Canada),52 that one country should not use its sovereign right to conduct activities within its own borders as an excuse or justification for inflicting harm on a neighbouring country. In domestic law, of course, this would be referred to as a ‘nuisance’.53 In practice, the development of international legal principles does reflect, to some degree, commonly accepted principles of domestic law, such as reparation for unlawful damage. 4.18 It is possible to discern general principles of international environmental law from the content of international agreements and endorsement by frequent reference [page 114] and support in practice. The principle of sovereign control over natural resources, but a corresponding obligation not to cause environmental damage to neighbouring states, as reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, would be an obvious example. The principles of sustainable development, precaution, prevention and polluter pays have arguably attained such a status. Other general principles include cooperation or ‘good-neighbourliness’ and common but differentiated responsibility (Principle 7 of the Rio Declaration).

The duty to cooperate has been said, for example, to be a fundamental principle in the prevention of pollution of the marine environment under not only UNCLOS but also general international law.54 The principle that developed and developing nations, while they might have the same (common) objectives, should accept different responsibilities for taking action on environmental issues, most obviously surfaces in the commitments demanded under the Convention on Climate Change and the Kyoto Protocol.55

Judicial decisions and the teachings of publicists 4.19 The Statute of the ICJ provides that as a subsidiary means of determination of decisions the court is to have regard to judicial decisions of domestic courts and tribunals and the teachings of the most highly qualified jurists; that is, eminent writers and commentators. The writings of eminent jurists are occasionally cited with approval in domestic courts, and may be persuasive in international tribunals,56 though international judicial authorities rarely specifically rely on them.

Compliance and enforcement 4.20 Enforcing legal obligations in international law is naturally more complex than in domestic law. There is no world environmental regulator to take countries to court and prosecute them, while the pursuit and application of civil remedies naturally tends to get tied up with international political relations. In essence, compliance with international agreements and other sources of international law lasts for as long as the participants decide; and the incentives for compliance often have more to do with international politics than with international legal responsibility. The attitude of Japan and other pro-whaling nations towards international bans on whaling is a classic example; the international community in effect allows the bans to be breached by a transparent exemption called ‘scientific research’.57 Acceptance of treaty provisions, and consequently compliance, also tends to be easier where a nation has no particular economic interest in the subject matter of the treaty. For example, few nations have any interest now in capturing whales or producing ozone-depleting substances. To some degree, the international community recognises that existing agreements need to be made more effective, and higher levels [page 115]

of compliance must be sought.58 Nevertheless, it is possible to claim compensation for environmental harm. In 1991, a United Nations Compensation Commission was established to determine claims in respect of Iraq’s unlawful invasion of Kuwait, and substantial claims for purely environmental damage have been awarded.59 4.21 Regular monitoring of international obligations may of course prevent breaches occurring. The Danube Dam and Pulp Mills decisions reaffirmed the principle of customary international law that environmental risks to neighbouring countries should be monitored and controlled, according to contemporary standards. Where treaties are concluded, sometimes an active secretariat or meetings of the parties may undertake an inspection or monitoring role, and devise procedures for prevention of incidents. The International Whaling Commission (IWC), for example, conducts extensive scientific review of permits issued for the taking of whales by member nations.60 The International Maritime Organization61 has been responsible for developing the certificates that are required under the International Convention for the Prevention of Pollution from Ships (MARPOL)62 to be carried on board ships to show that they have been inspected and have met the required standards for seaworthiness. Another form of monitoring is the requirement specified in many conventions that member states should submit regular reports on progress towards implementation, and advice about enforcement, to the convention secretariat or the conference of the parties.63 The collection and dissemination of information may be entrusted to a specialist body, such as the Subsidiary Body for Implementation established under the Framework Convention on Climate Change.64 Prevention may also be built into detailed standard setting as a mandatory aspect of an international agreement. MARPOL, for example, sets standards of seaworthiness for vessels that can only be met through proper construction; and requires installation of pollution prevention equipment to specified standards. 4.22 When breaches are detected, there are likely to be a number of stages through which compliance will be sought. The first is to try to get the transgressor to recognise its non-compliance and remedy it, through a process of ‘negotiation’.65 This, of course, is a ‘soft’ option through which it is hoped that the stability of, and respect for, [page 116]

the regime as a whole can be restored. Such a remedy may be attempted by (but is not restricted to) a conference of the parties; that is, a conference of the parties that have ratified a treaty under which it is claimed a breach has occurred. Breaches of international whaling regulations are traditionally handled in this way. More formal dispute resolution processes may involve an international organisation to whom a matter is referred for mediation or settlement. Mediation involves bringing the parties together to attempt a voluntary settlement; the mediator has no power to order resolution of the dispute. By contrast, judicial settlement represents a solution that is binding on the parties. Conciliation is a sort of ‘halfway house’, where the conciliator can suggest solutions to, but not impose them on, the parties. Conciliation is frequently employed as a method of dispute resolution in multilateral treaties; for example, UNCLOS.66 4.23 Binding arbitration is one form of binding settlement; the other is recourse to the ICJ. Treaties frequently give a range of options for binding settlement,67 and commonly establish a panel or tribunal to hear disputes in place of, or in addition to, the ICJ. The World Trade Organization Agreement 1994, for example, establishes its own specialist panel, an appeal body, and arbitration procedures for resolution of disputes, a number of which have involved trade and environment issues.68 UNCLOS gives the option of referring a dispute, depending on the elections made by a party,69 to an arbitral or special arbitral tribunal,70 the International Tribunal for the Law of the Sea71 or the ICJ. The Law of the Sea Tribunal heard the Southern Bluefin Tuna cases, Australia and New Zealand v Japan 39 ILM 1359 (2000), in which the tribunal prescribed provisional measures outlawing experimental fishing programs for stocks of tuna, based on a ‘precautionary approach’. Reference to the ICJ is usually a settlement procedure of ‘last resort’, particularly under treaties; indeed, the jurisdiction of the ICJ depends on agreement of all parties.72 Agencies of the United Nations can, however, ask the ICJ to deliver Advisory Opinions;73 perhaps more could be made of this potential for developing principles of international environmental law. [page 117] 4.24 Where, by comparison to environmental harm that is caused to a sovereign entity, harm to the ‘global commons’ occurs outside the sovereign jurisdiction of any particular nation, such as on the high seas or to the global

climate, the question arises whether such harm is actionable and, if so, by whom. In such a case it is possible that the ICJ will recognise the collective interests of all nations and therefore recognise the right of any nation (at least one that has ratified a relevant treaty) to seek to have an action declared unlawful. Weight is lent to this expectation by the way that modern treaties such as the Biodiversity and Climate Change Conventions refer to global resources, such as biodiversity, air quality and climate, as the ‘common concern of humankind’.74 In the Nuclear Tests cases (Australia v France; New Zealand v France),75 Australia and New Zealand argued before the ICJ that they had a right to bring a claim because France owed a general obligation to all nations to be free from nuclear testing, or that France was in general violation of the freedom of the high seas. Although this argument did not find majority support, there was some minority support for the concept of a right to bring an action on behalf of the international community, based on substantive obligations to the international community.76 This does not necessarily mean, however, that states that have not themselves suffered damage could demand actual reparation of the harm; it may be that the ‘remedy’ of the court in such an instance could be limited merely to a declaration that a breach has been committed, leaving it to diplomatic efforts to encourage remediation of that breach. Clearly, enforcement of international obligations is much more problematic than comparable domestic obligations. Some treaties do, however, provide for reparation for environmental damage. The MARPOL Conventions,77 for example, provide for strict liability and compensation funds financed by shippers.78

The sovereignty of nations 4.25 Sovereignty is important, because it is recognition by other nations of the right of a state79 to exercise exclusive legal control over the landmass of, airspace above and waters adjacent to, its territory. Sovereignty also entitles a country to exclusive [page 118] access to, and management of, its natural resources, with due regard to environment protection. UNCLOS art 193 states: ‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment’. Areas that fall outside the sovereign jurisdiction of any country,

such as the ‘high seas’, outer space and Antarctica, are often referred to as the ‘global commons’ or the common heritage of humankind. Management of natural resources in these areas must be by way of international treaties. The extent of sovereign control over waters adjacent to a state, as well as rules relating to commercial exploitation of natural resources in such waters, are set out in UNCLOS.80 The sovereignty of a nation extends to such coastal waters around the nation’s landmass as form the ‘territorial sea’, measured from the baseline. The breadth of this territorial sea may not exceed 12 nautical miles. The normal baseline is the low water mark,81 though geographical circumstances may mean that other methods have to be employed to calculate the baseline.82 A coastal nation may also protect against potential invasion of its sovereign territory through an additional contiguous zone, extending a further 12 nautical miles, or 24 miles from the baseline. The purpose of this zone is to prevent infringement of customs, fiscal, immigration or sanitary laws within sovereign territory or the territorial sea.83 This could be used, for example, to apprehend goods of quarantine concern. In addition, the Convention84 recognises the right of a coastal nation to claim an exclusive economic zone (EEZ) stretching to 200 nautical miles from the baseline, within which it can exercise exclusive rights to exploitation and conservation of natural resources, such as fisheries and deposits of minerals and petroleum, and conduct activities for the production of energy; for example, from gas production and wind and tidal power. Where the EEZ of different nations overlap, access should be determined by bilateral agreements,85 though if agreement cannot be reached, the dispute resolution process outlined in UNCLOS Pt XV may be brought into play.86 4.26 Australia has declared an EEZ and uses it to manage access to fisheries,87 minerals and petroleum.88 Access to offshore natural resources is also extended further by the acknowledgment in UNCLOS art 77 that a coastal state may exercise sovereign [page 119] rights over the continental shelf for the purpose of exploring and exploiting its natural resources, including mineral and other non-living resources and sedentary species of living resources. The continental shelf is the natural prolongation of the land territory of a nation to the outer edge of the shelf or 200 nautical miles from the baseline, whichever is greater.89 Australia’s continental shelf extends further, in some areas, than the EEZ.90 Australia also uses its territorial and EEZ rights for purposes of

environment protection under UNCLOS and other more specific treaties, such as those that govern dumping of oil and other wastes at sea.91 Rules of international law even allow pursuit and capture of vessels on the high seas that have been involved in illegal operations in Australian waters; and Australia has used such powers to apprehend and forfeit a foreign vessel proved to have been unlawfully taking the scarce Patagonian Toothfish.92 UNCLOS states that the management of living resources in the EEZ should promote maximum utilisation and aim to achieve maximum sustainable yield.93 The maximum sustainable yield of a species may, of course, be set at zero, depending on environmental and economic factors; it is recognised that marine mammals in particular may be managed in a stricter way than fisheries.94 4.27 Australia has declared an Australian Whale Sanctuary95 and prohibited the killing, injuring and taking of cetaceans either within the sanctuary or outside it.96 Foreign whaling vessels need permission to enter an Australian port.97 The agreement reached under the International Convention for the Regulation of Whaling, of course, recognises the right of whaling nations, particularly Japan and Iceland, to issue permits to take specified species and quantities of whales for ‘scientific research’.98 Nevertheless, domestic law is paramount in Australia. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116, the Full Court of the Federal Court allowed the appellants to serve papers on a [page 120] Japanese company claiming breaches of the domestic prohibitions on whaling within the Australian Whaling Sanctuary,99 overruling the earlier decision of the Federal Court to refuse leave on the basis it might trigger a diplomatic incident.100 The plaintiff’s attempts to serve the papers, however, failed because the Japanese government refused to serve the respondent company, arguing it did not recognise Australia’s assertion of jurisdiction over the Antarctic waters in which the incident had occurred. After the plaintiff was allowed by the court to serve papers by post and personal service, the Federal Court finally heard the matter, in the absence of the respondent, and ruled Japanese whaling to be unlawful in Australian Antarctic waters, according to national law, and issued an injunction to restrain it.101 Recently, fines totalling $1 million have been imposed for contempt of court in relation to this court order.102 Enforcement, of course, may be practically, or at least diplomatically, impossible.103

In relation to whaling in the Antarctic, the ICJ, in a separate action, ruled in favour of Australia’s argument that Japan’s whaling program was not in fact designed and carried out for scientific research purposes (as permitted under the International Convention for the Regulation of Whaling 1946), and ordered that Japan must revoke current whaling permits and refrain from issuing any more.104 At its recent annual meeting, the IWC passed a resolution, proposed by New Zealand and supported by Australia, giving the IWC’s Scientific Committee a greater role in issuing scientific permits and determining whether proposed research programs meet the criteria set down by the ICJ. 4.28 While a country might have exclusive powers within its own borders, however, this does not entitle it to use its sovereign powers so as to impact adversely on the sovereign territory of another nation. In the Trail Smelter Arbitration (US v Canada),105 in which the United States sued Canada for polluting emissions of sulphur emanating from a smelter in Canada that were impacting on the environment in the United States, the Arbitral Panel said: ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. Australia, of course, is lucky enough not to have common territorial borders with any other nation; though in so far as the [page 121] use of its territory is capable of causing harm outside its borders (for example, through deep seabed exploration for oil and the possibility of a blow-out)106 Australia must still be mindful of these international obligations. 4.29 The concept of sovereignty explains how other countries recognise Australia’s legal right to control the territory within its borders; however, it has no bearing on how Australia decides to allocate or delegate that authority among various levels of government. The conferment of legal powers on states and territories is a matter entirely for Australia to determine. In international law, therefore, the Commonwealth of Australia is recognised as the sovereign legal entity, exercising control over Australia’s landmass and coastal waters. Australia’s internal arrangements for power sharing with the states are not the concern of international law.107

Global trade and environment protection

4.30 Environment protection and exhaustion of natural resources are issues that cut across the global principle that world trade should basically be ‘free’ and without constraints.108 World trade rules are administered by the WTO, and the principal treaty is the General Agreement on Tariffs and Trade (the GATT). Since multilateral environment protection treaties, such as the Convention on Biological Diversity, the Framework Convention on Climate Change, the Vienna Convention on the Protection of the Ozone Layer, the Basel Convention on the Trade or Transportation of Hazardous Waste across International Borders and the CITES, naturally attempt to curb world trade in certain products, or impose discriminatory burdens on certain countries,109 then the WTO has to factor environment protection into implementation and enforcement of its rules on global trade. One outcome of the 1994 Uruguay Round of Multilateral Trade Negotiations was the creation of a new Committee on Trade and Environment (CTE). The CTE is obviously aware and mindful of the potential of multilateral environmental conventions to conflict with GATT rules, particularly by violating the principle of non-discrimination or by allowing discrimination between domestic and imported products, but so far no formal disputes have surfaced over trade issues arising under these Conventions. If they did, it is likely that the solution would be to apply the principle lex specialis — a principle of international law that if all parties to a treaty conclude a more specialised treaty, the provisions of the latter prevail over those of the former; in other words, the provisions of specialised environment protection treaties would prevail over inconsistent provisions of the GATT. Trade discrimination against countries that have [page 122] not ratified the ‘offending’ environmental treaty, however, would probably be dealt with under the dispute resolution procedures of the GATT, applying art 20. 4.31 GATT art 20 contains an exemption couched in the following terms: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health; … (f)

imposed for the protection of national treasures of artistic, historic or archaeological value;

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption …

Countries that claim this exemption tend to be viewed with suspicion in case their motives are trade related (favouring their own producers) rather than based legitimately on resource management, and the Disputes Resolution Panels of the WTO have had to determine a number of cases in which the use of art 20 has been challenged by other affected parties. In the process, the panels have gradually become more acquainted with environmental realities, and this has started to reflect in their determinations, in which they have begun to lay down rules on which parties can legitimately take action under art 20. 4.32 In Tuna/Dolphin 1 (Mexico v USA),110 the United States imposed prohibitions on imports of yellow-fin tuna and tuna products originating from Mexico, concerned about dolphin mortalities that occurred during the process of capture. The panel held that these import restrictions could not be justified under art 20. In relation to art 20(b), even if this allowed the United States to react to events outside its own jurisdiction, the United States had not shown that the measures were necessary or that it had exhausted all reasonable options for resolving the matter in a manner that was compatible with the GATT. In addition, art 20(g) could not be applied extrajurisdictionally; the restriction on taking measures only in conjunction with domestic measures clearly showed that the United States could only control production or consumption of exhaustible natural resources that were actually under its jurisdiction. However, even if that were wrong, the US conditions in any event had not been aimed primarily at the conservation of dolphins. Further, the GATT obliged the United States to treat tuna products from Mexico no less favourably than tuna products from it. The method of capture of the tuna could have no relevance to the obligation with respect to the treatment of the product. These findings illustrated a restrictive interpretation of the purpose of the art 20 exemptions, and called into question the ability of the GATT resolution process [page 123] to handle the environmental consequences of ‘free trade’. Tuna/Dolphin II111 was an action brought by the European community, among others, to challenge the US embargo on banned tuna imports from ‘intermediary nations’; that is, imports of prohibited tuna products coming via a third party nation rather than directly imported from the producer. The importance of this case lies in the more detailed analysis given by the panel to the purpose and meaning of the art 20 exemptions. First, the panel accepted that a policy

to conserve dolphins was a policy to conserve an exhaustible natural resource; second, that such a policy could apply to resources that were not presently depleted. In other words, a precautionary approach could be justified. Third, and contrary to the first panel ruling, the panel accepted that the exhaustible natural resource could be located outside the jurisdiction of the country taking the trade-related measure. Fourth, however, in relation to the requirement that the trade-related measures must be aimed primarily at the conservation of the exhaustible natural resource, the panel concluded that the primary aim of the measure was to force other countries to change or adopt policies and practices related to tuna capture, and that this primary aim was not justifiable under art 20. Both the direct embargo and the intermediate nations’ embargos were unlawful for this reason. Arguably, this decision on the policy basis of the embargo could make it virtually impossible for any country to unilaterally apply trade-related restrictions relying on art 20. Perhaps this was the result the panel wished to convey — encouraging parties with disparities in environmental policies to resolve trade-related disputes within the overall framework of the GATT rather than by resort to art 20. Certainly, it appeared worried about the ability of nations to react unilaterally to issues of resource conservation by developing trade-weighted responses. Interestingly, following agreement between the United States, Mexico and other nations to phase out by 1994 the use of ‘dolphin-unfriendly’ nets, the United States lifted its embargo. An international Agreement on the International Dolphin Conservation Program was also concluded in 1999 and further amended in 2009.112 Arguably, this might not have occurred without the unilateral action taken by the United States, which had been trying for 20 years to reach agreement on this matter. The Tuna/Dolphin Cases I and II were determined before the current WTO regime,113 and in the event these decisions have been overtaken by subsequent decisions of the WTO Appellate Body.114 4.33 The Reformulated Gasoline case115 (Brazil v USA) challenged the US Gasoline Rule, a regulation introduced to provide for environmental standards for gasoline [page 124] production and sale. The Rule imposed statutory baselines on imported fuel, but allowed US producers to establish their own baselines. The argument by the United States in favour of the uniform baseline imposed on foreign

entities was difficulties in administrative verification of individual baselines. The Appeal Panel held that clean air was an exhaustible natural resource that could be depleted, but there was no direct connection between the less favourable treatment of imported gasoline and the goal of improving air quality. The measure was not therefore primarily aimed at conservation of the natural resource. On appeal from the Appeal Panel to the Appellate Body, the Appellate Body ruled that the panel had erred in concentrating on the less favourable treatment of importers; the correct test was whether the measure itself was primarily for conservation. Second, the measure need only reasonably relate to the ends sought, such as to have a substantial relationship with conservation, not be ‘necessary’, as the panel had said in previous rulings. The Gasoline Rule was primarily aimed at conservation and introduced evenhanded treatment of both domestic and foreign entities; however, the Rule failed the test of exploring whether alternative measures were open to the United States to pursue its goals. The Appellate Body did not accept that administrative difficulties forced the conclusion that a uniform standard on foreign entities was necessary; neither had the United States attempted to reach cooperative arrangements with foreign governments. 4.34 The ruling of the Appellate Body about attempting to reach cooperative arrangements on environmental concerns before taking unilateral trade-related measures to resolve such concerns, surfaced again in the Shrimp/Turtle cases.116 This action concerned import restrictions placed by the United States on shrimp and shrimp products from four Asian nations because of concerns about the incidental capture of endangered sea turtles. The United States justified its extra-territorial approach by reference to the fact that the sea turtles were recognised as endangered in international law. The United States, however, had made no effort to negotiate with the complainants prior to the import ban. The Appellate Body accepted that the turtles were exhaustible natural resources, and that considerations of ‘sustainable development’ could inform provisional justification for extra-territorial jurisdiction. It was apparent, however, that the United States was placing embargos on imports of shrimps caught by acceptable means but in waters of nations that had not been ‘certified’ as compliant. It was not acceptable, said the Appellate Body, for one nation to use an economic embargo to require other nations to adopt similar regulatory measures without taking into consideration the different conditions that might exist in other member nations. Moreover, the fact that the United States had made no attempt to negotiate with the complainants, or

seek alternative courses of action, clearly indicated discriminatory treatment of the complainants. The United States subsequently revised its approach to accept a complementary, if not identical, regulatory regime and entered into negotiations with the complainants. [page 125] Malaysia subsequently argued that the United States should not only negotiate but conclude an agreement before entering into unilateral trade restrictions. The Appellate Body held that serious, good faith negotiations were enough; the requirement for a concluded agreement would effectively allow a nation to impose an individual veto on a trade-related restriction. Further, that since the revised US guidelines now enabled the United States to take into account the different circumstances of individual nations, the US measures were now valid (although of course the application of those measures to individual nations may still raise questions of unjustifiable discrimination). 4.35 Article 20(b) has since been held by the Appellate Body to justify French bans on asbestos and products containing asbestos: the Asbestos case (Canada v France).117 Importantly, the Appellate Body said that in evaluating scientific evidence used to determine whether such a ban was justified, it was not required that a decision should be taken on the preponderance of the evidence; rather, it was enough that the member had relied, in good faith, on respected and qualified scientific sources even if the opinions of those sources represented a divergence from the accepted majority view. 4.36 Articles 20(b) and 20(g) may well be used to justify measures aimed at the reduction of greenhouse gases. The admission by the Appeal Panel in the Reformulated Gasoline case that ‘clean air’ is an exhaustible natural resource, coupled with the reasoning in the Tuna and Shrimp cases, suggests that appropriate measures designed to protect exhaustible natural resources from the impacts of climate change would be justifiable under art 20.118 In Brazil — Retreaded Tyres,119 a case in which the European Union challenged an import ban by Brazil on retreaded tyres, the Appeal Body admitted that global environmental problems might need to be tackled with a multiplicity of interacting measures, of which trade restrictions could be part. The Appellate Body also upheld the initial panel’s finding that the import ban was provisionally justified as ‘necessary’ within the meaning of art 20(b). The panel ‘weighed and balanced’ the contribution of the import ban to its stated objective, taking into account the importance of the underlying interests or values. The Appeal Body also agreed with the panel that none of the less trade-

restrictive alternatives suggested by the European Communities constituted ‘reasonably available’ alternatives. In the event, however, the Appellate Body upheld the European Union’s complaint that Brazil could not use art 20 to ban imports of retreaded tyres, because the measure would be applied in an arbitrary and unjustified manner and constitute a disguised discriminatory restriction on international trade. Nevertheless, these findings suggest that the more important the goal, the more likely it is that the level of protection to achieve that goal will be accepted, and the more likely it is that less trade restrictive alternatives will be rejected as not being able to achieve the projected goal. Importantly, however, if a trade restrictive measure displays [page 126] no obvious environmental advantages over a non-restrictive alternative, it may not survive the test of being non-discriminatory.120 4.37 The coming into effect of the WTO in 1995 also brought with it, as well as the GATT, the Agreement on Technical Barriers to Trade (TBT Agreement), which entered into force in 1995. This Agreement applies to ‘technical regulations’ that lay down production methods or characteristics, compliance with which is mandatory, including packaging and labelling of products. Technical regulations should ensure that imported products are treated no less favourably than domestic or any other imported products, and should not be adopted or applied with a view to placing obstacles in the way of international trade. In Tuna/Dolphin III,121 Mexico complained about US labelling requirements for ‘dolphin safe’ tuna. The United States argued that the ‘dolphin safe’ label was not mandatory to enter the US market, but by a majority the panel rejected this, arguing that the regime was in effect mandatory because the label could only be used if certain conditions were met. The contrary argument that such a requirement is necessary for labelling schemes to prevent non-compliant products using the scheme was seized upon by the dissenting panellist. The practical effect of this decision is difficult to predict, though it does raise doubts whether many eco-labelling schemes would survive the test applied by the panel.122 4.38 Health and safety measures with the potential to impact on traderelated issues are dealt with in the WTO Agreement on Sanitary and Photosanitary Measures (SPS Agreement).123 The Agreement requires members to provide scientific justification, based on risk assessment, for trade

restrictions that are based on grounds of health and safety, and to apply such measures only to the extent they are necessary. The Beef Hormones case124 arose out of a European Communities ban on imports of meat or meat products from cattle fed with certain hormones to promote growth. The Appellate Body ruled that the burden fell on the complainants to prove a prima facie inconsistency with the SPS Agreement, but that adoption of a standard higher than the international standard demanded a risk assessment. The SPS measure could be based on a divergent minority view. However, the EC risk assessment in this case did not support the import prohibition; the scientific evaluation was of too general a nature. Failure to conduct a proper risk assessment was also the central feature of the Australian Salmon case (Canada v Australia),125 which arose out of a ban by Australia [page 127] on the importation of salmon products from Canada, on the basis that importation of Canadian salmon could result in the establishment of exotic diseases in Australia. The Australian decision was rejected by the Appellate Body because it was not based on a proper risk assessment and was more trade restrictive than necessary to achieve SPS protection. A risk assessment should not only evaluate the possibility that an exotic disease might enter the country and spread, but also the likelihood of that happening. A similar conclusion was reached in the Biotech Dispute, USA v EC126 in which European moratoria on biotechnology approvals was held by the Appeal Panel not to be based on proper risk assessment. 4.39 Australia, of course, is vitally concerned to repel imports of any description that might threaten the Australian environment. The Quarantine Act 1908 (Cth) (now repealed) enabled the Australian Quarantine Inspection Service (AQIS) to restrict imports into Australia of biodiversity and biodiversity products if compelling scientific evidence suggested there might be a serious risk to the environment. The risk was to be measured by an import risk analysis (IRA). The Australian Salmon case demonstrates, however, how unilateral action taken by Australia can result in international repercussions based on the GATT.127 This fear surfaced again in ‘Australia — Measures Affecting the Importation of Apples from New Zealand’, 128 in which the IRA produced by Australia to justify detailed restrictions on importation of New Zealand apples, based on possible infection with pests and diseases, including fire blight, was held to be inconsistent with various provisions of the SPS. The IRA

conclusions were not objectively based on the scientific evidence because they overestimated or exaggerated certain risks and consequences. The Quarantine Act has now been replaced with the Biosecurity Act 2015 (Cth).129 This Act deals with managing biosecurity risks from pests130 and diseases that may be in goods, vehicles or on premises. The Act confers extensive powers on biosecurity officers to assess the level of biosecurity risk associated with goods, and to monitor, respond to and control those risks.131 The Act also provides a mechanism for prohibiting certain [page 128] goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity IRA and import permits. A biosecurity IRA is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, to a level that achieves the appropriate level of protection (ALOP) for Australia.132 The ALOP is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero, in accordance with Australia’s rights and obligations under the SPS Agreement.133 Where tradeable commodities are not, or are only incidentally, involved, then environmental restrictions are more easily justified. For example, after many years of concern, the international community has concluded a treaty addressing the threat posed by introduction of marine pests in the ballast water of visiting vessels.134 Australia ratified this treaty in 2005 and has been developing National Ballast Water Management Arrangements135 to manage the risks posed by such operations. Management and control over ballast water is now governed by Ch 5 of the Biosecurity Act 2015 (Cth). Australia also has an Australian Weeds Strategy,136 partly designed to prevent the introduction and movement of plant species that are invasive under Australian climatic conditions. 4.40 The recognition that principles of ‘free trade’ should not be allowed to result in unjustifiable, or unsustainable, impacts on exhaustible natural resources, or compromise appropriate standards relating to health and safety, is also part of the approach to the principle of ‘free trade’ embodied in the Australian Constitution s 92.137 In the end, the central issue, in both international and domestic law, is whether trade-related restrictions genuinely address crucial issues of natural resources management or whether they are

indeed designed to apply disguised protectionist measures to domestic interests.

The influence of international law in Australia 4.41 International law and policy exert a strong influence on the development of both domestic environmental policy and domestic law,138 including the resolution of disputes, but they have no automatic application in Australia. Domestic law prevails in this country.139 While Australia remains answerable to the international community [page 129] about its own performance under treaties Australia has ratified, and is subject generally to international customary law and general principles of law, the domestic law of Australia is determined by our own parliaments. To be effective in this country, therefore, international law must be translated into Australian law by domestic legislators,140 federal and state. The majority of federal environmental legislation, in fact, reflects the content of international agreements; there is very little federal environmental law that does not spring from international obligations. The table set out at 5.12 shows the treatybased sources of Commonwealth legislation, the detail of which is discussed in following chapters. 4.42 State parliaments may also take a cue from international developments. New South Wales, for example, was the first jurisdiction in Australia to legislate a response to climate change.141 As noted at 2.46 the Australian Capital Territory and Victoria have legislated for human rights, while principles of sustainable development appear in legislation in every jurisdiction.142 States also frequently enact ‘mirror’ legislation to carry out federal legal responsibilities under international conventions by agreement with the Commonwealth. This is particularly the case in relation to the Commonwealth’s international responsibilities to control pollution and dumping in coastal waters.143 4.43 Not all international obligations or matters of concern, however, find their way into domestic law. Climate change and management of greenhouse gases are a good example; it has taken a long time for some of the substance of international policy approaches and legal obligations to appear in legislation in Australia.144 Where domestic law does not reflect international obligations,

it is quite clear that the substance of those international legal obligations simply is not enforceable in Australian courts.145 The fact that Australia has, however, ratified an international treaty, even if it has not enacted its provisions into domestic law, may give citizens, absent any contradictory legislative or executive intent, a ‘legitimate expectation’ that the treaty provisions will be applied; and if they are not to be applied a person affected may be entitled at least to be informed and allowed to make representations on their own behalf.146 Decisions by Australia as to whether it will comply with international environmental policy reflect, of course, domestic politics; and this may well conflict with the desire to be seen internationally as a solid environmental performer that has a legitimate and respected role in helping to develop future international environmental policy. The international community tends to shun non-performers and those who lack commitment, and their influence in the international arena tends to diminish. However, on the other hand, the international community does not elect Australian [page 130] governments, so international policy may have to be made with one eye on what is happening ‘back home’. The differing attitudes of the Howard and Rudd governments to ratification of the Kyoto Protocol is a good example of such political considerations in action. Whereas Howard preferred to be influenced by domestic considerations, refusing to ratify the Protocol because of the absence of reciprocal undertakings by some developing nations, Rudd openly embraced ratification. 4.44 Australian courts, however, are prepared to interpret domestic legislation, and even the Constitution, in a way that fulfils Australia’s international legal responsibilities; indeed, where there is a choice, courts would prefer such a construction.147 Domestic interpretation legislation also confirms the relevance of treaties that are mentioned in legislation to the interpretation of that legislation.148 For example, in Commonwealth of Australia v Tasmania (1983) 46 ALR 625 (the Tasmanian Dam case), the High Court of Australia looked to the World Heritage Convention to explain the powers conferred on the federal Environment Minister by domestic legislation designed to prohibit construction of the Gordon-below-Franklin dam in south-west Tasmania. In Greentree v Minister for the Environment and Heritage (2005) 143 LGERA 1, the Federal Court looked to the RAMSAR Convention on Wetlands of International Importance to interpret requirements for specifying the boundaries of such a wetland, so as to

determine whether in fact there had been a breach of domestic legal requirements that any area within a Ramsar wetland should not be cleared without ministerial consent, in accordance with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). The approach adopted by the Full Court of the Federal Court in Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 also stressed that construction of the EPBCA should be informed by the international conventions it was intended to implement, but that such an approach would have to give way to any contrary indications in the legislation itself. It is not unlawful in this country for domestic law to breach an international convention.149 In fact, domestic legislation implementing the provisions of international treaties sometimes stipulates that, unless a contrary intention appears, expressions used in legislation bear the same meaning as in the relevant treaties.150 And since the Vienna Convention on the Law of Treaties 1969 art 31 declares that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ then ‘treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation’.151 Courts may also look to international law in developing [page 131] the common law, particularly where rules of international law express universal or fundamental human rights.152 4.45 A court or tribunal might also be influenced by principles of international law and policy even in the absence of any direct recognition in the particular domestic law in front of it. For example, in Leatch v National Parks & Wildlife Service & Shoalhaven City Council (NSW) (1993) 81 LGERA 270, the Land and Environment Court of New South Wales accepted the legitimacy of the precautionary principle, as a means of decision-making, even though the legislation in question neither referred to the principle nor required such an approach (but it did not forbid it). Stein J said that the principle was accepted in international law, recognised and supported throughout Australia, and was, moreover, a principle of common sense; and the fact that the legislation he was dealing with did not advert to it did not mean he could not consider or apply it. Since then, legislation throughout Australia has accepted the legitimacy of principles of sustainable development to inform decision-making, and the courts are being asked more frequently to

pronounce on the boundaries and the expectations inherent in this legislative intent.153 Principles of sustainable development also influence courts and tribunals in determining merits appeals that raise global issues such as climate change and renewable energy; some examples are given in Chapters 8–22. In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at 35–50, the court sought guidance from international sources to more precisely define the role of, and process for applying, the precautionary principle in a merits review.154 4.46 Policy development in Australia may also be influenced by the law and policy of other nations. In the early years, environmental law was undoubtedly influenced by both British and American sources. Pollution laws introduced in the 1960s and 1970s clearly drew on British law.155 Equally as obvious, the federal regime for environmental impact assessment (EIA)156 introduced in the Environment Protection (Impact of Proposals) Act 1974 (Cth) was influenced heavily by the US National Environmental Policy Act 1969 (NEPA). Today, the influence is more squarely focused on Europe. As a ‘federation’ of some 27 independent sovereign nations, environmental policy determined by the European Union carries enormous weight. The Australian federal government’s proposals for a (now defunct) Carbon Pollution Reduction Scheme (CPRS),157 which included an emissions trading scheme, and linked proposals for renewable energy targets (RETs) and energy efficiency, were heavily influenced by the experience gained in Europe as the first block of countries to implement carbon [page 132] trading,158 renewable energy159 and energy efficiency schemes.160 The growing demand for extended producer responsibility (EPR) or product stewardship schemes161 is also fuelled by European directives162 that place responsibility for dealing with ‘end-of-life’ products firmly on designers, producers and distributors of those products. Equally, of course, Australia may also be said to have led the world in the implementation of principles of sustainable development163 and in the creation of specialist environmental courts.164 Clearly, experience and learning is not just a one-way street.

1.

John Donne (1572–1631), Devotions Upon Emergent Occasions, Meditation XVII.

2.

See 4.30 and following.

3.

See 4.5.

4.

Gagarimabu v Broken Hill Pty Co Ltd [2001] VSC 304 (the case was eventually settled by BHP). And see Kaye, ‘Transnational Environmental Litigation’ (2007) 24 EPLJ 35.

5.

Discussed in Chapter 18.

6.

See 4.7 and following.

7.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

8.

Horta v Commonwealth (1994) 181 CLR 183.

9.

See .

10. See . 11. See . 12. See . 13. Sands et al, Principles of International Environmental Law, Cambridge University Press, Cambridge, 2012, p 60. 14. See . 15. See . 16. On the GEF, see . 17. Operational Policy OP/BP 4.1 ‘Environmental Assessment’. Prototype Carbon Fund (PCF) and Global Environmental Facility (GEF) co-financed projects are also subject to the provisions of OP/BP 4.01. See also Gray, ‘International Environmental Impact Assessment’ (2000) Colorado Journal of International Law and Policy 83. 18. On the GEF, see . 19. See . 20. See . 21. On NGOs generally, see 2.27. 22. In Rainbow Warrior (New Zealand v France) (1990) 82 ILR 500, France was ordered to pay US$7 million in compensation for sinking a Greenpeace vessel in Auckland Harbour. 23. See . 24. See 4.36 and following. 25. See 4.14 and following. 26. See . 27. For detailed coverage, refer to one of the following excellent text books on all aspects of international environmental law: Birnie, Boyle and Redgwell, International Law and the Environment, Oxford University Press, New York, 2009; Fabra, MacKenzie, Sands and Peel, Principles of International Environmental Law, Cambridge University Press, Cambridge, 2012. 28. See further Chapter 8. 29. See further Chapter 8. 30. For example, United Nations Framework Convention (UNFCCC) on Climate Change art 3.3. 31. For example, UNFCCC arts 3, 4 and 11. 32. See further Chapter 8. 33. See 4.43 and following. 34. Vienna Convention 1969 art 18.

35.

This is also the position in the United Kingdom: see Blackburn v Attorney-General [1971] 1 WLR 1037.

36. Consultation on international treaty making by the Commonwealth with the states was one of the cornerstones of the Intergovernmental Agreement on the Environment 1992 (IGAE): see art 2.5.2. And on the IGAE generally, see 5.64. See also Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995. 37. See further 4.32 and following. 38. Article 24. 39. Vienna Convention 1969 art 31. 40. The respected but non-binding International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2000) attempts to codify customary rules. 41. (1957) 12 RIAA 285. See also the Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4. 42. Declaration of the United Nations Conference on the Human Environment 1972 art 21: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ 43. See also the Trail Smelter Arbitration (USA v Canada), mentioned at 4.17. 44. That is, that all nations have similar responsibility for environment protection, but cannot deliver on that responsibility in the same way. This principle enables developing nations to accept principles of responsibility without the corresponding obligations to do as much about fulfilling them as developed nations. 45. For example, Framework Convention on Climate Change art 4 (3–5); Convention on Biological Diversity arts 16 and 20. 46. (1997) ICJ Reports 7. 47. (1997) ICJ Reports 7 at 78 [140]. 48. [2006] ICJ Reports 113 at [101]. 49. For example, Framework Convention on Climate Change art 2; Convention on Biological Diversity Preamble and art 1. 50. See 8.7 and following. 51. (1973) ICJ Reports 99 and 135; (1974) ICJ Reports 253 and 457. 52. (1939) 33 AJIL 182. 53. See 4.20 and following. 54. The MOX Plant case (Ireland v United Kingdom) (Interim Measures) Order 41 ILM 405 (2002). 55. See further Chapter 18. 56. See, for example, the Trail Smelter case at 4.17; and the judgments of Judge Weeramantry in the Danube and Nuclear Test cases at 4.16 and 4.17. 57. International Whaling Convention 1946 art VIII. 58. See ‘Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty First Century’, adopted by the UNEP Governing Council in 2001. Conferment of ‘environmental democracy’ under the Aarhus Convention (see 4.5) can also lead to

international obligations becoming indirectly taken up and enforced in domestic law. 59. See Sands, ‘Compensation for Environmental Damage from the 1991 Gulf War’ 35(6) Environmental Policy and Law 244. 60. See . 61. See . 62. See 15.115 and following. 63. For example, Convention on Biological Diversity art 26; International Convention for the Regulation of Whaling art IX; Framework Convention on Climate Change art 4(1)(j). 64. Article 10. 65. For example, Framework Convention on Climate Change art 14; Convention on Biological Diversity art 27. 66. UNCLOS art 284; Annex V. 67. Convention on Biological Diversity art 27; Framework Convention on Climate Change art 14; UNCLOS art 287. 68. See 4.32 and following. 69. UNCLOS art 287. 70. UNCLOS Annex VII and Annex VIII. 71. UNCLOS Pts XI and XV; Annex VI. 72. For example, UNCLOS art 287; Convention on Biological Diversity art 27; Framework Convention on Climate Change art 14. This limit on the jurisdiction of the ICJ is illustrated by the Fisheries Jurisdiction Case: Spain v Canada (1998) ICJ Reports 432, where Canada effectively refused to allow the ICJ to hear the case. On the other hand, in 2014 the Court was able to go ahead and determine the dispute between Australia and Japan over whaling in the Antarctic; see . 73. For example, the request by the UN General Assembly for an Advisory Opinion on the ‘Legality of the Threat or Use of Nuclear Weapons’ (1996) 35 ILM 809 and 1343. 74. Convention on Biological Diversity Preamble; Framework Convention on Climate Change Preamble. 75. (1973) ICJ Reports 99 and 135; (1974) ICJ Reports 253 and 457. 76. In the Behring Fur Seals Arbitration (1898) 1 Moore’s Int Arbitration Awards 755, the United States also claimed to be acting for the benefit of mankind in asserting a right to challenge the taking of fur seals outside US territorial limits. The claim was rejected, although it did spawn future agreements and ultimately a binding treaty. 77. International Convention for the Prevention of Pollution from Ships 1973 and International Convention on Civil Liability for Oil Pollution Damage 1981. 78. Many changes to MARPOL over the years have been fuelled by reactions to maritime disasters; for some references to these, and their impact on the development of MARPOL, see ‘The Origins of IMO’ (2012) at . For further discussion on the provisions of these Conventions, see 15.115 and following. 79. To be recognised as a state, a country must have (a) a permanent population; (b) a defined territory; (c) a government; (d) a capacity to enter into relations with other states: Montevideo Convention on the Rights and Duties of States 1933 art 1. 80. UNCLOS arts 2 and 3. 81. UNCLOS art 5.

82. UNCLOS arts 6–16. 83. UNCLOS art 33. 84. UNCLOS arts 55–57. 85. See, for example, Torres Strait Fisheries Act 1984 (Cth) based on the Torres Strait Treaty 1978 between Australia and Papua New Guinea. See also the Petroleum (Timor Sea Treaty) Act 2003 (Cth), establishing a Joint Petroleum Development Area, based on the Timor Sea Treaty 2002; and Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990, based on the Australia–Indonesia Zone of Cooperation Treaty 1982. See also Commonwealth of Australia v WMC Resources Ltd (1998) 194 CLR 1 discussed at 5.31. 86. UNCLOS art 74. 87. Fisheries Management Act 1991 (Cth). 88. Offshore Minerals Act 1994 (Cth); Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). 89. Subject to the restriction that this may never exceed 350 nautical miles from the baseline; or 100 nautical miles beyond the 2500 metre isobath (the line connecting the depth of 2500 metres); UNCLOS art 76. 90. For a map delineating Australia’s maritime zones, see . 91. Environment Protection (Sea Dumping) Act 1981 (Cth); Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). 92. See Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC 262; and Gullett, ‘Developments in Australian Fisheries Law: Setting the Law of the Sea Convention Adrift’ (2004) 21 EPLJ 169. Otherwise, legal powers, for example, to protect marine biodiversity in areas outside national jurisdiction, are problematic: see Pecot, ‘The Conservation of Marine Biological Diversity in Areas Beyond National Jurisdiction’ (2005) 22 EPLJ 459. 93. UNCLOS arts 61 and 62. 94. UNCLOS art 65. 95. Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 225. The sanctuary comprises all Commonwealth marine areas (s 24) including the EEZ, and coastal waters managed by the states or territories, subject to their agreement (prescribed waters, s 226). 96. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 229–232. 97. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 236. 98. Article VIII. For information on current permits, see . 99. See also McGrath, ‘The Japanese Whaling Case’ (2005) 22 EPLJ 250; McGrath, ‘Japanese Whaling Case Appeal Succeeds’ (2006) 23 EPLJ 333. 100. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664. 101. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 36. See also McGrath, ‘Injunction Granted in Japanese Whaling Case’ (2008) 25 EPLJ 77. 102. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275. 103. Enforcement is not assisted, of course, by the fact that no claims of sovereignty to any part of Antarctica or the waters that surround it are recognised in international law. Antarctica is part of the ‘global commons’, managed under the Antarctic Treaty 1959 and Protocol on Environment Protection 1991.

104. Whaling in the Antarctic: Australia v Japan. Available at . And see Stephens, ‘After the Storm: The Whaling in the Antarctic Case and the Australian Whale Sanctuary’ (2014) 31 EPLJ 459. 105. (1939) 33 AJIL 182; (1941) 35 AJIL 716. 106. See Wulf, ‘Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth): Consideration of “All Adverse Impacts”’ (2005) 22 EPLJ 296. 107. See generally Rothwell and Kaye, ‘A Legal Framework for Integrated Oceans and Coastal Management in Australia’ (2001) 18 EPLJ 278; and on ‘cooperative federalism’, see 5.54 and following. 108. See generally Fijalkowski and Cameron (eds), Trade and the Environment: Bridging the Gap, Earthscan, London, 1998. 109. For example, by requiring parties to these agreements to apply more restrictive trade provisions against non-parties than to fellow-signatories. 110. 30 ILM 1594 (1991). 111. 33 ILM 839 (1994). 112. See . 113. For the 1994 ‘Decision on Trade and Environment’, part of the agreement to establish the WTO, see . 114. The latest finding on this long-running dispute concludes that the United States has not brought its dolphin-safe labelling regime for tuna products into conformity with the recommendations and rulings of the Dispute Settlement Body; see . 115. 35 ILM 603 (1996). 116. 33 ILM 118 (1999), ‘United States — Import Prohibition on Certain Shrimp and Shrimp Products’, Report of the Appellate Body, 22 October 2001. 117. ‘European Communities — Measures Affecting Asbestos and Asbestos-containing Products’, Report, 12 March 2001. 118. And see Tran, ‘Using GATT, Art XX to Justify Climate Change Measures in Claims under the WTO Agreements’ (2010) 27 EPLJ 346. 119. Brazil — Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, AB-2007-4. 120. See Kruse, ‘Climate Change Regulation in Australia: Addressing Leakage and International Competitiveness Consistently with the Law of the WTO’ (2011) 28 EPLJ 297. 121. United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WTO Doc WT/DS381/R (US-Tuna III) 2011. 122. See Tran, ‘Just Another Fish in the Sea? The WTO Panel decision in US-Tuna III’ (2012) 29 EPLJ 45. 123. 33 ILM 28 (1994). 124. ‘EC — Measures Concerning Meat and Meat Products (Hormones)’, Report of the Appellate Body, 16 January 1998. 125. ‘Australia — Measures Affecting Importation of Salmon’, Appellate Body Report, 20 October 1998. For discussion of similar issues, see also ‘Japan — Measures Affecting Agricultural Products’, Appellate Body Report, 22 February 1999. 126. ‘European Communities — Measures Affecting the Approval and Marketing of Biotech Products’, Appeal Panel Report, 29 September 2006. For a note on this case, see McDonald, ‘Look While You

Leap: The WTO Biotech Dispute Panel Report’ (2006) 23 EPLJ 417. 127. In Conservation Council of South Australia v Development Assessment Committee (No 3), the rejection of a tuna farming venture by the Environment, Resources and Development Court (ERD Court) in South Australia, because of fears that importation of pilchards as feedstock might result in the introduction of exotic diseases, to the detriment of the local environment, was subsequently overruled by the South Australian government. 128. Report of the Panel, WT/DS367/R, 9 August 2010; Report of the Appellate Body, WT/DS367/AB/R, 29 November 2010. 129. Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 Sch 1. 130. Except in an emergency, the Act applies to pests (a) if the pest is capable of: (i)

infesting humans, animals or plants; or

(ii) acting as a vector for a disease; or (iii) causing disease in any other way; or (b) the pest is an invasive pest; Biosecurity Act 2015 (Cth) ss 25 and 26. 131. Biosecurity Act 2015 (Cth) Ch 6. 132. Biosecurity Act 2015 (Cth) s 166. 133. Biosecurity Act 2015 (Cth) s 5. 134. International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 135. See . 136. See . 137. See 5.42. 138. See Sir A Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ in G Lindell (ed), The Mason Papers, Federation Press, Sydney, 2007, pp 269–73. 139. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 36; FCA 36. 140. This is also the position in the United Kingdom: see Maclaine Watson v Department of Trade and Industry [1989] 3 All ER 523 at 545. 141. Electricity Supply Act 1995 Pt 8A (reduction of greenhouse emissions); and see further 18.39. 142. See Chapter 8. 143. See Chapter 16. 144. See further Chapter 18. 145. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 146. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 147. Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 147 ALR 42. See, however, 2.57 on the use of statutory aids to construction. 148. For example, Interpretation Act 1987 (NSW) s 34(2)(d); Acts Interpretation Act 1901 (Cth) s 15AB(2)(d); Interpretation of Legislation Act 1984 (Vic) s 35(b) (any matter or document that is relevant). 149. Horta v Commonwealth (1994) 181 CLR 183. 150. For example, Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) s 3(3).

151. Morrison v Peacock [2002] HCA 44 at [16]. 152. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J. 153. See Chapters 8 and 22. 154. See 8.73. 155. See Chapter 15. 156. See Chapter 11. 157. See Chapter 18. 158. See, for example, Directives on Monitoring and Reporting of Greenhouse Gas Emissions (EC 2004/180); (EC 2005/166); Directives Setting up an Emissions Trading Scheme (EC 2003/87) (binding guidelines setting out how industrial plants involved in the EU emissions trading scheme should measure and report their releases of greenhouse gases); (EC 2004/101) (allows firms involved in the EU emission trading scheme to gain extra carbon credits by funding abatement projects outside the EU). 159. See, for example, Directives on Energy from Renewable Resources (EC 2001/77) and Biofuels (EC 2003/30). 160. See, for example, Directives on Energy Performance of Buildings (EC 2002/91); Energy End-use Efficiency (EC 2006/32); Eco-design Requirements for Energy-using Products (EC 2005/32); Energy Efficiency Labelling Programmes for Office Equipment (EC Regulation 2001/2422) and Dishwashers (EC 97/17); Commission v Greece C-342/07 (failure to fulfil obligations under Directive 2002/91/EC on the energy performance of buildings). 161. See Chapter 16. 162. See, for example, EC Directives on Packaging Waste (94/62); End of Life Vehicles (2000/53) and Waste Electrical and Electronic Equipment (2002/96). 163. See Chapter 8. 164. See 2.72.

[page 133]

PART B Implementation of Environmental Law Overview Pt B.1 Law making in Australia is vested in a federal and different state and territory parliaments. Whereas state and territory parliaments have jurisdiction to enact laws only within their state or territory boundaries, the federal parliament has jurisdiction to pass laws anywhere within the recognised territory of Australia — a recognition that is conferred by the international community in accordance with fundamental principles of ‘sovereignty’. This means that potentially state and federal parliaments may enact laws with respect to the same subject matter. In order to avoid duplication and conflict between the federal and state jurisdictions, one of the primary tasks of governments has been to determine the relationship between them in respect of environmental management and protection. Although the basis of this relationship was settled some 20 years ago, to the effect that the federal government would take on legal responsibilities largely for domestic environmental issues that raised international implications, nevertheless new challenges such as the crisis facing the Murray–Darling Basin, climate change, and the uptake of principles of product stewardship, necessitate regular reappraisals of this relationship. Pt B.2 In Part B of the book we also look at some of the fundamental legal principles that govern the structure and content of environmental legislation. These are common to all jurisdictions; and while environmental legislation may differ markedly in its detail between different jurisdictions and from one piece of legislation to another, the concepts and principles on which the legislation is based are fundamentally the [page 134]

same, allowing for some quite obvious cross-fertilisation of ideas in legislation and in decisions by courts and tribunals in different jurisdictions. The concept of ecologically sustainable development (ESD) has become the main focus of environmental and natural resource management (NRM) policies, and therefore the primary objective of environmental legislation, commanding decision-making at all levels of government. Courts and tribunals have had to grasp the legal concept of ESD and give it some meaning in challenges based not only upon legal duties to consider or apply ESD, but also in merits appeals where the practical application of the principles of ESD can be teased out and used effectively to assess the potential impacts of projects and activities, and impose conditions that seek to achieve sustainable outcomes.

[page 135]

Chapter 5 Federal Governance and Environment Protection Introduction 5.1 Australia is a federation of six states and two territories that have created a national federal (Commonwealth) parliament and delegated to it power to make laws for the peace, order and good government of the Commonwealth.1 Including the Commonwealth there are nine central governments in Australia, all with law-making powers; and then, of course, there is local government and Australia’s external territories.2 In general, it may be said that legal responsibility for land use decision-making and natural resources management (NRM), and hence environmental management and protection, has traditionally lain with state and territory governments.3 The Commonwealth has no direct legislative powers in relation to the environment because in 1900, at the time the Commonwealth Constitution Act was passed, environmental protection was not an issue that occupied the minds of the legislators. As Crawford has remarked, ‘The drafters of the Constitution would have emphasised the immensity of the continent, the difficulties in “overcoming” it, rather than the fragility of many of its ecosystems or the problems in managing it once it had been overcome’;4 and since then proposals to insert an ‘environmental’ head of power into the Constitution via referendum have not been pursued.5 The only provision in the Constitution indirectly relating to the environment is section 100, which protects the rights of states and their residents to the reasonable use of the waters of rivers for conservation or irrigation against any laws of trade or commerce that might abridge them. This provision has never been applied successfully as a limit on Commonwealth power so its true potential remains unclear.6 In Arnold v Minister Administering Water Management Act 2000 [2010] HCA 3, s 100

[page 136] was held not to extend to underground waters in aquifers. The High Court commented that artesian water would not have been within the contemporary understanding of the concept of waters in rivers at the time of drafting the Constitution.7 On the other hand, powers that the Commonwealth does possess may be validly exercised for environmental reasons. The Commonwealth also remains legally responsible for its own land situated in the states and territories, vast marine areas and the conduct of its own administration. In the self-governing territories — the Australian Capital Territory, the Northern Territory and Norfolk Island — ministers have been granted executive authority in respect of environmental protection and conservation,8 and the territory legislative assemblies have power to enact their own laws with respect to those matters over which they have been granted executive authority. However, this arrangement is of political rather than legal effect; the legislation does not, and arguably could not, detract from the Commonwealth’s overall sovereign legislative authority over those territories.9 5.2 In general, it may be said that the states can legislate on all matters not specifically reserved to the Commonwealth by the Constitution. Since the only matters over which the Commonwealth has exclusive jurisdiction, in fact, are listed in s 52 (which relates basically to Commonwealth places and territories and the Commonwealth public service) and s 90 (the power to levy duties of customs and excise), power to deal with most environmental issues is effectively conferred concurrently on both the Commonwealth and the states, rather than on one level of government or the other.10 This means that for any particular issue, two sets of legislative controls may apply; for example, where threatened species are listed both under Commonwealth and state laws, any proposals that might significantly impact on them will need to comply with both state and federal requirements.11 To avoid unnecessary duplication of effort, however, the Commonwealth may effectively delegate environmental assessment (EA) processes to a state to undertake on behalf of the Commonwealth.12 [page 137]

Commonwealth legislative powers in respect of the environment

5.3 While the states can effectively legislate on almost anything within their borders, except those matters reserved exclusively to the Commonwealth, the Commonwealth cannot legislate outside the scope of the authority vested in it by the Constitution.13 Commonwealth powers to legislate are set out in the Constitution s 51, and in the event that Commonwealth legislation made in pursuance of one of these ‘heads of power’ conflicts with existing or future state legislation, Commonwealth legislation will prevail: Constitution s 109.14 There is no direct or explicit power in s 51 to enact laws for the environment, but this has not proved to be a restraint on Commonwealth powers to legislate in this area. The principal powers that may be used to promote environmental objectives include those relating to trade and commerce (s 51(i)); trading, financial and foreign corporations (s 51(xx)); and ‘external affairs’ (s 51(xxix)). Other powers such as finance and taxation (s 51(ii)), ‘people of any race’ (s 51(xxvi)), quarantine (s 51(ix)) and fisheries (s 51(x)) can all be used to justify environmental regulation. 5.4 These powers are of two types: purposive and non-purposive. A purposive power is one that only allows laws to be made specifically to further the object of the power. The external affairs power is of this type; laws based on this power must reflect an appropriate means of giving effect to specific matters of international concern.15 In the Tasmanian Dam case (Commonwealth v Tasmania (1983) 46 ALR 625), for example, laws that prohibited a wide range of activities in a world heritage area were interpreted as being inconsistent with the object of the World Heritage Convention, which was to enable decisions to be made that promoted world heritage values, but did not automatically require the prohibition of certain activities in world heritage areas. Laws that gave the minister power to prohibit such activities were, however, held to be an appropriate way of carrying out the purpose of the Convention. Non-purposive powers, on the other hand, allow the law to seek to further objects that are not specifically relevant to the power on which the law is based. Trade and commerce, corporations and taxation powers are of this type. This means that environmental restrictions or prohibitions that flow from laws relying on one of these heads of power will themselves be valid so long as the primary law can itself be classified as constitutionally valid. The purpose of the legislation (environmental protection) is irrelevant so long as the law actually rests on an available head of power. For example, in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, power to prohibit the export of mineral sands from Fraser Island for reasons including

environmental considerations, embodied in regulations16 made under legislation17 [page 138] based on the trade and commerce power, were held by the High Court to have been validly made, even though environmental restrictions are not in themselves matters of trade and commerce. Stephen J, speaking for the majority, said (at 12): In those instances in which the legislative power of the Commonwealth is granted in purposive terms … it is necessary, in determining constitutional validity, to have regard to purpose and this applies no less to administrative acts than to legislation. … But where the source of power is found in non-purposive subject matter, as in s 51 (i.) the same problem does not present itself. Thus once legislation addresses itself to the subject matter of the prohibition of exports, central to the trade and commerce power, a regulation implementing that prohibition will inherently be within subject matter; so also will be an administrative decision relaxing, or failing to relax, that prohibition in a particular case; so long as that is the nature of the decision it will be within power. … The source is trade and commerce with other countries and the stream, of legislation, regulation and administrative decision, flows from it and concerns one and the same subject matter, all within constitutional power. The administrative decision whether or not to relax a prohibition against the export of goods will necessarily be made in the light of considerations affecting the mind of the administrator; but whatever their nature the consequence will necessarily be expressed in terms of trade and commerce, consisting of the approval or rejection of an application to relax the prohibition on exports. It will therefore fall within constitutional power. The considerations in the light of which the decision is made may not themselves relate to matters of trade and commerce but that will not deprive the decision which they induce of its inherent constitutionality for the decision will be directly on the subject matter of exportation and the considerations actuating that decision will not detract from the character which its subject matter confers on it.

In other words, in exercising its powers under a non-purposive head of power, the Commonwealth is entitled to act for environmental reasons alone, even though the head of power used to justify the action may be, for example, trade and commerce. 5.5 In practice, Commonwealth environmental legislation often relies on various heads of power.18 Examples include the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) (external affairs, Commonwealth places); Environment Protection Nuclear Codes Act 1978 (Cth) (trade and commerce, corporations, and defence); Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) (external affairs, corporations); Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) (external affairs, corporations); and Antarctic Mining Prohibition Act 1991 (Cth) (external affairs, corporations). The National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) is expressed to rely on the corporations, census and statistics, external affairs and incidental matters

powers (s 4); the Renewable Energy (Electricity) Act 2000 (Cth) is clearly directed at corporations; while ‘offshore’ legislation such as the Environment Protection (Sea Dumping) Act 1981 (Cth), Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), Historic Shipwrecks Act 1976 (Cth) and Offshore Petroleum and [page 139] Greenhouse Gas Storage Act 2006 (Cth), may rely either on the external affairs power, or simply on the sovereign power of Australia to control its own offshore territory: Constitution s 122. The Biosecurity Act 2015 (Cth) lists the quarantine, external affairs, trade and commerce, fisheries, aliens, corporations, Territories, postal, sickness benefits and census and statistics powers.19 Legislation authorising Commonwealth financial assistance to the states for environmental purposes, such as the Natural Heritage Trust of Australia Act 1997 (Cth), may rely for validity on the Constitution s 96, which enables loans and specific purpose grants to be made to the states. Another power that the Commonwealth may seek to rely on is the uncertain ‘nationhood’ power,20 which may support, for example, legislation directed at environmental research. 5.6 The ability of the Commonwealth to rely on the enumerated s 51 powers to attract to itself authority to enact environmental legislation or impose environmental conditions on a wide-ranging set of activities has been actively challenged in the High Court on a number of occasions and, as a result, more recently enacted statutes in particular have been careful to express themselves as relying on as wide a range of s 51 powers as possible, so that if one particular power fails to attract validity, another might.21 For example, the Water Act 2007 (Cth) cites no less than nine different bases for the validity of the Act plus different heads of validity for various provisions within it.22 Since the heads of power in s 51 are not mutually exclusive, any one or more may be used to attract an exercise of federal legislative power. In other words, federal legislation frequently hedges its bets. From the Commonwealth’s point of view, the ability to rely on a wide range of powers has been useful in fending off constitutional challenges to environmental legislation; while from the states’ view, the irony is that legal challenges initiated by them to Commonwealth involvement in environmental issues has served only to enable the High Court to define or redefine the extent of Commonwealth–state powers in favour of the Commonwealth, thus not only upsetting a long-held notion that legislative

capacity in respect of environmental affairs rests primarily with the states, but also supporting the inevitable conclusion that Commonwealth power to legislate on environmental issues is not constitutionally restrained. 5.7 Legislative power does not, however, necessarily equate to, or translate into, political will; there are very good reasons, both practical and political, why the Commonwealth would not wish to ‘cover the field’ with environmental regulation. Since the heady days of constitutional challenges in the 1980s, and with the cooperation of the states and territories, a great deal of effort has gone into redefining the Commonwealth legislative role in relation to the environment. Consequently, attention [page 140] has been diverted away from potential constitutional challenges towards nationally agreed approaches to managing environmental issues.23 Indeed, more recent federal legislation may cite the fact that it incorporates a national cooperative approach,24 or provide that the federal law does not affect the concurrent operation of state laws.25 On the other hand, it may operate deliberately to the exclusion of state laws; however, this is usually with the agreement of the states.26 Nevertheless, realisation and recognition of the extent of Commonwealth power to legislate on environmental issues undoubtedly provides a solid basis of power on which to enter into and conduct negotiations with the states on national environmental policy.

The trade and commerce power 5.8 The Constitution s 51(i) allows the Commonwealth to make laws with respect to ‘trade and commerce with other countries and among the states’. This is significant for environmental objectives since most resource development — forestry, mining, agriculture and fisheries — as well as manufacturing enterprise is carried on for the purposes of overseas and interstate trade. This power enables the Commonwealth to require that export and import approvals be obtained for goods leaving and entering Australia,27 and has been interpreted as enabling, therefore, the Commonwealth to issue approvals conditional on environmental factors or refuse approvals altogether for environmental reasons. For example, in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, the High Court upheld the Commonwealth’s decision to refuse to grant export approval for mineral sands from Fraser Island on environmental and social grounds; while in Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257,

it was accepted that the Commonwealth could apply EA procedures under the (now repealed) Environment Protection (Impact of Proposals) Act 1974 (Cth) to a tourist development in Queensland for which foreign investment had been sought. 5.9 Using this power, the Commonwealth could also reach back through the production process by regulating methods of production of goods destined for interstate trade or export, so as to ensure compliance with desirable environmental standards. Products that are not designed, manufactured or produced in an environmentally friendly manner could be prohibited from interstate trade or export. Such an exercise of power is unlikely to be defeated by the argument that at the time of production such goods could not be identified as destined for interstate trade or export. The existence of such a power would help to balance out any lack of power [page 141] under the corporations power with respect to non-trading corporations. Lindell foresees a possible restriction to the use of this power — ‘the possible irrelevance of the environment to the subject matter of the commerce power, may continue to pose an obstacle to the use of the power to directly28 control mining or the production of goods even when they are carried on for export’ — but this potential problem is unlikely to prove critical because of the breadth of the corporations power (see 5.16), which extends to intrastate as well as export activities.29 The trade and corporations powers could, for example, be used to support Commonwealth legislation introducing the concept of ‘extended producer responsibility’ (EPR) or ‘product stewardship’; that is, continuing legal responsibility for goods that become obsolete or are no longer wanted by the consumer and which would otherwise be discarded and treated as waste.30 5.10 With respect to interstate trade, it had been considered for many years that the Constitution s 92, which guarantees freedom of interstate trade and commerce, effectively acted as a brake on too wide an interpretation of the trade and commerce power. Federal environmental regulations made under the trade and commerce power are not likely to contravene s 92,31 but state regulation remains susceptible.32

External affairs 5.11 Unlike some countries, international treaties are not ratified by the Commonwealth parliament but by the Commonwealth government, although

before ratification the Commonwealth will voluntarily consult with the states.33 Ratification marks the formal acceptance of the terms of a treaty by Australia. The effect is that Australia thus takes on international obligations under the treaty, and becomes subject to whatever enforcement mechanisms are embodied in the treaty; however, ratification has no direct effect on domestic law within Australia.34 For the terms of a treaty to be binding within Australia, the Commonwealth has to give effect to the treaty by enacting domestic legislation. The Constitution s 51(xxix) authorises the Commonwealth parliament to enact laws relating to ‘external affairs’. Most Commonwealth environmental legislation has been enacted, in fact, to give effect to [page 142] the terms of international conventions: see Table 5.1. Not surprisingly, developments in international law have a significant impact on the development of environmental policy and law within Australia.35 The Tasmanian Dam case (Commonwealth v Tasmania (1983) 46 ALR 625)36 determined that the Commonwealth may validly enact domestic legislation in relation to ‘external affairs’ if the subject matter of the legislation is of ‘international concern’, that is, it has the capacity to affect the country’s relations with other nations;37 or if, in an appropriate manner, it implements the purposes of any international treaty or agreement. Where legislation relies on the implementation of a treaty then no independent requirement of ‘international concern’ is necessary. In this case, the validity of Commonwealth legislation designed to prevent the Tasmanian government from constructing a dam on the Gordon River in the south-west Tasmanian wilderness was upheld in so far as prohibitions contained in the legislation were appropriate to the Commonwealth carrying out its international obligations under the Convention for the Protection of the World Cultural and Natural Heritage (the World Heritage Convention).38 5.12 A matter will naturally be of international concern if it forms the subject matter of an international agreement, but it is possible, even in the absence of any treaty, that domestic legislation simply reflecting ‘international concern’ may be validly enacted, although the ‘bona fides’ of such legislation may possibly need to be more carefully scrutinised to make sure that the purported reliance on the external affairs power is not merely a device to attract power to the Commonwealth to legislate on a particular issue.39 Former Attorney-General, Senator Gareth Evans, denied that the outcome of the Tasmanian Dam case could encourage the federal government to embark

on a program of treaty initiation and implementation in order to attract domestic constitutional power in areas otherwise outside its jurisdiction.40 Nevertheless, the [page 143] Commonwealth has continued to legislate to reflect the content of international agreements. As Crawford has remarked:41 … [external affairs] is likely to continue to prove a major source of power with respect to environmental management … given the growth of treaty making, and other international activity, on such matters as global warming, deforestation, acid rain and the depletion of the ozone layer.

It has been argued, however, that a treaty that is purely aspirational in nature, and imposes no legally binding obligations on the parties, such the Climate Change Convention, would not support use of the external affairs power to justify domestic legislation by reference to the treaty.42 The necessity for such an expressly stated obligation seems to have been denied by the majority of the High Court in the Tasmanian Dam case; though, as it happened, the treaty in question, the World Heritage Convention, does seem to oblige parties to the Convention to take action to protect property of ‘outstanding universal value’ situated on its territory. This obligation was later successfully argued in the High Court in Richardson v Forestry Commission [1988] HCA 10 (the Tasmanian Forests case),43 to entitle the Commonwealth under the external affairs power to pass legislation44 providing interim protection of an area pending inquiry into whether that area exhibited qualities that would justify its nomination for world heritage listing. As Mason CJ and Brennan J remarked at [33]: If part of an area might possess world heritage characteristics and if that part might be damaged unless the area is protected by legislative measures to preserve that part, a failure to take those measures involves a risk that the Convention obligation will not be discharged. It is only by taking those measures that the risk of failing to discharge the Convention obligation can be avoided. As the external affairs power is a plenary power, it extends to support a law calculated to discharge not only Australia’s known obligations but also Australia’s reasonably apprehended obligations.

[page 144] Table 5.1 below indicates the various treaties on which Commonwealth legislation relies, or partly relies, for constitutional validity: Table 5.1 Application of external affairs power Commonwealth Act

International Treaty

Seas and Submerged Lands Act 1973 Convention on the Territorial Sea and the Contiguous Zone; Convention on the Continental Shelf Historic Shipwrecks Act 1976 Agreement between the Netherlands and Australia concerning old Dutch shipwrecks Antarctic Treaty (Environment Protocol on Environmental Protection) Act 1980 Protection to the Antarctic Treaty; Convention for the Conservation of Antarctic Seals Antarctic Marine Living Resources Convention on the Conservation of Conservation Act 1981 Antarctic Marine Living Resources Environment Protection (Sea Convention on Civil Liability for Oil Dumping) Act 1981 Pollution Damage Protection of the Sea (Civil Liability) Convention on Civil Liability for Oil Act 1981 Pollution Damage Protection of the Sea (Powers of Convention relating to Intervention Intervention) Act 1981 on the High Seas in Cases of Oil Pollution Casualties; Protocol relating to Intervention on the High Seas in relation to Pollution by Substances other than Oil Protection of the Sea (Prevention of Convention for the Prevention of Pollution from Ships) Act 1983 Pollution from Ships Hazardous Waste (Regulation of Basel Convention on the Control of Exports and Imports) Act 1989 Transboundary Movements of Hazardous Wastes and their Disposal Ozone Protection and Synthetic Vienna Convention for the Greenhouse Gas Management Act Protection of the Ozone Layer 1989 Antarctic Mining Prohibition Act Antarctic Treaty 1959; Protocol on 1991 Environmental Protection 1991 Environment Protection and Convention on the World Cultural Biodiversity Conservation Act 1999 and Natural Heritage; Convention on the Conservation of Migratory Species of Wild Animals; RAMSAR Convention on Wetlands of International Importance; Convention on International Trade in

Endangered Species [page 145] Commonwealth Act National Greenhouse and Energy Reporting Act 2007 Water Act 2007

Clean Energy Act 2011 (now repealed) Product Stewardship Act 2011

Biosecurity Act 2015

International Treaty United Nations Framework Convention on Climate Change; Kyoto Protocol Convention on Biological Diversity; Convention on the Conservation of Migratory Species of Wild Animals; RAMSAR Convention on Wetlands of International Importance; Convention to Combat Desertification; Bilateral agreements with China, Japan and Korea with respect to migratory birds (CAMBA, JAMBA, ROKAMBA) United Nations Framework Convention on Climate Change; Kyoto Protocol Objects include to contribute to Australia meeting its international obligations (not specified) and to reducing the amount of greenhouse gases emitted WTO Agreement on Sanitary and Photosanitary Measures (SPS Agreement); United Nations Convention on the Law of the Sea (UNCLOS)45

5.13 Where the implementation of an international treaty is relied on for the constitutional legitimacy of environment protection legislation, the content of that legislation must reflect appropriate means of, and be adapted to, implementing treaty obligations.46 The test for conformity is whether the legislation is conducive to the performance of the obligation imposed by the Convention. For example, specific prohibitions on road construction in world heritage areas would not be valid because they might not be appropriate to the management of all world heritage areas. They might, for example, preclude the creation of access for fire management, which would be an integral part of

the management of some world heritage properties. On the other hand, a provision that allowed the minister to outlaw road construction as part of [page 146] the management priorities for a world heritage area would be valid because such a restriction would be focused on and restricted to the management of a particular area.47 In fact, in the Tasmanian Dam case, the whole of s 9 of the (now repealed) World Heritage Properties Conservation Act 1983 (Cth) (the World Heritage Act), except for ss 9(1)(h) and 9(2), was struck out by the High Court because it purported to prohibit specific activities (for example, the carrying out of excavation and mining works, destruction of trees, use of explosives, and others) that it would not be necessary, in all cases, to prohibit in order to achieve the objectives of the Treaty. Such ‘blanket’ prohibitions could not be justified. This, however, could be contrasted with the power given in s 9(1)(h) to prescribe specific acts in relation to particular property that it would be unlawful to do or carry out without ministerial authority. This power to prescribe is clearly not a ‘blanket’ prohibition, but a power that is linked to specific threats to particular identified property, although the acts so prescribed may, and indeed did, encompass such activities as those covered by s 9(1)(a)–(g). The World Heritage Act s 9(1) was subsequently amended to take into account the views expressed by the High Court. 5.14 The Act was also amended to include, within the definition of identified property in respect of which protective action could be taken, property that was the subject of any inquiry into its cultural or natural heritage, including properties that, although not yet inscribed on the World Heritage Register, had been nominated for listing.48 This enabled the Commonwealth to take action against the threat of continued logging of the Lemonthyme and Southern Forests in Tasmania before the inquiry was complete, by including those forests as identified property under the World Heritage Act. But another prime motivation for moving so quickly was to ensure that North Queensland rainforests, which had also been nominated for world heritage listing, were adequately protected in the interim. Consequently, the Commonwealth sought to invoke restrictions on specified activities within the wet tropical rainforests of north-east Australia. This action was challenged by the Queensland government in Queensland v Commonwealth (1988) 62 ALJR 143, on the basis that inclusion of the

property on the World Heritage Register was not conclusive of its status as ‘natural heritage’ under the World Heritage Act, and that such status could not be ascribed merely by a legislative or executive assertion to that effect. This claim failed, the court holding that such a listing was conclusive of the status of the area and of Australia’s international obligations to protect it. 5.15 The question of bona fides was raised again in the Tasmanian Forests case,49 but the High Court stressed that, in the absence of any evidence to the contrary, the presumption would be that the Commonwealth had acted in good faith (at 295–6): In making provision for the establishment of the Commission of Inquiry and for the regime of interim protection of the protected area, Parliament has made a legislative

[page 147] judgment about the situation and the Convention obligation that may be proved to exist. It is not for us to impugn the bona fides of that judgment. It is enough that the legislative judgment could reasonably be made or that there is a reasonable basis for making it.

Evidence had been placed before the court that parts of the protected area were indeed likely to fulfil the world heritage qualities of ‘outstanding universal value’. The appropriateness of the provisions of the relevant Act (the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth)) was then called into question. First, it was argued that the terms of reference of the inquiry were broader than was justified by the World Heritage Convention in that the commission was charged also with evaluating the forest industry in Tasmania to establish whether there were viable economic alternatives to exploitation of the disputed forests. Not surprisingly, the court held that it was clearly relevant for the Commonwealth to be informed as to the economic consequences of any action taken to fulfil its responsibilities under the Convention. Second, it was argued that the protective provisions of the World Heritage Act s 16, which purported to prohibit such destructive activities as tree-felling, excavation and road construction in the area, were invalid on the same basis that s 9(1)(a)–(g) had been invalidated in the Tasmanian Dam case. The court held, however, that this time the prohibitions were valid, because they were both more circumscribed than in the Tasmanian Dam case, and applied only in the particular protected area. Further, s 16 of the Act instructed the minister, in deciding whether to give consent to the activities listed in s 16, to have regard only to Australia’s international obligations under the Convention. The introduction of the

consent provision and instruction in relation to it clearly helped to convince the court that the minister was not entitled to refuse consent unless it was necessary to secure protection of the heritage values of the area, and thus that the prohibitions contained in s 16 were appropriate to Australia’s obligations under the Convention. Further, although some of the activities sought to be prohibited were of so trivial a nature as hardly to constitute a risk of damage to the world heritage values of the area, while others (such as fire-breaks) might be of positive benefit, the legislation was still a means for effectuating a desired end that was within power.

The corporations power 5.16 The Constitution s 51(xx) empowers the Commonwealth to legislate with respect to ‘foreign corporations, and trading or financial corporations’. The Tasmanian Dam case clarified certain important aspects of this power in relation to trading corporations. First of all, a corporation is a ‘trading’ corporation if a substantial part of its activities are trading activities. Applying this test in the Tasmanian Dam case, the Tasmanian Hydro-Electric Commission was found to be a trading corporation, because one of the principal functions of the commission was the sale of electricity. 5.17 Further, it is also clear since the Tasmanian Dam case that the power under s 51(xx) is not confined to regulating the trading activities of trading corporations. Non-trading activities may also be regulated so long as they are being carried out for the purpose of engaging in trading activities. In the Tasmanian Dam case, this [page 148] interpretation gave the Commonwealth power to prohibit the construction of a dam and associated works, which although not in themselves trading activities, were to be undertaken pursuant to engaging in a trading activity, namely the sale of electricity. Whether the Commonwealth may regulate any activity of trading corporations is more problematic; three members of the court in the Tasmanian Dam case thought it could.50 5.18 The scope of this power is therefore very significant. As (later Justice) Wilcox pointed out:51 Almost all significant development in this country is carried out by trading corporations, either on their own account or on behalf of natural persons or governments. If, as now seems clear, the Commonwealth may regulate their activities, in so far as they are ‘for the purposes of’ trade, then it has a wide scope for environmental control.

It would, for example, be possible for the Commonwealth to enact endangered species legislation in which it regulated the activities of corporations in relation to habitat. It would be possible to impose pollution controls upon corporations carrying on trading activities. It would be possible to prohibit trading corporations adversely affecting items on the Register of the National Estate. It would be possible to regulate the conduct of corporations in relation to the supply in the course of trade of no-deposit beverage containers. The list is almost endless.

Zines agreed:52 [T]he clear result of the case is that the Commonwealth may regulate and control all acts of trading and financial corporations done for the purposes of trade. This includes all, or practically all, manufacture, mining or agriculture performed by these corporations.

5.19 Since this interpretation of the corporations power delivers to the Commonwealth enormous influence over the activities of domestic trading corporations, it is obviously pertinent to ask whether the application of this power could be avoided in any way. Crawford has remarked:53 It might perhaps be possible to organise one’s way out … of s 51(xx), for example, by having the actual process of mining etc which was deleterious to the environment performed by a corporation which did not sell the items, made no profit, but simply transferred them to another corporation which did sell them. But that would undoubtedly be a related corporation, whose profit motive could be attributed to the transferor, so that such devices are unlikely to be successful.

5.20 Since the prospects of deliberate avoidance are probably remote, however,54 the corporations power would seem potentially to be a very influential tool in [page 149] fostering more ‘environmentally friendly’ corporate behaviour. A good example of the possibilities would be the more recent action by the Commonwealth to take initial first steps to respond to the problems caused by climate change.55 The Energy Efficiency Opportunities Act 2006 (Cth) places obligations on corporations that trigger a certain threshold of energy use, to register, supply information, carry out energy efficiency opportunities assessments, and submit an assessment plan for approval. The NGERA requires corporations that meet threshold emissions of greenhouse gases to register, supply information and submit reports about energy production and consumption; greenhouse gas projects; and reductions, removals and offsets of greenhouse gas emissions.

Financial powers 5.21 The Commonwealth enjoys a number of powers relating to finance

that are or may be used for the purpose of promoting environmental measures: special purpose grants and loans (s 96), taxation (s 51(ii)) and federal spending powers (ss 81–83).

Special purpose grants 5.22 Under the Constitution s 96, the Commonwealth may grant financial assistance and make loans to the states.56 This enables the Commonwealth not only to make special grants for environmental purposes, but also to make environmental conditions part of a loan or grant.57 For example, the Commonwealth has made it part of an arrangement with New South Wales that Commonwealth grants would be provided for water reforms so long as that State implemented water sharing plans.58 Acting under this power, the Commonwealth has also provided funds for: soil, water and air quality conservation projects — States Grants (Air Quality Monitoring) Act 1976 (Cth) (now repealed);59 States Grants (Water Resources Measurement) Act 1970 (Cth) (now repealed); River Murray Water Agreement [page 150] Act 1983 (Cth) (now repealed);60 National Water Resources (Financial Assistance) Act 1978 (Cth) (now repealed); Soil Conservation (Financial Assistance) Act 1986 (Cth) (now repealed). The latter two have been superseded by the Natural Resources Management (Financial Assistance) Act 1992 (Cth); conservation and protection of the national estate — Urban and Regional Development (Financial Assistance) Act 1974 (Cth); the fulfilment of parks management programs and acquisition of land for nature conservation programs — States Grants Nature Conservation Act 1974 (Cth); Environment (Financial Assistance) Act 1977 (Cth). Both have been repealed in favour of the comprehensive funding arrangements developed under the Natural Heritage Trust of Australia Act 1997; and61 environment protection, NRM and sustainable agriculture62 — Natural Heritage Trust of Australia Act 1997.

Taxation

5.23 The Commonwealth’s power to make laws with respect to taxation encompasses income tax, customs and excise, and any other taxes, such as levies, that might be lawfully imposed by the federal government. The taxation power may be also be used to encourage non-revenue raising purposes; and as such ‘would support a wide range of initiatives designed to compel compliance with environmental standards and goals’.63 Such taxes could be used, for example, to encourage environmentally friendly products, processes and activities; and discourage environmentally harmful practices,64 a policy that is supported and advocated in the Commonwealth’s own discussion paper on ecologically sustainable development (ESD).65 An example of a direct tax aimed at encouraging environmentally responsible behaviour is the Clean Energy (Fuel Tax Legislation Amendment) Act 2011 (now repealed), the stated purpose of which was to provide an effective carbon price on business through the operation of the fuel tax system. Direct taxes can also be applied to extraction of natural resources; for example, the petroleum resource rent tax imposed on the profits generated from petroleum projects under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth); and the minerals resource rent tax applied to the profits from certain coal and iron ore operations under the Minerals Resource Rent Tax Act 2012 (Cth) (now repealed); as well as royalties imposed on production of petroleum under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) Sch 4. [page 151] An example of a direct concession for rewarding environmentally friendly activity is the tax deductions or capital gains concessions that are available for donations of heritage property, making environmental gifts and to reward entry into heritage agreements.66 Gifts to specified ‘environment recipients’ (private environmental organisations) are also tax deductible;67 as are gifts to other environmental organisations whose principal purpose is the protection and enhancement of the natural environment, or of a significant aspect of the natural environment; or the provision of information or education, or the carrying on of research, about the natural environment.68 Examples of levies that have been introduced to fund environmental outcomes include the Commonwealth’s product stewardship oil levy, imposed on producers and importers of oil to offset the costs of benefits paid to oil recyclers as an incentive to undertake increased re-refining and reuse of used oil;69 the environment plan levy, imposed on offshore title holders under the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 (Cth); and the rehabilitation offset provided under the Minerals Resource Rent Tax Act 2012 (Cth) ss 225.1–225.25 (now repealed). The states

may also apply levies; for example, on landfill operations designed to divert waste away from landfill and into reuse and recycling.70 The tax system can also be used to offset charges imposed by other legislation that could discourage the uptake of environmentally sustainable activities. For example, the stated purpose of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (Cth) (now repealed) was to fully offset any excise duty or customs duty payable in relation to the manufacture or importation of a number of renewable and cleaner burning fuels.71 5.24 Although ‘taxes’ appear in various forms, including direct taxes, levies, fees and duties, these should not be confused with the sorts of ‘market-based’ approaches discussed at 7.40. A tax is essentially directed by government not by market forces. The carbon pricing mechanism introduced under the (now repealed) Clean Energy Act 2011 (Cth), referred to by some as a ‘carbon tax’, was a type of hybrid, operating from July 2012 as a tax by reason of the initial price of a unit of carbon being set by the government, but then set to move in 2015 to an emissions trading scheme that [page 152] would be dictated by market forces.72 A hybrid approach is also being taken to the co-regulatory recycling scheme for televisions, computers, printers and computer products introduced under the Product Stewardship Act 2011 (Cth) and Product Stewardship (Televisions and Computers) Regulations 2011. Industry will fund and implement the scheme to meet outcomes determined by government; the alternative to a co-regulatory scheme could be mandatory taxation imposed by a levy, as in the case of the oil producers. 5.25 Australian tax law tends to encourage rather than mandate the adoption of environmentally acceptable behaviour. Under the Income Tax Assessment Act 1997 (Cth), expenditure incurred for the sole or dominant purpose of carrying on an eligible ‘environmental protection activity’ (EPA) is generally deductible.73 Eligible activities include preventing, combating or rectifying pollution, and treating, cleaning up, removing or storing waste. 5.26 Capital works deductions are also available for ‘environment protection earthworks’, which are capital works that are constructed as part of carrying out an EPA.74 Other examples of tax-deductible expenditure would include costs incurred in undertaking environmental audits; costs associated with complying with the licensing requirements of state regulatory authorities; works undertaken for water conservation and management; prevention of soil erosion; tree planting and protection of remnant vegetation;

carbon offsetting;75 whole farm planning; fencing; removal of pests and weeds; and soil improvement. Depreciation on pollution control technology and other environmentally friendly items is also allowable.76 Tax treatment for expenditure on landcare operations and using land for permanent conservation purposes however is more uncertain.77 Conversely, of course, taxation imposts or concessions can lead to pernicious taxation outcomes that reward environmentally harmful activities. Concessional taxation of company cars through the fringe benefits scheme has been targeted as needing reform,78 and landfill levies may contribute to illegal dumping activity. The government-commissioned Henry Review79 of the taxation system recommended that government should continue to monitor tax concessions aimed at supporting environmental outcomes with a view to replacing them with targeted [page 153] spending programs, but otherwise had little to say about environmental taxes except in relation to carbon pollution.80

Federal spending powers 5.27 The ability of the federal government to spend money for purposes that are incidental to the legislative powers of parliament is not in question.81 It was also thought, until recently, that Commonwealth spending powers were not in any case restricted, and that the Commonwealth was free to spend money on any project it chose.82 This would have enabled the Commonwealth to pursue environmental objectives otherwise than by specific purpose grants to the states.83 But two decisions of the High Court have now changed this assumption, limiting the Commonwealth spending power to subjects over which it has legislative power.84 Most federal spending on environmental initiatives should not be affected by this.85 For example, it has always been accepted that the Commonwealth could engage in scientific research through the CSIRO. Federal spending on environmental good works has also taken place under the auspices of the Natural Heritage Trust Reserve, which received $1.35 billion from the partial privatisation of Telstra and subsequent ongoing funding.86 The Natural Heritage Trust of Australia Act 1997 was the vehicle through which individuals, organisations and states could be granted financial assistance87 for purposes that included specified projects88 — the National Vegetation Initiative; the Murray–Darling 2001

Project; the National Land and Water Resources Audit; the National Reserve System (NRS); and the Coasts and Clean Seas Initiative, as well as environmental protection;89 supporting sustainable agriculture;90 and NRM.91 The Natural Heritage Trust itself, together with a number of other funding initiatives, was replaced, from July 2008, by a new program, Caring for Our Country, which itself has now been replaced by the National Landcare Program, which currently has four strategic objectives: sustainable landscape management; sustainable management of natural resources by farmers and [page 154] fishers; community participation and education in sustainable resource management; and restoration and rehabilitation of the natural environment.92 The Clean Energy legislation package (now substantially repealed)93 also relied heavily on federal spending initiatives; for example, by providing assistance to emissions-intensive and trade-exposed industries through the Jobs and Competitiveness Program, and to electricity generators to ensure energy security; and helping households to meet the anticipated price rises in the use of energy. It has now been doubted, however, whether one part of the package that remains, the Carbon Farming Initiative (CFI) that governs the purchase of non-Kyoto eligible CFI credits, is referable to any head of legislative power, which could leave it open to legal challenge.94

People of any race 5.28 The Constitution s 51(xxvi) grants to the Commonwealth a power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The World Heritage Properties Conservation Act 1983 (Cth) ss 8 and 11 relied on this power to provide protection for Aboriginal sites, relics or artefacts that would be threatened by the proposed Gordon-below-Franklin power scheme in Tasmania. Section 11 prohibited much the same works as those prohibited under s 9; however, unlike most of s 9, s 11 was only applied to specific sites of some particular significance to Aboriginal people. In that event, a majority in the Tasmanian Dam case held s 11 to be a ‘special’ law within the meaning of s 51(xxvi). In reaching this conclusion, two important issues were clarified: first, that a law could still be a ‘special’ law even though it applied to all Australians and not just Aborigines; and second, that a law with respect to the cultural heritage of a people is a law

with respect to the people of that race. ‘Special’ is a reference to the differential operation of a law on the people of a particular race.95 This head of power has been relied on in the enactment of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and justifies parts of the EPBCA that, for example, apply to Commonwealth reserves in the Kakadu and Uluru regions.96 [page 155]

Coastal waters 5.29 In the Seas and Submerged Lands Act 1973 (Cth), the Commonwealth claimed sovereignty over the territorial sea of Australia to the exclusion of the states. This declaration conforms with the position in international law (see 4.25), and was upheld as constitutionally valid by the High Court of Australia in New South Wales v Commonwealth (1975) 8 ALR 1. The ‘territorial sea’ was interpreted by the High Court in Bonser v La Macchia (1969) 122 CLR 177 to mean the seas described in the Territorial Waters Jurisdiction Act 1878 (UK), the legislation that applied to the former colonies at the time of Federation, and which described the territorial sea as ‘any part of the open sea within one marine league of the coast measured from low-water mark’. A marine league approximates to three geographical miles. Such a finding also reflected the common law position before Federation; the jurisdiction of the colonies at common law ended at the low water mark, and the declaration of a territorial sea in the UK Act was interpreted as being taken for the benefit of the United Kingdom, not for the benefit of colonial territories.97 In other words, the states have never been entitled to a territorial sea, either at common law or in international law. So far as fisheries are concerned, this position is of course modified by the Commonwealth Constitution s 51(x), which gives jurisdiction to the Commonwealth to make laws for fisheries in Australian waters beyond territorial limits, thus allowing coastal states and territories to manage fisheries resources within territorial limits, at least to the extent that the exercise of some other constitutional head of power by the Commonwealth does not affect such a right.98 Since the effect of the decision in New South Wales v Commonwealth (1975) 8 ALR 1 meant that the states effectively had no ‘coastal waters’ and therefore (apart from fisheries) no rights to access natural resources, the states and territories immediately set about trying to

limit the effect of the High Court’s decision. A declaration of sovereignty in favour of the Commonwealth does not, of course, preclude the Commonwealth and the states from agreeing to some other working arrangement, and following the High Court decision, the states negotiated with the Commonwealth for conferment of powers over coastal waters. This resulted in an agreement (the Offshore Constitutional Settlement) in 1979, whereby proprietary rights in, and legislative powers over, the seabed and its resources within a three nautical mile limit of the states were conferred on all states and the Northern Territory. This agreement was enshrined in legislation in 1980.99 5.30 The legislation does not, apparently, affect the rights of sovereignty of the Commonwealth since declarations of sovereignty in the Seas and Submerged Lands Act have not been revoked. Section 16 of that Act now merely states that the coastal waters legislation is not to be regarded as inconsistent with the Seas and Submerged Lands Act. The states can thus now manage and reap the benefits of petroleum and [page 156] minerals exploration100 of the seabed within their ‘territorial waters’, license other activities within this territory (such as fishing), and also enact their own environment protection legislation to apply to those waters. The federal government has not, however, given up power also to legislate with respect to the coastal zone: the State Powers Acts specifically reserve to the Commonwealth power to make laws for those waters that will prevail over state laws in the event of any inconsistency. The federal government has made it clear, for example, that, by reason of its international obligations in coastal waters, it will apply federal marine pollution legislation to coastal waters in the absence of complementary and adequate state controls.101 The constitutional basis on which the coastal waters legislation rests has been a matter of some conjecture among commentators,102 though most seem to agree that it could all be repealed by the Commonwealth without reference to the states.103 It seems to depend on the Constitution s 51(xxxviii), which allows the Commonwealth to make laws at the request or with the concurrence of the states in respect of matters that could, at the time of the establishment of the Constitution, only be legislated for by the Parliament of the United Kingdom or the Federal Council of Australasia. The validity of the Offshore Constitutional Settlement has been subsequently upheld by the High Court in Port MacDonnell Professional Fisherman’s Association Inc v South

Australia (1989) 88 ALR 12 and recognised in Harper v Minister for Sea Fisheries (1989) 88 ALR 38.

Fisheries 5.31 The Constitution s 51(x) grants legislative power to the Commonwealth with respect to fisheries outside ‘territorial limits’, which, for the purpose of determining jurisdiction between the Commonwealth and the states, is to be interpreted as equivalent to the Imperial ‘territorial sea’ of three nautical miles from the low water mark.104 The states’ right to manage fisheries within this ‘territorial sea’ was recognised [page 157] in the (now repealed) Fisheries Act 1952 (Cth) and its successor, the Fisheries Management Act 1991 (Cth). The exclusion of the Commonwealth from exercising jurisdiction over coastal fisheries does not, of course, mean that the Commonwealth and state governments cannot make joint or exclusive arrangements for managing fisheries, particularly those that migrate between Commonwealth and state waters or those that are found principally within one marine area or jurisdiction. In practice, there are many such arrangements, whereby the states may gain management powers over fisheries beyond the outer limits of the coastal waters of a state by agreement with the Commonwealth,105 while joint management arrangements may be made for state or Commonwealth fisheries.106 Neither is the Commonwealth in fact prohibited from legislating for fisheries within state waters if it so desires. The Commonwealth could not use the fisheries head of power to do this, but it could, for example, use its external affairs or trade and commerce powers. The heads of power in s 51 are not exclusive; any one or more may be used to justify federal legislation.107

Acquisition of property on ‘just terms’ 5.32 The Commonwealth parliament has power to make laws with respect to the acquisition of property for any purpose for which it has power to make laws, although such acquisition must be on ‘just terms’ (s 51(xxxi)); in other words, compensation must be paid. In Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42 at 149, Kirby J, in the High Court, remarked that this provision was a protection against ‘arbitrary and uncompensated deprivation of property’. The concept of ‘property’ was

discussed in Chapter 3, particularly in relation to the distinction between property and permissive ‘rights’ such as licences. The term ‘acquisition of property’ must, however, be viewed as a ‘compound conception’ involving a number of elements:108 the law must affect property rights; there must be an acquisition, not just a mere sterilisation, extinguishment, deprivation, modification or restriction; the law must be characterised as one ‘with respect to’ the acquisition of property; and lastly it must provide for ‘just terms’. The compound nature of this provision had to be applied, for example, in Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8, where the respondent had been granted a statutory permit to explore for petroleum in an area then the subject of a dispute between Australia and Indonesia over rights of sovereignty. The dispute was eventually settled by agreement between the two nations and the Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth) was enacted to give effect to the agreement. The provisions of this Act effectively abrogated rights of exploration conferred under the earlier permit, and the respondents claimed [page 158] compensation for the considerable expenditure that had been outlaid in exploring the permit area. The High Court interpreted the conferment of the permit as conferring a right of property that had subsequently been extinguished. As Kirby J said at [222]: The scheme of the Act envisages that an applicant, which has held a permit to explore for petroleum, may secure a petroleum lease and, upon discovery of petroleum, a production licence. So long as the statutory conditions are fulfilled, this is a matter of entitlement, not of administrative discretion. The need for enforceable entitlements is obvious enough. Few corporations engaged in the chancy business of petroleum exploration at sea would invest the large amounts of capital required (and submit to the binding conditions of the permits, leases and licences) if, upon the discovery of petroleum, the governmental grantors could simply thank the venturers for their efforts and either retain the benefits for themselves or assign those benefits to others. The quid pro quo for the investment and obligations envisaged by PSLA and inherent in exploration for petroleum on the Australian continental shelf was the enforceable legal assurance that the rights of the venturers would be protected and could be enforced under the law of Australia.109

5.33 Compensation, however, is only payable if property is ‘acquired’, and extinguishment or sterilisation of a right of property does not necessarily amount to an acquisition. In Mutual Pools Pty Ltd v Commonwealth (1994) 179 CLR 155, Deane and Gaudron JJ remarked that to constitute an acquisition there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of the property. Mere sterilisation of a particular land use does not necessarily amount to an acquisition. In

Commonwealth of Australia v Western Mining Corp Resources Ltd [1998] HCA 8, the property right conferred by the permitting arrangements described above arose out of the statutory scheme, and the continued existence of the right depended on continuing statutory support. Such rights would be capable of effecting an acquisition if transferred to a third party; however, the provisions of the legislation extinguishing such rights did not, in this case, have such an effect. Brennan CJ said at [17]: Where a law of the Commonwealth creates or authorises the creation of a right, a statutory modification or extinguishment of the right effects its acquisition if, but only if, it modifies or extinguishes a reciprocal liability to which the party acquiring the right was subject … But where a law of the Commonwealth creates or authorises the creation of a right that does not impose on the Commonwealth a reciprocal liability, the mere extinguishment of the right effects no acquisition of the right by the Commonwealth. The Commonwealth’s position remains unchanged by the extinguishment.

A majority of the court agreed therefore that, in this case (at [24]): … the statutory modification or extinguishment of a permit or an interest in a permit is not an acquisition of property by the Commonwealth, for the Commonwealth was under no liability reciprocal to the permit or interest and acquires no benefit by the modification or extinguishment.

[page 159] 5.34 In Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 46 ALR 625, Tasmania argued that because the Commonwealth had passed legislation forbidding the construction of a hydro-electric dam in an area of high conservation value in western Tasmania, the Commonwealth had thereby ‘acquired’ the property and compensation was therefore payable. The High Court, rejecting this argument, pointed out that sterilising this particular form of land use did not thereby prohibit other uses to which the property might be put and the Commonwealth had not effectively acquired the property. In Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 147 ALR 42, however, the effective termination of a right to mine was considered to be an acquisition of property. The case concerned mining leases over Crown land at Coronation Hill in the Northern Territory. Subsequent to the issue of the leases that land was added to the Kakadu National Park. Under the National Parks and Wildlife Conservation Act 1975 (Cth), mining was prohibited. The lessees claimed that the Commonwealth had therefore effectively acquired the leases, an argument that was accepted by a majority of the High Court. Although this case has been criticised on the basis that it fails to take account of the public interest in the sterilisation of the property

interest, it is nevertheless consistent with the finding in Tasmanian Dam. In Newcrest, there was no other form of land use open to the plaintiff following the sterilisation of that particular form of land use. Effectively, therefore, the Commonwealth had acquired the property, the benefit passing to the Commonwealth being the unexpired term of the mining leases. The law which sterilised Newcrest’s right under its mining lease to carry on ‘operations for the recovery of minerals’ on land vested in the Commonwealth was … a law for the acquisition of property because it extinguished the liability of the Commonwealth to have those minerals extracted from its land and thereby enhanced the property of the Commonwealth.110

By contrast, in Spencer v Commonwealth of Australia [2015] FCA 754 at [4], the plaintiff’s claim that his property had been ‘acquired’ by a refusal to consent to clearing under the Native Vegetation Act 2003 (NSW) (NVA) was dismissed by the Federal Court. Mortimer J held that, even though there was what could be characterised as a ‘sterilisation’ or a ‘taking’ because the farm was no longer commercially viable as a result of the impact of the State’s native vegetation laws, there was no acquisition by the State nor by any other person of an interest or benefit of a proprietary nature in the bundle of rights Mr Spencer held in his farm.111 5.35 In previous litigation involving Mr Spencer it had been argued that s 51(xxxi) could be triggered if Commonwealth financial assistance legislation subsequently is used to enable a state government to acquire property otherwise than on just terms. In Spencer v Commonwealth of Australia [2008] FCA 1256, the plaintiff claimed that the Native Vegetation Act 2003 (NSW) (NVA), under which the plaintiff had been prohibited from clearing his land without consent, thereby deprived him of any ability to reasonably use the land or enjoy the benefits of the usual incidents of ownership, [page 160] including continuing enjoyment of previous improvements made to the property, sale of timber rights, potential eco-service agreements and carbon rights that might accrue in relation to that vegetation; and that as New South Wales had only been able to enact such legislation because of financial arrangements made under intergovernmental agreements and Commonwealth financial assistance legislation, the Commonwealth was thereby effectively sanctioning or complicit in the acquisition of those rights without paying just compensation.112 The benefit that accrued to the Commonwealth out of this arrangement was the ability to meet Australia’s international legal obligations to reduce greenhouse gas emissions under the Kyoto Protocol.

In rejecting the claim as having no reasonable prospects of success Emmett J did, however, say (at [120]) that ‘it may be arguable that an agreement between the Commonwealth and a State will be invalid if, as a condition of accepting a grant of financial assistance, the State agrees to acquire property otherwise than on just terms’ and later (at [152]) ‘if any of the InterGovernmental Agreements effected or authorised an acquisition of property otherwise than on just terms, and that agreement was only authorised by either of the Commonwealth Statutes,113 it may be arguable that that intergovernmental agreement was invalid or inoperative, to the extent that it effected or authorised such an acquisition’. The court ultimately concluded, however, that since the Commonwealth legislation in question did not authorise expressly, or by necessary intention, the making of any agreements with a state requiring the state to acquire property on unjust terms as a condition of receiving a grant of financial assistance from the Commonwealth, the legislation could not therefore be fairly characterised as a law with respect to the acquisition of property within the Constitution s 51(xxxi). Furthermore (at [171]), ‘there is no apparent connection between the provision of funds by the Commonwealth to New South Wales pursuant to either of the Commonwealth Statutes, on the one hand, and the refusal by officers of New South Wales to grant development consent under the State Statutes for the clearing of native vegetation, on the other hand’.114 An appeal to the Full Court was then dismissed by that court also on the basis that the plaintiff had no reasonable prospects of success.115 This decision was subsequently overruled by the High Court largely on the basis that, although admitting Spencer’s case was not strong, a new case that had been heard in the High Court since the original application had been determined, and that might shed further light on the issue, should be considered.116 [page 161] 5.36 This case was ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51, in which the plaintiff had claimed that New South Wales legislation that had effectively reduced his water entitlement by replacing an existing bore licence with an aquifer access licence, underpinned by an offer for ‘structural adjustment’, partly using moneys provided by the Commonwealth under the National Water Commission Act 2004 (Cth), was an acquisition on less than ‘just terms’. It was conceded in evidence that the structural adjustment payment would not be equivalent to ‘just terms’ compensation. The legislation under which the plaintiff’s entitlement had been reduced was directed by

national water reforms under the National Water Initiative (NWI), which provided for some Commonwealth funding to encourage the uptake of the national reforms. The High Court confirmed (at [46]) that ‘the legislative power of the Commonwealth conferred by s 96 (see 5.22) and s 51(xxxvi) does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms’ However, in this case, even if it was accepted that the bore licences that were cancelled were a species of property (because the entitlements that were attached to the licences could be traded or used as security117), the replacement of the plaintiff’s bore licences did not constitute an acquisition of property within the meaning of s 51(xxxi). The court confirmed that in order to constitute an ‘acquisition’ either the Commonwealth or another party must obtain an entitlement to possession and control of the plaintiff’s property; or at least that government action must sterilise the plaintiff’s interest while at the same time providing a correlative proprietary benefit either to the Commonwealth or another party. In this case, the only party that could have benefited from the change in water entitlements was the State of New South Wales, but there was no measurable advantage accruing to the state that could have triggered the possible application of s 51(xxxi). The amount of water that the State could permit to be extracted was bounded only by the physical state and capacity of the aquifer, and such policy constraints as the State chose to apply. Neither the existence, nor the replacement or cancellation, of particular licences altered what was under the control of the State or could be made the subject of a licence to extract. If, as was hoped or expected, the amount of water in the aquifer would thereafter increase (or be reduced more slowly) the State would continue to control that resource. But any increase in the water in the ground would give the State no new, larger,

[page 162] or enhanced ‘interest in property, however slight or insubstantial’,118 whether as a result of the cancellation of the plaintiffs’ bore licences or otherwise.119

This finding seems to be consistent with the earlier finding in Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 that cancellation of entitlements under a fisheries management plan did not effect an acquisition because statutory entitlements to fish, even if regarded as property, were inherently susceptible to modification or extinguishment depending on amendments to the plan, and neither the Commonwealth nor any other party obtained any correlative proprietary benefit. The ICM case, of course, was concerned with old-style bore licences conferred under the Water

Act 1912 (NSW), not with the replacement aquifer licences issued under the later Water Management Act 2000 (NSW), the precise classification of which as ‘property’ susceptible to ‘acquisition’ has yet to be commented upon by the court.120 5.37 Interestingly, as Macintosh and Wilkinson121 point out, former Federal Court judge Murray Wilcox had forecast in the early 1990s that as legislative controls on land increased, there would be more pressure on courts to determine whether ‘acquisitions’ had occurred; they also note that various members of the High Court had since made statements ‘that are consistent with the conclusion that federal laws that regulate the use of natural resources, such as the EPBCA, can bring about an acquisition of property … it is arguable that if the EPBCA prevented a farmer from clearing land for grazing, and there was no other commercial use to which the land could reasonably be put, it will affect an acquisition of property’.122 The High Court decision in Spencer left it open to Mr Spencer to pursue his claims in the Federal Court, though the reasoning of the majority adopted in ICM suggested his prospects of success were not great; and [page 163] in the event, Spencer’s claims were ultimately dismissed by the Federal Court; Spencer v Commonwealth of Australia [2015] FCA 754.

Other heads of power 5.38 The defence power contained in the Constitution s 51(vi) could enable the Commonwealth to control the mining and sale of uranium, and address the security implications of environmentally hazardous activities of other nations; although since this is a purposive power, ostensible use of the power should be directed more to military outcomes than environment protection. The Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA)123 partly relies on the census and statistics power (s 51(xi)). The Water Act 2007 (Cth) also relies on this power, as well as the weights and measures power (s 51(xv)), ‘matters incidental to the execution of any power vested by the Constitution in the Parliament’ (s 51(xxxix)), and the ‘referral power’ (s 51(xxxvii)), matters referred to the parliament of the Commonwealth by the parliament or parliaments of any state or states.124 The power under s 51(xxx), the relations of the Commonwealth with the islands of the Pacific, justifies for example the South Pacific Nuclear Free

Zone Treaty Act 1986 (Cth) and the Comprehensive Nuclear Test-Ban Treaty Act 1998 (Cth), as well as certain provisions of the Fisheries Management Act 1991 (Cth) that recognise the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America.

State legislative powers in respect of the environment 5.39 The states retain the law-making power they enjoyed at the time of Federation to legislate for ‘peace, order and good government’,125 subject only to the limitations imposed by the Constitution. The most important restrictions on state legislative power are: s 52, which confers exclusive jurisdiction on the Commonwealth to legislate for Commonwealth places and the Commonwealth public service; s 90, which confers exclusive jurisdiction on the Commonwealth in respect of laws relating to customs, duties and excise; s 92, trade within the Commonwealth to be ‘free’; and s 109, which declares the supremacy of Commonwealth law in the event of an inconsistency with state law. In addition, there is also the possibility of an implied nationhood power to legislate in respect of matters peculiar to the Commonwealth in its role as the central sovereign government of the nation. [page 164]

The Constitution s 90 5.40 The states’ ability to pursue environmental goals through taxation measures is significantly restricted by the Constitution s 90, which prohibits the states from raising taxes by way of excise. An excise was described by Mason J in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 as embracing ‘all taxes on, or in respect of, a step in the production, manufacture, sale or distribution of goods’. In this case, a ‘pipeline operation fee’ imposed on Bass Strait oil producers by the Victorian government was struck down by the High Court because it amounted, in essence, to an illegal excise, despite the fact that the fee was not linked to the quantity of

production — previously thought to be significant in distinguishing an excise from other forms of taxation — but was rather a flat fee of $10 million per annum. Consequently, attempts to promote ‘environmentally friendly’ behaviour through the imposition of charges and fees (such as taxes on the use of non-recyclable or non-biodegradable materials) could be challenged, and any attempt to disguise such taxes as, for example, licence fees are unlikely to survive judicial scrutiny. Significantly, however, a state government-imposed royalty for the right to exploit a public resource (in this case an abalone fishery) was held not to be an excise in Harper v Minister for Sea Fisheries (1989) 63 ALJR 687, even though the amount of royalty was proportionate to the total value of the catch. Brennan J described the purpose of the regulation imposing the royalty thus:126 The public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute … The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations.

5.41 The most important reason for distinguishing this royalty from an illegal tax was the discernible relationship between the amount paid and the value of the privilege conferred by the licence, and in discerning that relationship: ‘It is significant that abalone constitute a finite but renewable resource which cannot be subjected to unrestricted commercial exploitation without endangering its continued existence’.127 Without such a relationship, however, such fees run the risk of being regarded as mere taxation measures: ‘What is otherwise a tax is not converted into something else merely because it serves the purpose of conserving a natural public resource’.128 The crucial element, then, in distinguishing a legitimate fee from an illegitimate tax imposed on the exploitation of public resources is clearly the value of the price paid to extract the resource; the royalty is the commercial price paid to acquire the resource. [page 165] Royalties imposed on the production of minerals, for example, clearly exact a fee for access to public resources.129 In Hematite, the pipeline fee was simply a tax imposed on the use of the pipeline; it did not give rights of access to the resource. Using Harper as precedent, it could also be argued that state-

imposed charges on polluting emissions into the air and watercourses and onto land, which reflect ‘value’ by comparison with the alternative costs of pollution prevention, would be a legitimate ‘royalty’ for use of a public resource. States, of course, can also provide financial incentives for environmentally friendly behaviour within the limits of their own revenue raising powers; indeed, provision of economic or market-based incentive schemes for environmentally responsible behaviour is becoming one of the cornerstones of modern approaches to sustainable environmental management.130

The Constitution s 92 5.42 The Constitution s 92 guarantees freedom of interstate trade and commerce. This does not mean, however, that no interstate trade may ever be restricted for environmental reasons. The decision of the High Court in Cole v Whitfield (1988) 78 ALR 42 confirmed that so long as a law is not protectionist and discriminatory, legitimate measures for conservation of natural resources will not offend s 92.131 The case revolved around a consignment of crayfish from South Australia to a marine farm in Tasmania. By virtue of the Sea Fisheries Regulations 1962 (Tas) the crayfish were, by Tasmanian standards, undersized. The question before the High Court was whether the Tasmanian regulations were in breach of the Constitution s 92. The court concluded that they were not. The Regulations applied to all produce indiscriminately, both to local and interstate trade, and to crayfish caught in Tasmanian waters as well as those imported into the state. So, although the regulations were undoubtedly a burden on interstate trade and commerce in crayfish, they did not introduce any discriminatory protectionism favouring Tasmanian produce:132 Furthermore, the object of the prohibitions, in conjunction with the prohibition against catching undersized crayfish, is to assist in the protection and conservation of an important and valuable natural resource, the stock of Tasmanian crayfish. Although the legislation operates in this way to protect the Tasmanian crayfish industry, it is not a form of protection that gives Tasmanian crayfish production or intrastate trade and commerce a competitive or market advantage over imported crayfish or the trade in such crayfish.

[page 166] The purpose of conservation is therefore likely to be regarded as prima facie nondiscriminatory; at least so long as any resultant prohibitions are, as in this case, necessary to achieve the conservation objective. However, where they go further than necessary they may be deemed to be protectionist.

5.43 In Ackroyd v McKechnie (1986) 66 ALR 287,133 the interstate movement of sulphur-crested cockatoos was held to be protected by virtue of s 92 despite the fact that, contrary to the Fauna Conservation Act 1974 (Qld) s 64, no permits had been obtained from either the buyer in Queensland or the vendor in Sydney, as required by that Act. The High Court held that the existence of a discretion to grant a licence or permit by way of exemption from a general prohibition was not enough to save the provision from invalidity under s 92. It was admitted, however, by Gibbs CJ (at 291), that there might be exceptions permitted where reasonable restrictions had to be imposed, say, on grounds of public health, dangerous goods or diseased animals or plants. A prohibition on the movement of cockatoos was not justified, however, on the basis of the preservation of cockatoos. Wild cockatoos were abundant and the number of cockatoos sold commercially was a minuscule fraction of the wild stocks, so that there could be no suggestion that the trade would endanger the species. This presumably leaves it open to argue, in appropriate cases, that restrictions on interstate trade can be applied legitimately on conservation grounds so long as such restrictions go ‘no further than is necessary for legitimate regulatory or conservational purposes’: at 294 per Deane J. 5.44 An attempt to exempt prohibitions on the interstate sale of kangaroo and wallaby skins under the Fauna Protection Act 1948 (NSW) s 19 also failed for similar reasons in the earlier case of Fergusson v Stevenson (1951) 84 CLR 421, the court declining to hold that they should not be regarded as legitimate articles of trade and commerce. In Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, an amendment to the Beverage Container Act 1975 (SA), which imposed a higher level of compulsory deposit on beer contained in non-refillable bottles than in refillable bottles (15 cents compared to 4 cents) and obliged retailers selling non-refillable bottles to accept empty returns and pay the refund whether or not they sold the original item, as a means of encouraging the use of reusable bottles and the recycling of ‘one trip’ containers, was struck down by the High Court because it concluded that the real aim was to protect state beer producers against a particular producer from interstate (Bond Brewing). 5.45 Even accepting that ‘the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-refillable bottles generates or contributes to the litter problem and decreases the state’s finite energy resources’ the burdens imposed on the non-refillable bottles went beyond what was necessary to adequately address these issues. ‘[L]egislative measures which are appropriate and adapted to the resolution of those

problems would be consistent with s 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their [page 167] achievement’.134 It is, therefore, obviously important for states wishing and willing to encourage more environmentally friendly products and processes to avoid any hint of protectionism or discrimination in the drawing and implementation of legislation purporting to regulate aspects of production. Alternatively, if a law is clearly discriminatory, it may still not breach s 92 if it can be shown to be appropriate and adapted to the pursuit or advancement of a legitimate and competing public interest concern.135 The recognition, hinted at in Ackroyd v McKechnie, that it would be foolhardy to guarantee free trade to goods or articles that may pose risks to human health or the environment, is reflected in the provisions of the quarantine and biosecurity regulations (see 4.40–42). The Biosecurity Act 2015 (Cth) deals with managing biosecurity risks from pests136 and diseases that may be in goods, vehicles or on premises. Although a power or function conferred by the Act must not be exercised or performed in such a way as to contravene s 92 of the Constitution,137 Nevertheless the Act confers extensive powers on biosecurity officers to assess the level of biosecurity risk associated with goods, and to monitor, respond to and control those risks.138 The Act also provides a mechanism for prohibiting certain goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity import risk analyses and import permits.139

Commonwealth places 5.46 Under the Constitution s 52, the Commonwealth has exclusive power to legislate in respect of Commonwealth places; for example, Commonwealth reserved [page 168] areas, airports and defence establishments. In other words, the only laws that may be validly enacted in respect of a Commonwealth place are federal laws.140 State environmental and planning laws, therefore, do not apply to Commonwealth places unless Commonwealth legislation expressly provides for such application,141 or unless the Commonwealth voluntarily acquiesces to state laws. This also means that state laws will not necessarily automatically

apply following disposal of Commonwealth property: some further action at state level, such as rezoning under state planning legislation, may be required to apply state laws to these places.142 Subsequent purchasers or lessees or licensees of Commonwealth places may also enjoy the same privileges and immunities as the Commonwealth from application of state laws, until land is unequivocally brought under state control;143 for example, lessees on federal airport land.144 5.47 In Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193, for example, the Queensland Court of Appeal determined that the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) s 33 operated so as to deny the application of the Queensland Heritage Act 1992 to a church building; and consequently the proposed demolition of that building without approval under that Act could not be prevented by the plaintiff. Although an opportunity to effectively list the building under the Act, and thus to control its demolition, would have arisen when ownership of the property passed from the Australian and Overseas Telecommunications Corporation to the respondents, this in fact had not been done. The heritage legislation did not automatically resume its application to the building once it ceased to be a Commonwealth place. This principle, of course, does not affect the ability of the Commonwealth itself to control the future use and development of Commonwealth places through the terms (for example, covenants) on which a property is sold or otherwise transferred. [page 169] 5.48 The Commonwealth Places (Application of Laws) Act 1970 (Cth), which makes provision for the application of some state laws to Commonwealth places,145 is not generally regarded as including environment protection and planning laws.146 Since under s 52 a Commonwealth place includes one acquired by the Commonwealth for public purposes, then a law that attempts to restrict or control Commonwealth activities in relation to carrying out public purposes is not likely to be ‘applied’. Distinguish this from a law that merely regulates conduct on that place but does not otherwise restrict the use of the place. The Application of Laws Act was intended to overcome the effect of two High Court decisions147 that suggested that state criminal laws and New South Wales building regulations could not be applied to such places. None of these matters restrict the use of the place as opposed to conduct on it. The Application of Laws Act s 4(3) distinguishes laws having

a connection with that place. In other words, state laws that attempt to restrict or control Commonwealth activities in relation to the use of that place for public purposes, for example by planning or environmental restrictions, are ousted by s 4(3). Application of criminal laws and health and building standards are not necessarily restrictive of the place as opposed to conduct on it. While planning restrictions, or those imposed by contaminated lands legislation, may undoubtedly seek to restrict the use of a place for public purposes, mere qualitative standards, such as pollution controls, may be argued not to. The effect of this Commonwealth immunity, however, means that the environmental effects of Commonwealth activity in Commonwealth places cannot be legally controlled by state environment protection and planning legislation unless the Commonwealth subjects itself to such control.148

The Constitution s 109 5.49 The Commonwealth can avoid the application of state laws by operation of the Constitution s 109, which provides that to the extent of any inconsistencies between federal and state legislation, Commonwealth law will prevail.149 A good example of the operation of this rule is to be seen through the conflict in Tasmania over the proposed Gordon-below-Franklin power scheme. The Tasmanian parliament authorised work to begin on this project by enacting the Gordon River Hydro-electric Power Development Act 1982 (Tas). The site chosen for the dam, however, lay in an area of national and world heritage significance. To stop the scheme going ahead, [page 170] the federal Labor government enacted the World Heritage Properties Conservation Act 1983 (Cth) and passed regulations pursuant to the Act, effectively prohibiting any construction work in the area from proceeding without the consent of the appropriate federal minister. The High Court of Australia ultimately upheld the validity of the Commonwealth Act in Commonwealth v Tasmania (1983) 46 ALR 625: the Constitution s 109 therefore operated, and the Tasmanian Act ceased to have any effect. 5.50 Commonwealth law will often affect discrete areas of an activity rather than attempt to take over the whole, leaving areas where both Commonwealth

and state law will apply in harmony. In such a case, therefore, authority to carry out an activity granted under Commonwealth law cannot simply ignore the application of state law to that activity.150 Indeed, Commonwealth legislation may itself make this clear. For example, the EPBCA s 10 expressly declares that the Act is not intended to exclude or limit the concurrent operation of any law of a state or territory except so far as a contrary intention appears. 5.51 Sometimes, however, the clear intent of Commonwealth law is to ‘cover the field’, and constitute a comprehensive code for regulation of an activity, leaving no room for the application of state laws. Australian Defence Industries Ltd (ADI), for example, is exempted from state laws that relate to the environmental consequences of the use of land or premises.151 Similar exemptions have been given to the Australian Nuclear Science and Technology Organisation (ANSTO).152 In Botany Municipal Council v Federal Airports Corporation (1992) 109 ALR 321, it was held that the EA provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) did not apply to the Federal Airports Corporation, which was authorised by Commonwealth legislation and regulations to construct a third runway at Sydney Airport. The Federal Airports Regulations 1992 (Cth) expressly authorised works associated with construction of the runway ‘in spite of’ any state laws relating to EA.153 The provisions of the later Airports Act 1996 (Cth) and associated Airports (Environment Protection) Regulations 1997 (Cth) also clearly attempt to establish a comprehensive regime for managing development on airport land and thus leave no room for the application of New South Wales environmental planning and Aboriginal heritage protection laws, despite the absence of equivalent controls in the federal legislation.154 [page 171] 5.52 Commonwealth legislation may also effectively exempt private or statutory corporations from the effect of state laws. For example, the Telecommunications Act 1997 (Cth) Sch 3 exempts many activities from state planning, EA and heritage laws,155 including EA requirements,156 and sets up its own regime for assessing and meeting environmental impacts by way of a ministerial Code.157 Interestingly, in some circumstances, overhead lines may be required to be removed, and there must be a review of options for placing facilities underground as part of a coordinated program of placing other structures underground.158 Carriers are also instructed to give notice to landowners before clearing vegetation159 or conducting activities on ‘sensitive’

land;160 to take all reasonable steps to protect the environment and public roads161 and to restore land;162 and to make ‘reasonable efforts’ to enter into agreements with public utilities with respect to the manner of engaging in activities.163 Effectively, therefore, any of these licensed carriers may access land for laying telecommunications cables or erecting structures, often immune from the application of state planning and environmental protection laws. Although state laws have ostensibly been replaced by a Code and by explicit statutory instructions in the 1997 Act, the Environment and Natural Resources Committee of the Victorian parliament previously identified numerous problems with the Code approach under previous legislation and the degree of compliance by carriers.164 Excessive removal of vegetation has been identified as a common problem.165

The implied nationhood power 5.53 In relation to Commonwealth activities outside a Commonwealth place, which therefore are not bound by the Constitution s 52, and assuming that s 109 also does not apply, then the Commonwealth is subject to state laws of general application.166 The High Court has developed a doctrine of implied immunity of the Commonwealth from state laws.167 Arguably, however, this has more to do with enabling the Commonwealth to perform its functions as a national government rather [page 172] than allowing the Commonwealth to ride roughshod over state laws.168 There is still much uncertainty over the legitimacy and breadth of this immunity; nevertheless, the revisitation of this doctrine by the High Court in Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254, and the rejection in that case of any doctrine of general immunity of the Commonwealth from state law (by contrast to the specific constitutional immunities enumerated above), at least in respect of executive functions the Commonwealth chooses to enter into (in this case, residential tenancy agreements), may suggest that outside the protection offered by the Constitution, Commonwealth immunities from state law are not as broad as once thought. For example, the Residential Tenancies case did prompt the Australian Government Solicitor to remark that state laws imposing pollution controls on activities are probably capable of binding the Commonwealth,169

an area that many state governments had previously believed to be beyond them.

The COAG agreement 5.54 Not surprisingly, the immunity of the Commonwealth from state environmental laws has been a major source of conflict between the Commonwealth and states. In November 1997, the Council of Australian Governments (COAG) drew up a draft agreement that, besides defining the extent of Commonwealth responsibilities and interests in the environment, contained provisions for the recognition by the Commonwealth of the importance of complying with state environmental laws. The agreement contains a commitment by the Commonwealth to subject itself to state environmental laws. However, this commitment will apply only to those Commonwealth departments, agencies and statutory authorities that are required by the Commonwealth to comply, or elect to comply, with state environmental and planning laws.170 All non-Commonwealth tenants and persons undertaking activities on Commonwealth land, and all Commonwealth Government Business Enterprises (GBEs), non-GBE companies, statutory authorities whose primary functions are commercial, and business units, will be subject to state laws.171 Certain matters will also be exempt from compliance on grounds of national interest; these include aircraft noise and emissions.172 Where a Commonwealth department, agency or statutory authority is not bound to comply with state environment and planning laws, then [page 173] the Commonwealth will ensure that at least they will operate and secure approvals in accordance with Commonwealth measures that are at least equivalent to the environment and planning laws of the state in which the Commonwealth activity or property is located, and that the Commonwealth will endeavour to adopt standards of ‘best practice’ in managing its environmental responsibilities.173 It was recognised that implementation of this agreement might require further legislative action; the parties agreed to ‘seek to legislate’ within two years of the signing of the agreement.174 This, of course, did not happen, and there have since been no further developments in respect of this commitment. Commonwealth compliance with state law may still depend therefore on Commonwealth agreement; and a number of states are currently in dispute

with the Commonwealth over compliance issues, most notably in relation to contaminated sites, an issue about which there is no specific Commonwealth law to apply to Commonwealth places.

Cooperative federalism 5.55 The recognition flowing from decisions of the High Court in the 1980s that Commonwealth powers in respect of the environment may well be more extensive than previously realised has led the federal government to suggest, and the states to acknowledge, that a cooperative approach to environmental issues might be more politically expedient. On the one hand, the Commonwealth wants (indeed, has international obligations) to pursue urgent national strategies for environmental protection and NRM, but would rather not come into direct conflict with the states; while, on the other hand, states that have traditionally had control over land use and environmental matters realise that if they do not respond to the Commonwealth’s concerns they risk being bypassed by expanding federal power if conflict ensues. It is in the interests of both state and federal governments, therefore, to try to work out cooperative solutions to environmental problems wherever possible.175 The traditional ‘states’ rights’ opposition to Commonwealth ‘interference’ in land use and environmental issues in the states has given way to the realisation that significant environmental issues really need to be dealt with on a national basis. For example, the then Premier of New South Wales, Mr Greiner, said in April 1990 that in many areas:176 … the states must defer to the Federal Government on strategies which contribute to the minimisation of global and national environmental problems. I firmly believe that we must reconsider our narrow obsession with ‘State rights’ … on many of the issues which face us on the environment, such an approach is both inappropriate and out of step with the nature of the task.

[page 174] The Premier was, however, careful also to point out that the Commonwealth had to assume corresponding financial responsibility. This was later to be an issue on which Queensland and the Commonwealth fought bitterly over the introduction of native vegetation clearance controls — Queensland demanding that the Commonwealth compensate landowners who were to be denied clearing ‘rights’, the Commonwealth equally as adamant that it was Queensland’s responsibility. The coming into force of this much-needed legislation, the Vegetation Management Act 1999 (Qld),177 was consequently delayed while the two governments squabbled. Nevertheless,

Commonwealth funding initiatives have indeed driven the implementation of many national environmental policies.178 5.56 From the Commonwealth’s point of view, the resolution of controversial resource issues by the High Court was neither appropriate nor politically acceptable. Litigation was time-consuming and expensive and, in any case, even if the Commonwealth was able to successfully assert its undoubtedly superior constitutional powers over state resources, those resources still had to be managed. In this respect, the states held the upper hand, since the Commonwealth had neither the institutional structure nor the desire to become an environmental manager of state natural resources. The election of the Howard government in 1996 foreshadowed a different approach to environmental protection by the Commonwealth than that pursued in the 1980s.

National policies and strategies 5.57 The impact of the different approach adopted in the 1990s and continued throughout the new millennium (cooperative federalism)179 is most noticeably marked not only by an absence of constitutional legal challenges but also by the cooperative development of national strategies and policies on a wide variety of matters of national environmental concern. The Commonwealth role under cooperative federalism is, first, to encourage and coordinate national approaches to environmental issues, relying on the fact that if the states and territories help to produce such strategies, they are likely to regard themselves as having greater ownership of them and are therefore more likely to implement them; and, second, to provide the ‘funding carrot’, promising to financially assist the states with implementation of agreed strategies. Consequently, a great deal of effort has gone into the production of national policies and strategies, with varying degrees of success. Some of the more important initiatives include: the National Forest Policy Statement;180 the Australian Weeds Strategy;181 the National Strategy for Ecologically [page 175] Sustainable Development;182 Australia’s Biodiversity Conservation Strategy;183 the National Action Plan for Salinity and Water Quality (now replaced by the National Landcare Program);184 the National Strategy for the Management of Coastal Acid Sulfate Soils;185 the National Programme of Action for the Protection of the Marine Environment from Land-based

Activities;186 Australia’s Native Vegetation Framework;187 the National Strategy and Action Plan for the role of Australia’s Botanic Gardens in Adapting to Climate Change;188 the Renewable Energy Target Scheme;189 the Strategy for Australia’s NRS 2009–2030;190 the National Waste Policy;191 the National Strategy on Energy Efficiency;192 and the National Climate Resilience and Adaptation Strategy.193 5.58 The development of national strategies suffers, of course, from the expected criticisms that: they are slow to be developed; they are too much affected by political considerations; they represent a lowest common denominator approach to NRM; and they are strong on motherhood statements of concern but come up short on positive action. On the other hand, the advantages are seen to be that: national, uniform approaches to national problems can be agreed on; there is nothing to prevent any party introducing policies or legislation that seek to go further than the agreed strategy; all policy and legal initiatives are in any case subject to political influences at any level of government; they form a strategic policy framework within which each party can take positive action that fully recognises the political, economic and social circumstances of that party; and they provide funding mechanisms for implementation. 5.59 The implementation of national strategies and policies is generally encouraged by the possibility of attracting Commonwealth funding; for example, through the [page 176] auspices of the Caring for Our Country initiative, now replaced by the National Landcare Programme.194 Prior to this, funding was provided from the Natural Heritage Trust Reserve. The Commonwealth Auditor-General indicated in a report in 1996–97 that the Commonwealth was unable to indicate in any detail the outcomes that had been achieved from NRM and environmental funding programs such as Landcare, Save the Bush, One Billion Trees and other programs.195 This suggested a general absence of

targeted outcomes and requirements for monitoring the effectiveness of such policies and projects, and a lack of performance standards on which an evaluation of effectiveness might be based. Following this strong criticism, the Commonwealth eventually launched an updated version of the Natural Heritage Trust (NHT2), which adopted a more integrated regional and local approach to spending initiatives with built-in targets and monitoring and evaluation criteria. A subsequent audit of NHT2 and the National Action Plan on Salinity and Water Quality (the NAP)196 showed that, although there had been clear improvement by adopting a regional approach for delivery, the quality and measurability of targets in regional plans was still a matter of concern; and that a lack of validated data and failure to agree on performance indicators still made it difficult to assess whether levels of financial input into, and output from, funded projects were achieving their stated objectives. The Caring for Our Country initiative, and now the National Landcare Programme, clearly articulate that the Australian Government is committed to demonstrating and accounting for intermediate and long-term outcomes and improvements from its natural resource management (NRM) investments. Monitoring and reporting on progress and improvement is an essential element of effective programme management. Funding for environmental initiatives may also be delivered through National Partnership Agreements, which are designed to reward states for the delivery of specified reform outputs or projects; for example, in relation to water and energy efficiency.197

Ministerial councils 5.60 Consultative processes between the Commonwealth and the states are formalised through ministerial councils, standing committees of senior officials, and specialist and ad hoc committees of various kinds. The then prime minister’s statement on the environment in July 1989 emphasised the role of ministerial councils in the development, for example, of national minimum environmental standards for air, water and noise quality, and that ‘commonly agreed environmental processes and [page 177] guidelines, where possible, will better achieve the objectives of the Commonwealth, states, industry, workers and the community’.198

5.61 COAG is the forum where the prime minister and state and territory premiers meet to discuss national issues and determine national policies.199 These can extend to environmental issues, particularly now that climate change and water are occupying so much political attention at a national level.200 The Inter-governmental Agreement on Murray–Darling Basin Reform (2008),201 for example, came out of this process, as well as current initiatives on energy efficiency and renewable energy targets (RETs).202 One current theme is a sustainable Australia, which aims to ensure sufficient resources are available for Australia’s population into the future and encompasses national water reforms and improved energy efficiency of buildings.203 5.62 Ministerial councils are generally comprised of state and federal ministers, supported by standing committees of officials nominated by the respective ministers that act in an advisory role to the councils, and that are themselves supported by a number of specialist subcommittees that provide information and advice on a wide variety of topics relevant to the work of the councils. As a cooperative and information-sharing arrangement, these ministerial councils have great potential to formulate and secure the adoption of longterm and wide-ranging national environment policies and their ability to do so is constrained only by political factors. One of the primary constraints is the COAG requirement for Best Practice Regulation, which requires that proposals emanating from ministerial councils run the gauntlet of the Office of Best Practice Regulation (OBPR)204 and that regulatory proposals be supported by cost–benefit analysis contained within a regulatory impact statement. Without this, the approval of COAG for ministerial council regulatory proposals is very difficult to secure. For example, proposals for the introduction of an EPR scheme (product stewardship) for e-waste were held up for a considerable period of time by this mechanism.205 5.63 The ministerial councils most relevant to environmental management were the Standing Council on Environment and Water (SCEW), which incorporated the National Environment Protection Council (NEPC),206 and the Standing Council on [page 178] Primary Industries (SCoPI). SCEW subsumed the former Environment Protection and Heritage Council (EPHC), and SCoPI subsumed the former Natural Resource Management Ministerial Council (NRMMC) and the Primary Industries Ministerial Council (PIMC). In 2013 the 22 existing

councils were abolished, including SCEW and SCoPI, and replaced by eight new councils, none of which specifically cover environment and natural resources.207 It must be assumed therefore that environment will henceforth be a primary focus of COAG itself rather than a ministerial council. Outside the formal COAG process, ministerial forums may be established for specific purposes, such as the cooperative management of the Great Barrier Reef,208 the development of NEPMs,209 and the Murray–Darling Basin210 Environment ministers have also agreed to meet on an ad hoc basis to progress national measures for environmental reform.211 Non-ministerial authorities are another important aspect of cooperative federalism. These generally take the form of national consultative committees comprised of officials and technical experts in specific subject areas for research purposes, for the provision of information and advice to governments, and for determining environmental and health protection standards for the use of products and equipment within Australia.212 The National Health and Medical Research Council (NHMRC)213 is a longestablished organisation of this type that, among other things, has been responsible for the development of recommended air pollution standards and assessment of pesticides. Another such organisation, which was first formed in 1917, is the Murray–Darling Basin Authority (MDBA),214 which regulates the cooperative use of the waters of the Murray River between the five interested riparian states and the Commonwealth. The Australian Pesticides and Veterinary Medicines Authority is responsible for regulating permission to use agricultural chemicals,215 while the National Industrial Chemicals Notification and Assessment Scheme performs a similar role with respect to the approval of industrial chemicals for use within Australia.216 There is also an Australian Radiation Protection and Nuclear Safety Agency,217 and a Threatened Species Scientific Committee that advises the minister on listings under the EPBCA.218 The Australian Heritage Council (AHC), established under the Australian Heritage Council Act 2003 (Cth), advises the minister on conserving and protecting places included, [page 179] or being considered for inclusion, in the National Heritage List or Commonwealth Heritage List, kept under the EPBCA. The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC)219 advises government on the impact that coal seam gas and large coal mining development may have on Australia’s water resources, while the Product Stewardship Advisory Group220 advises the Environment

Minister about the development of a list of products proposed to be considered for some form of accreditation or regulation under the Product Stewardship Act 2011.

The Inter-Governmental Agreement on the Environment 5.64 A special Premiers’ Conference held in October 1990 endorsed a cooperative approach to environmental issues, in order to give greater certainty to government and business decision-making while at the same time pursuing better environmental protection. The statement issuing from the conference identified a national approach to environmental impact assessment (EIA), air and water quality standards, and control of genetically engineered organisms, as well as the development of improved processes for the assessment of forest resources as being of particular importance, although biodiversity and climate change were also flagged.221 This process resulted in the formation of an Inter-Governmental Agreement on the Environment (IGAE) in 1992 by which the Commonwealth, states, territories and local government agreed to integrate environmental considerations into government decision-making at all levels and pursue the principles of ESD.222 The parties also recognised that ‘strong, growing and diversified economies (committed to the principles of ESD) can enhance the capacity for environmental protection’.223 To achieve these objectives the parties committed themselves to: ensuring that environmental issues associated with a proposed project, program or policy would be taken into consideration in the decisionmaking process; ensuring that there would be a proper examination of matters which significantly affect the environment; and ensuring that measures adopted should be cost-effective and not be disproportionate to the significance of the environmental problems being addressed.224 5.65 Although the IGAE recognised that the states have primary responsibility for environmental management within their jurisdiction, it also recognised the legitimate [page 180]

role of the Commonwealth in respect of national environmental issues.225 Before committing itself to any international agreements, however, the Commonwealth undertook to consult with the states. Where the Commonwealth and the states both had an interest in a matter of environmental concern, then each party could approve or accredit the practices, procedures and processes of the other. To avoid duplication of effort and unnecessary expense and political friction, the parties would then give ‘full faith and credit’ to the results or outcomes of such practices, procedures and processes as a basis for decision-making when exercising their own responsibilities. This did not mean that one party must be bound by the decisions taken by the other, merely that the parties would respect the validity of each other’s information gathering and other evaluation processes. Each party could quite legitimately come to different conclusions using the same processes. By agreement, the parties could make provision for how unforeseen circumstances or flawed executions are taken into account; and this process would not preclude other factors from being taken into account in addition to those given full faith and credit. It is clear that the IGAE was not intended to constitute a binding legal document so much as a statement of intent or aspiration — a ‘political compact’. These aspirations were, however, reflected in two pieces of Commonwealth legislation: the National Environment Protection Council Act 1994226 and the EPBCA. The EPBCA is considered in detail in Chapter 6.

1.

Commonwealth of Australia Constitution Act s 51.

2.

These are Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard and McDonald Islands, Lord Howe Island, Macquarie Island, and Norfolk Island. Australia also claims the Australian Antarctic Territory, but this is not formally recognised in international law; on ‘sovereignty’, see further 4.25.

3.

See generally Cristoff, ‘Degreening Government in the Garden State: Environment Policy Under the Kennett Government’ (1998) 15 EPLJ 10.

4.

Crawford, ‘The Constitution’, in Bonyhady (ed), Environmental Protection and Legal Change, Federation Press, Sydney, 1992.

5.

The proposal was ultimately rejected by the Constitutional Commission, AGPS, 1988, despite widespread support from environmental groups and the National Environmental Law Association.

6.

See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 405.

7.

Webster and Williams, ‘Can the High Court save the Murray River?’ (2012) 29 EPLJ 281 at 290 suggest that this provision should be viewed more as a limitation on Commonwealth power than a wider guarantee of states’ rights to water. Such an interpretation may also restrict the role of the High Court in adjudicating interstate river disputes: see Preston-Samson, ‘Navigating Muddy

Waters: Does the High Court Have a Role in Adjudicating Interstate River Disputes?’ (2012) 29 EPLJ 373. More broadly, see also Kildea and Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ (2010) 32(4) Sydney Law Review 595. 8.

Northern Territory (Self-Government) Regulations 1978 reg 14, promulgated under the authority of the Northern Territory (Self-Government) Act 1978 s 35; Australian Capital Territory (SelfGovernment) Act 1988 s 22 and Sch 4; Norfolk Island Act 1979.

9.

See Crawford, ‘The Constitution and the Environment’ (1991) 13 Syd LR 11 at 16.

10. See generally Crommelin, ‘Commonwealth Involvement in Environment Policy: Past, Present and Future’ (1987) 4 EPLJ 101. 11. See Chapter 14. 12. See Chapter 11. 13. See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395. 14. See further 5.49. 15. See 5.11. 16. Customs (Prohibited Exports) Regulations 1958 (Cth). 17. Customs Act 1901 (Cth). 18. See generally Crawford, note 9 above; Lindell, ‘Scope of the Commonwealth’s Environmental Powers and Responsibilities’ in Leadbeter et al (eds), Environmental Outlook No 3: Law and Policy, Federation Press, Sydney, 1999, p 107. 19. Biosecurity Act 2015 (Cth) s 24. 20. See Lindell, ‘Scope of the Commonwealth’s Environmental Powers and Responsibilities’ in Leadbeter, Gunningham and Boer (eds), Environmental Outlook No 3: Law and Policy, Federation Press, Sydney, 1999, p 123. 21. See Crawford, note 9 above, at 27. 22. Water Act 2007 (Cth) ss 9 and 9A. And see Rothwell, ‘International Law and the Murray–Darling Basin Plan’ (2012) 29 EPLJ 268. 23. See 5.55. 24. For example, Water Efficiency Labelling and Standards Act 2005 (Cth) s 8. Other examples of ‘cooperative’ approaches to the passage of Commonwealth legislation would be the Regional Forest Agreements Act 2002 (Cth), and provisions of the Water Act 2007 (Cth) that relate to the Murray– Darling Basin Agreement. 25. For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 10; Water Efficiency and Labelling Standards Act 2005 (Cth) s 11. 26. For example, National Greenhouse and Energy Reporting Act 2007 (Cth) (NGERA) s 5. 27. See, for example, Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Pt 13A; Hazardous Wastes (Regulation of Exports and Imports) Act 1989 (Cth). 28. Direct control would raise the possibility of using the Constitution s 109 to override any inconsistent state laws. The Commonwealth can always use indirect controls to limit exports, as shown, for example, by Murphyores. 29. Lindell, see note 20 above, p 112. 30. See Chapter 16. The Product Stewardship Act 2011 (Cth) cites meeting ‘international obligations’ and ‘reducing greenhouse gases’ as objects of the Act, without further elucidation: see s 4(3).

31. The Commonwealth is less likely to pursue protectionist policies that favour particular states. 32. See 5.42. 33. Intergovernmental Agreement on the Environment 1992 art 2.5.2. 34. That is, the substantive provisions of a treaty are not binding within Australia. Ratification may, however, create ‘legitimate expectations’ that decision-making will comply with the treaty; and in this case may lead to a procedural right to be informed should the decision-maker determine not to make the decision in compliance with the treaty. The implications of this approach are considered further in Blay and Piotrowicz, ‘The Teoh Case: Implications for Environmental Law in Australia’ (1996) 13 EPLJ 40; Pearson, ‘Incorporating ESD Principles in Land Use Decision-making: Some Issues after Teoh’ (1996) 13 EPLJ 47. For indirect influences of international policies and laws on Australian law, see 4.41. 35. See generally Fisher, ‘The Impact of International Law Upon the Australian Environmental Legal System’ (1999) 16 EPLJ 372. 36. For commentary, see Goldring, ‘Dams or Floodgates’ (1983) 8 LSB 156; Wilcox, ‘The Dam Case — Implications for the Future’ (1983) 11 Habitat 32; Sornarajah (ed), The South-West Dam Dispute: The Legal and Political Issues, University of Tasmania, Hobart, 1983; Lane, ‘The Federal Parliament’s External Affairs Power: The Tasmanian Dam Case’ (1983) 57 ALJ 554; Bates, ‘The Tasmanian Dam Case and its Significance in Environmental Law’ (1984) 2 EPLJ 325. 37. For commentary on whether the Commonwealth would be able to rely on the external affairs power to meet Australia’s commitments under the Rio Declaration on sustainable development, see Marlin, ‘The External Affairs Power and Environmental Protection in Australia’ (1996) 24 FLRev 71. 38. For a perceptive political commentary of the Tasmanian Dam case and subsequent disputes over world heritage issues, see Davis, ‘Federal–State Tensions in Australian Environmental Management: The World Heritage Issue’ (1989) 6 EPLJ 66; Tighe, ‘Environmental Values, Legalism and Judicial Rationality: The Tasmanian Dam Case and its Broader Political Significance’ (1987) 4 EPLJ 134. For an accounting perspective, see Burritt and Gibson, ‘Who Controls World Heritage Listed Assets?’ (1993) 10 EPLJ 278; and also Suter, ‘Shark Bay, Western Australia: A Case Study of a UNESCO World Heritage Listing’ (1994) 112 EPLJ 31. 39. See Lindell, note 20 above, p 119. 40. Evans, ‘The Federal Government and Environmental Law’ (1984) 2 EPLJ 325; Crawford, note 9 above, at 23 agrees. Where the obligations of a treaty ratified by Australia have not been translated into domestic law, then no private citizen can enforce any breach of purely international obligations: see Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270. 41. Crawford, ‘The Constitution and the Environment’, unpublished paper delivered to a workshop on ‘Our Common Future’, Faculty of Law, University of Tasmania, July 1990, p 17. 42. See Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 397. By contrast, of course, the Kyoto Protocol does impose legally binding obligations. 43. See generally Tsamenyi and Bedding, ‘The World Heritage Convention in the High Court: A Commentary on the Tasmanian Forests Case’ (1988) 5 EPLJ 232; Tsamenyi, Bedding and Wall, ‘Determining the World Heritage Values of the Lemonthyme and Southern Forests: Lessons from the Helsham Inquiry’ (1989) 6 EPLJ 79. 44. Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (the Helsham Inquiry). 45. Certain provisions of the Act are expressed to be consistent with the WTO Sanitary and Photosanitary Agreement (s 5); and the Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or vessels, in accordance with UNCLOS (s 30).

46. Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 46 ALR 625; State of Victoria v Commonwealth of Australia (1996) 187 CLR 416. This power of implementation is not confined to obligations set out in the Treaty but may extend to carrying out recommendations adopted by the Treaty parties so long as those recommendations are an appropriate way of carrying out obligations under the Convention: see State of Victoria v Commonwealth of Australia (1996) 187 CLR 416 at 509. 47. Commonwealth v Tasmania, note 46 above. 48. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 14. 49. Richardson v Forestry Commission [1988] HCA 10. 50. See Mason J at 147; Murphy J at 179; and Deane J at 269. This conclusion is also supported by Crawford, note 9 above, at 25. 51. Wilcox, ‘The Dam Case — Implications for the Future’ (1983) 11 Habitat 32 at 33. 52. ‘The Powers of the States and the Commonwealth to Protect Heritage’, unpublished paper delivered to the National Environmental Law Association Conference, Hobart, 1985, p 18. 53. Crawford, note 9 above, at 25. 54. Indeed governments have been busy corporatising government enterprises; for example, with respect to water services. ‘Trading’ also does not denote necessarily making a profit; not-for-profit corporations can still be trading corporations. Whether this power would extend to regulating the activities of local government corporations, however, is still an open question, although Queensland has in fact legislated to remove the corporate status of most local governments; see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 401-403. 55. These issues are dealt with in greater detail in Chapter 18. 56. A grant under s 96 is valid even if the funds are to be used by a state to acquire property other than on just terms: Arnold v Minister Administering Water Management Act 2000 [2008] NSWCA 338. See, however, Spencer v Commonwealth [2008] FCA 1256, discussed at 5.35, in relation to the argument that if such funds are provided as a result of an intergovernmental agreement or under legislation in circumstances that return a benefit to the Commonwealth, that just terms compensation may be payable. 57. The Tasmanian Native Forestry Agreement Act 1979 (Cth), which provides financial assistance to Tasmania to establish eucalypt plantations, for example, refers also to re(af)forestation and rehabilitation. 58. These arrangements were considered in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 and Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3. 59. Now repealed by the Arts, Environment and Territories Legislation Amendment Act 1992 (Cth). 60. Superseded now by the Murray–Darling Basin Agreement and the Living Murray Initiative (defined in the Water Act 2007 (Cth) s 18H as the Intergovernmental Agreement on Addressing Water Over-allocation and Achieving Environmental Objectives in the Murray–Darling Basin). 61. See further 5.27. For a useful survey of the history of implementation of the National Heritage Trust, see Spencer v Commonwealth [2008] FCA 1256. 62. These terms are defined in ss 15–17. 63. Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 404. 64. See Bubna-Litic and Leeuw, ‘Can Our Taxation System Support “New” Sustainable Industries: The Argument for Ecotaxes’ (1999) 16 EPLJ 140.

65. See further 8.15 and following. 66. Income Tax Assessment Act 1997 (Cth) Subdiv 30-DB. See also Div 31 (conservation covenants). 67. Income Tax Assessment Act 1997 (Cth) s 30.55. 68. Income Tax Assessment Act 1997 (Cth) Subdiv 30-E. 69. Product Stewardship (Oil) Act 2000 (Cth); Excise Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 (Cth); Customs Tariff Amendment (Product Stewardship for Waste Oil) Act 2000 (Cth); Customs Tariff Amendment Act (No 2) 2002 (Cth). The Product Grants and Benefits Administration Regulations 2000 (Cth) set out specific criteria that must be met by a recycler wishing to claim benefits. 70. For example, Protection of the Environment Operations (Waste) Regulation 2005 (NSW) Pt 2; Environment Protection Act 1970 (Vic) Pt 9 Div 3. 71. The Energy Grants and Other Legislation Amendment (Ethanol and Biodiesel) Act 2015 (Cth) abolishes this exemption; while the Excise Tariff Amendment (Ethanol and Biodiesel) Act 2015 (Cth) reduces the rates of excise duty for domestically manufactured fuel ethanol and biodiesel to nil for one year from 1 July 2015, followed by incremental increases in duty for domestically manufactured fuel ethanol and biodiesel annually until 2020. 72. See Simmons, ‘Why Nothing in this World Is Certain Except Death and (Environmental) Taxes’ (2011) 28 EPLJ 368. 73. Income Tax Assessment Act 1997 (Cth) ss 40.755 and 40.760. 74. Income Tax Assessment Act 1997 (Cth) s 43.20(5). 75. Income Tax Assessment Act 1997 (Cth) Pt 3-50. 76. Income Tax Ruling IT 2685. 77. See ‘Trust for Nature Shining a Light on Law and Markets in Private Land Conservation: Insights and Issues from Victorian Landowners’ (2014). Available at . 78. See Black, ‘Fringe Benefits Tax and the Company Car: Aligning the Tax with Environmental Policy’ (2008) 25 EPLJ 182. 79. Henry et al, ‘Australia’s Future Tax System — Report to the Treasurer’, Canberra, 2009. 80. See recommendations 58–60. 81. Constitution s 81; Davis v Commonwealth (1988) 63 ALJR 35. For an example in relation to Commonwealth and national heritage, see Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) ss 324ZB and 341ZG. 82. See Crawford, note 9 above, at 17. 83. See 5.23. 84. Pape v Federal Commissioner of Taxation [2009] HCA 23; Williams v Commonwealth [2012] HCA 23; Williams v Commonwealth [2014] HCA 23; and see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395, 406. 85. And in any case new limitations on Federal spending powers still leave it open to the Commonwealth to pursue its environmental objectives through direct purpose grants (see 5.23). 86. See . 87. Sections 19 and 20. 88. Sections 10–14 describe the primary objectives of these projects.

89. Defined in s 15. 90. Defined in s 16. 91. Defined in s 17. 92. See . 93. See further Chapter 18. The Henry Review, referred to at 5.26 above, recommended that industry assistance schemes should be regarded as transitional and ultimately phased out: see recommendations 58, 59. 94. Although expenditure on environmental projects is authorised under the Financial Framework (Supplementary Powers) Regulations 1997 Sch 1AA, the mere fact that expenditure is authorised by legislation is not enough if that legislation cannot be justified under any referable head of power under the Constitution; see Pillai and Williams, ‘Commonwealth Power and Environmental Management: Constitutional Questions Revisited’ (2015) 32 EPLJ 395. 95. Kartinyeri v Commonwealth (1998) 195 CLR 337. Such a law may also be either for the benefit or the detriment of a race. 96. Sections 384–390A. 97. New South Wales v Commonwealth (1975) 8 ALR 1; Bonser v La Macchia (1969) 122 CLR 177. 98. See 5.31. 99. Coastal Waters (State Title) Act 1980 (Cth); Coastal Waters (State Powers) Act 1980 (Cth); Coastal Waters (Northern Territory Title) Act 1980 (Cth); Coastal Waters (Northern Territory Powers) Act 1980 (Cth). 100. The licensing regimes that apply to the exploration for, and recovery of, minerals and petroleum in offshore areas are contained in the Offshore Minerals Act 1994 (Cth) and the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). One of the basic principles in relation to offshore minerals and petroleum under the Settlement is that the Commonwealth, the states and the Northern Territory should try to maintain, as far as practicable, common principles, rules and practices in regulating and controlling the exploration for, and exploitation of, these natural resources: Offshore Minerals Act 1994 (Cth) s 3; Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 5. See also Wulf, ‘Offshore Petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EBCA); Consideration of “All Adverse Impacts”’ (2005) 22 EPLJ 296. 101. Environment Protection (Sea Dumping) Act 1981 s 9; Protection of the Sea (Prevention of Pollution from Ships) Act 1983 s 9. 102. Sawer, in the House of Representatives First Report on the Inquiry into Hazardous Chemicals, Parl Papers 104, 1982; App VII, p 78; Booker, ‘Section 51(38) of the Constitution’ (1981) 4 UNSWLJ 91; Crommelin, ‘Offshore Mining and Petroleum — Constitutional Issues’ (1981) 3 AMPLJ 191; Lumb, ‘Section 51(xxxviii) of the Commonwealth Constitution’ (1981) 55 ALJ 328; Crawford, ‘Constitutional Issues Relating to Environmental Management’, unpublished paper delivered to a workshop on Industry and Environmental Law, Adelaide University School of Law, May 1984. 103. See note 102 above, except Crommelin. 104. Bonser v La Macchia (1969) 122 CLR 177. 105. Coastal Waters (State Powers) Act 1980 (Cth) s 5(c). 106. Fisheries Management Act 1991 (Cth). 107. See also Walrut, ‘The Legislative Powers of the Commonwealth and States Affecting Aquaculture’ (2002) 19 EPLJ 415. 108. See Macintosh and Cunliffe, ‘The Significance of ICM in the Evolution of s 51(xxxi)’ (2012) 29

EPLJ 297 at 299. 109. Similar considerations underlie the conferment of property rights under the Offshore Petroleum Act 2006 (Cth); see Edwards, ‘Interactions Between Petroleum Operations and Carbon Capture and Storage Operations’ (2009) 26 EPLJ 152 at 155. 110. Commonwealth v WMC Resources Ltd [1998] HCA 8 at [17] per Brennan CJ. 111. See also Esposito v Commonwealth of Australia [2014] FCA 1440. 112. The statement of claim is set out in full in Spencer v Commonwealth of Australia [2009] FCAFC 38 at [6]. 113. The Natural Heritage Trust of Australia Act 1997 (Cth) and the Natural Resources Management (Financial Assistance) Act 1992 (Cth). Such a condition might not be formally set out in the agreement, but could arise out of negotiations conducted and arrangements agreed to by different levels of government: see Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [31]. 114. On rights to compensation generally, see 2.20. 115. Spencer v Commonwealth of Australia [2009] FCAFC 38. 116. Spencer v Commonwealth of Australia (2010) 241 CLR 118. For commentary on this case, see Lloyd, ‘Compulsory Acquisition and Informal Agreements: Spencer v Commonwealth’ (2011) 33(1) Sydney Law Review 137. See also Bell, ‘Tree Clearing, Hunger Strikes and Kyoto Targets — The Need for a Middle Ground’ (2011) 28 EPLJ 201. 117. Four justices were ready to accept this point; three had doubts but found that they did not need to decide it, so as Fisher, ‘Water Law, the High Court and Techniques of Judicial Reasoning’ (2010) 27 EPLJ 85 at 92 remarks, the status of statutory water entitlements as ‘property’ remains somewhat equivocal. In Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3, a case involving the same set of provisions as, but decided after, the ICM case, Gummow and Crennan JJ also remarked (at [55]) ‘the appellants had no common law right to the extraction and use of groundwater for irrigation. They had the right (or, more accurately, the liberty) to do so given by their bore licences’. Note that one of the fundamental purposes of water reforms under the NWI was to enable trading and confer security in water entitlements: . Trading and security are hallmarks of ‘property’: see further 3.3. 118. Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 145 per Mason J. 119. Per Hayne, Kiefel and Bell JJ at [153]. Haydon J dissented; for an analysis of the reasoning, see Fisher, note 117 above. And for an analogous case involving a reduction in water entitlements under the Basin Plan see Lee v Commonwealth of Australia [2014] FCA 432. It has been argued that this leaves open the possibility that reducing and reallocating water entitlements to meet new government targets could provide an advantage to government and therefore represent an acquisition: see Maguire and Phillips, ‘The Role of Property Law: An Examination of Environmental Markets’ (2011) 28 EPLJ 215 at 228. It may also be argued, of course, that tradeable statutory rights such as carbon units as well as water, fisheries and offshore petroleum entitlements are now more likely to be regarded as extinguishable without the necessity to provide just terms compensation: see Macintosh and Cunliffe, ‘The Significance of ICM in the Evolution of s 51(xxxi)’ (2012) 29 EPLJ 297 at 315. Note that in a recent case before the English High Court, an emissions trading credit was treated as property: Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch). 120. A point made by Gray, ‘The Legal Framework for Water Trading in the Murray–Darling Basin’ (2012) 29 EPLJ 328 at 342. 121. ‘Evaluating the Success or Failure of the EPBC Act; A Response to McGrath’ (2007) 24 EPLJ 81 at 82. This commentary was responding to assertions made by McGrath, ‘Swirls in the Stream of Australian Environmental Law; Debate on the EPBC Act’ (2006) 23 EPLJ 165 that the Environment

Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) could not generally be characterised as a law with respect to the acquisition of property. McGrath’s article was itself a response to an earlier article by Macintosh and Wilkinson, ‘EPBC Act: The Case for Reform’ (2005) 10(1) AJNRLP 139, which discussed this point. 122. See (2007) 24 EPLJ 81, note 102 above, at 83. For discussion of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), see Chapter 6. 123. Section 5(1)(g). 124. Sections 9 and 9A. 125. Constitution Acts 1902 (NSW); 1867 (Qld); 1934 (SA); 1934 (Tas); 1975 (Vic); 1889 (WA); Australian Capital Territory (Self-Government) Act 1988 (Cth); Northern Territory (SelfGovernment) Act 1978 (Cth). 126. (1989) 63 ALJR 687 at 691. 127. (1989) 63 ALJR 687 per Dawson, Toohey and McHugh JJ at 693. 128. See note 127 above. 129. For example, Mining Regulation 2010 (NSW) cll 62 and 63; Sch 6; Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2010 (Vic) cll 17 and 18; Sch 3. And for royalty rates in New South Wales, for example, see . 130. See further 7.40 and following. 131. See Lane, ‘The Present Test for Invalidity under Section 92 of the Constitution’ (1988) 62 ALJ 604; Taberner and Lee, ‘Section 92 and the Environment’ (1991) 65 ALJ 266. 132. (1988) 78 ALR at 67. 133. For an enlightened discussion of this case and of the whole issue of interstate trade in wildlife, see Preston, ‘Section 92 and Interstate Trade in Wildlife: A Moral Question’ (1987) 4 EPLJ 175. 134. (1990) 169 CLR 436 at 473. 135. Cole v Whitfield (1988) 78 ALR 42; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436. A claim by South Australia that Victorian trading rules for water breached s 92 as being protectionist and not appropriate and adapted to a non-protectionist purpose, was settled before the claim was brought to court; see Webster and Williams, ‘Can the High Court save the Murray River?’ (2012) 29 EPLJ 281 at 289–90. 136. Except in an emergency, the Act applies to pests (a) if the pest is capable of: (i)

infesting humans, animals or plants; or

(ii) acting as a vector for a disease; or (iii) causing disease in any other way; or (b) the pest is an invasive pest; Biosecurity Act 2015 (Cth) ss 25 and 26. 137. Biosecurity Act 2015 (Cth) s 28. 138. Biosecurity Act 2015 (Cth) Ch 6. 139. Biosecurity Act 2015 (Cth) Ch 3. A Biosecurity Import Risk Analysis is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, to a level that achieves the appropriate level of protection (ALOP) for Australia; Biosecurity Act 2015 (Cth) s 166. The ALOP is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero, in accordance with Australia’s rights and obligations under the World Trade Organization Agreement on Sanitary and Photosanitary

Measures (SPS Agreement); Biosecurity Act 2015 (Cth) s 5. On the SPS Agreement see 4.40. 140. Allders International Pty Ltd v Commissioner for State Revenue (Victoria) (1996) 140 ALR 189. This is so even if the Commonwealth place is leased to another entity for commercial purposes. 141. Constitution s 52; Commonwealth Places (Application of Laws) Act 1970 s 4(2)(a); Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 95 LGERA 58; Commonwealth v Western Australia (1999) 196 CLR 392; Durable Building Products Pty Ltd v Sutherland Shire Council (2000) 111 LGERA 106; Heritage Council (Qld) v Corp of Trustees of Roman Catholic Archdiocese of Brisbane (2000) 110 LGERA 193; South Sydney City Council v Paliflex Pty Ltd (2003) 129 LGERA 384. The National Environment Protection Measures (Implementation) Act 1998 makes provision for the possible application of state laws to enable the objects of National Environment Protection Measures (NEPMs) to be achieved: see ss 12–15. 142. When the Commonwealth disposes of such land it ceases to be a Commonwealth place. This does not mean, however, that local planning schemes will automatically apply to the land. To apply to such a place, a planning scheme may need to be specifically amended to provide for compliance once the property has been disposed of: Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 45 ALJR 9; Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135. 143. Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143; BMG Resources Ltd v Beaconsfield Municipal Council [1988] Tas R 142; Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135. 144. Ventana v FAC (1997) 95 LGERA 58. 145. For example, airports; see Commonwealth Places (Application of Laws) Regulation 2014. 146. State laws can only apply to Commonwealth places if s 4 of this Act renders them ‘applied laws’. Only if state environmental laws are ‘applied laws’ would a state court have jurisdiction to apply state environmental laws: see, for example, Corowa v Queensland (2006) 149 LGERA 1. 147. Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93. 148. See the provisions of the COAG Agreement at 5.54. 149. In Bayside City Council v Telstra Corp Ltd; Moreland City Council v Optus Vision Pty Ltd; Warringah Council v Optus Vision Pty Ltd; Hurstville City Council v Telstra Corp Ltd (2004) 133 LGERA 65, for example, s 109 applied to defeat levies that were imposed on the telecommunications carrier by state laws, which the High Court deemed discriminatory and which conflicted with the clear provisions of the Telecommunications Act 1997 (Cth) s 44. 150. Commercial Radio Coffs Harbour v Fuller (1986) 60 LGRA 68; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 (both federal and territory approval requirements applied to a road project); Development Assessment Commission v 3GIS Pty Ltd [2007] 154 LGERA 72 (application of state development laws to telecommunications facilities); although even where state and federal laws operate concurrently, ‘the constitutional paramountcy of federal law is a contextual consideration that informs the resolution of the contested issues of interpretation’: see Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12; (2006) 145 LGERA 386. 151. Defence Act 1903 (Cth) s 122A. 152. Australian Nuclear Science and Technology Organisation Act 1987 s 7A. 153. See also Durable Building Products Pty Ltd v Sutherland Shire Council, note 141 above. 154. Corowa v Queensland (2006) 149 LGERA 1. 155. Schedule 3, s 37; see, for example, Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51.

156. Schedule 3, s 28. 157. Schedule 3, ss 15, 27, 28 and 55. And see Lee, ‘Public Engagement and the Installation of Wireless Facilities Exempt from Local Planning Requirements’ (2007) 13 LGLJ 131. 158. Schedule 3, ss 50 and 51. 159. Schedule 3, s 18. 160. Schedule 3, s 17. 161. Schedule 3, s 10. 162. Schedule 3, s 9. 163. Schedule 3, s 11. 164. ‘The Environmental Impact of Commonwealth Activities and Places in Victoria’, Parliament of Victoria, 1994, p 77. 165. See note 165 above, p 102. 166. Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254. 167. Commonwealth v Bogle (1953) 89 CLR 229; Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. 168. Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 71 ALJR 1254. A majority of the court held that, while the Commonwealth is immune from state laws that purport to modify the nature of executive power vested in the Commonwealth Crown (its ‘capacities’, rights, powers, privileges and immunities), it was not immune from legislation that merely sought to regulate activities entered into by the Commonwealth in exercise of those capacities. In this case, state legislation that purported to affect the Commonwealth as a landlord was held to apply to the Commonwealth. In the context of environmental regulation, the distinction may be particularly elusive. 169. Legal Briefing, ‘The Commonwealth’s Implied Constitutional Immunity from State Law’ No 36, 30 August 1997; and see Bradbury, ‘Federal Immunity and Compliance’, unpublished paper delivered to the National Environmental Law Association Conference, Canberra, May 1998. 170. COAG, Heads of Agreement, November 1997, Attachment 3, cl 2(c), (d). 171. Heads of Agreement, Attachment 3, cl 2(a), (b). 172. Heads of Agreement, Attachment 3, cl 4. 173. Heads of Agreement, Attachment 3, cl 3. A similar commitment is made for exemptions: cl 5. 174. Heads of Agreement, Attachment 3, cl 6. 175. On world heritage issues, see Davis, ‘Federal–State Tensions in Australian Environmental Management: The World Heritage Issues’ (1989) 6 EPLJ 66. 176. Greiner, ‘The New Environmentalism: A Conservative Perspective’, paper released by the NSW Premier’s Office, Sydney, 22 April 1990, p 6. 177. See Kehoe, ‘Land Clearing in Queensland’ (2006) 23 EPLJ 148. 178. See 5.57. 179. For an interesting review of how ‘cooperative federalism’ has worked in the United States in respect of environment protection and comparisons with the Australian situation, see Battle, ‘Environmental Law and Cooperative Federalism in the United States’ (1985) 2 EPLJ 302. 180. See . 181. See . 182. See . 183. See . 184. See . 185. See . 186. See . 187. See . 188. See . 189. See . 190. See . 191. See . 192. See . 193. See . 194. See . 195. ‘Commonwealth Natural Resource and Management Programs’, Auditor-General Performance Audit, Report No 36, AGPS, 1996–97. For a useful survey of the history of implementation of the NHT and National Action Plan on Salinity and Water Quality, see Spencer v Commonwealth [2008] FCA 1256. 196. Regional Delivery Model for the Natural Heritage Trust and the National Action Plan for Salinity and Water Quality, Auditor-General Performance Audit, Report No 21, AGPS, 2007–08. 197. See . 198. Hawke, Towards a Closer Partnership, speech delivered at the National Press Club, Canberra, July 1990, p 3. 199. See . 200. See . 201. See Chapter 18. 202. See Chapter 17. 203. See . 204. See . 205. See further Chapter 16. And for further commentary on the political context in which these requirements are set, see Dovers, ‘Precautionary Policy Assessment for Sustainability’, in Fisher et al (eds), Implementing the Precautionary Principle: Perspectives and Prospects, Edward Elgar, Cheltenham, 2006. 206. See . The functions of the NEPC are to make NEPMs and to assess and report on the implementation and effectiveness of NEPMs in participating jurisdictions. See further 15.2 and following. 207. See . 208. See . 209. See 15.2.

210. See . 211. See . 212. For a full list of councils and consultative committees relevant to the work of the federal Department of Sustainability, Environment, Water, Population and Communities, see . 213. See . 214. See . 215. See . 216. See . 217. See . 218. For discussion on threatened species, see Chapter 14. 219. See . 220. See . 221. IGAE Schs 5 and 6. 222. The agreement is set out in the Schedule to the National Environment Protection Council Act 1994 (Cth). 223. IGAE s 3.3. 224. IGAE s 3.4. The parties then go on to commit themselves to the four principles of sustainable development, discussed further in Chapter 8. 225. Section 2.2. These are expressed to relate to foreign policy and international obligations, environmental effects reaching beyond one state or into the marine environment, and facilitating the development of national environmental standards and guidelines. 226. See further 15.2 and following.

[page 181]

Chapter 6 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) Introduction 6.1 This chapter analyses in some detail the Commonwealth’s principal piece of environmental legislation. There are four parts to this: 1.

the application of the Act;

2.

the referrals process;

3.

the assessment process;

4.

the approvals process.

Other aspects of the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA), such as recognition of protected areas and threatened and migratory species, are dealt with in future chapters.

Application of the Act 6.2 The EPBCA1 is the outcome of a decade of debate about what ought to be the Commonwealth’s legitimate legal role in environment protection. Prior to this, it was never entirely certain what legal responsibilities the Commonwealth might adopt, and Commonwealth interest in an issue might only surface in the context of a dispute about resource use and consequent assertion of Commonwealth legislative power; for example, the Tasmanian Dam case discussed at 5.11. The EPBCA replaces the environmental assessment (EA) provisions of the

former Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act), under which [page 182] Commonwealth EA of projects had been conducted for nearly 25 years.2 The EPIP Act was not without its problems3 and a number of significant court challenges were made in relation to decisions taken under it. This Act and its administrative procedures effectively extended to all projects that were to be undertaken by a Commonwealth government department or authority,4 or which required Commonwealth approval or finance. First, these encompassed works or projects undertaken by Commonwealth departments and authorities, for example, defence projects, railways, national highways, airports, postal and telecommunication facilities and developments on Commonwealth land. Second, grants to state governments for specific programs, such as road projects and international standard sporting facilities, and third, proposals that required Commonwealth approval, usually in relation to the export of primary products, such as minerals or woodchips, or the application of foreign investment to a project, such as a tourist facility. The procedures, however, only applied to action undertaken by or on behalf of the Commonwealth, not to projects proposed by other entities, such as private corporations seeking Commonwealth approvals. In addition, the proposal also had to affect the environment to a significant extent5 and this was a matter that had to be determined by the Commonwealth authority or minister responsible for the proposed action (referred to as the ‘Action Minister’), not by the Environment Minister. Not surprisingly, this aspect of the procedures came under heavy criticism. It was the duty of the Action Minister to refer a ‘proposed action’ (that is, a matter referred to in s 5 of the Act) to the Department of Arts, Sport, Environment, Tourism and Territories (DASETT) and to designate the person or authority that would be responsible for undertaking the development (the ‘proponent’ of the action).6 The procedures also came to be regarded by the Commonwealth as imposing unnecessarily stringent requirements for EA on extensions of projects, particularly forestry operations, that had already been assessed in the past, and for which the Commonwealth considered there would be no significant additional impacts.7 [page 183] 6.3 The EPBCA8 retains the concept of significant environmental impact, but places the responsibility for determining this with the environment minister. The EPBCA also, unlike the EPIP Act, categorically defines the

environmental issues in which the Commonwealth is interested in conducting assessments before issuing Commonwealth approvals (matters of national significance and Commonwealth areas and activities).9 It also introduces procedures for strategic assessment of policies, plans and programs, as well as actions. 6.4 The EPBCA operates concurrently with state and territory legislation, which means that in addition to state or territory approvals for projects and activities, a proponent may also need to gain Commonwealth approvals. Commonwealth initiatives to reduce ‘green tape’,10 however, seek to streamline this process as much as possible by accrediting state and territory EAs for Commonwealth purposes.11 6.5 The EPBCA concentrates on those ‘matters of national environmental significance’ first flagged in the COAG Agreement 1997, and augmented as required, namely: those that may have significant impact on declared world heritage properties;12 those that may have a significant impact on a national heritage place (added in 2003);13 those that may have significant impact on declared Ramsar wetlands;14 [page 184] those that may have significant impact on listed threatened species or endangered communities;15 those that may have significant impact on listed migratory species;16 nuclear actions17 that may have significant impact on the environment; actions in Commonwealth marine areas18 that may have a significant impact on the environment; actions within the Great Barrier Reef Marine Park that may have a significant impact on the environment (added in 2009);19 protection of water resources from coal seam gas development and large coal mining development (added in 2013);20 and actions, prescribed by the regulations, that are of national environmental significance.21 The Act also applies to:

actions on Commonwealth land22 that may have significant impact on the environment; actions taken outside Commonwealth land that may have significant impact on the environment on Commonwealth land; actions taken by the Commonwealth that may have a significant impact on the environment both within and without the Australian jurisdiction;23 international trade in wildlife;24 listed marine species;25 whales and cetaceans;26 declared commercial fishing activities;27 biosphere reserves;28 and overseas places of historic significance to Australia.29 [page 185] 6.6 The tenor of the Act indicates that outside Commonwealth land and marine areas,30 the Commonwealth will only be interested in actions that might affect matters of national environmental significance, as described above, or that are conducted by Commonwealth agencies.31 Apart from national heritage, and large coalmines and coal seam gas, these ‘matters of national environmental significance’ represent legal responsibilities that the Commonwealth already has under international law by reason of its ratification of international conventions.32 It is certainly arguable that the national government should have had a clearer and a broader vision of what are matters of national environmental significance.33 Land clearing, for example, is inescapably linked to loss of biodiversity, salinity and water quality — issues that are recognised by all Australian governments as of immediate and significant national concern. Climate change has also escaped specific recognition, although for a number of years there has been agitation to insert a ‘greenhouse trigger’ into the Act. In October 2008, the federal government announced a review of the EPBCA, which, among other things, would consider the appropriateness of current matters of national environmental significance. The Report emanating from this review, released late in 2009,34 made a number of recommendations about matters of national environmental significance, particularly in relation to ecosystems and vulnerable ecological communities, and also suggested an interim greenhouse trigger. While in-principle support

was been given to some of the recommendations affecting biodiversity, the greenhouse trigger has been rejected.35

Actions 6.7 The processes under the Act are triggered by certain types of action. An action is defined as including (s 523): a project; a development; an undertaking; an activity or series of activities; and an alteration of any of these. [page 186] In Mees v Roads Corporation [2003] FCA 306, a Victorian government referral of a proposed freeway project was found by the court to have been misleading, because it sought to effectively break the project into constituent parts (actions) that alone might not trigger the Act. The justification for this was that the only certain part of the project for which the government wished to seek approval at that stage was the part actually referred. Nevertheless, the court found that not to refer the totality of the envisaged project offended the purpose of the controlling provisions, which were to enable the minister to make a sound judgment on the potential significance of the environmental effects of the entire project. Subsequently, the Act has been amended to provide that if the minister receives a referral in relation to a proposal to take an action, and the minister is satisfied the action that is the subject of the referral is a component of a larger action that is proposed but not referred, the minister may decide to not accept the referral.36 Logging operations to be conducted over a period of time could, for example, fall within the contemplation of this provision.37 A decision by a government authority to authorise another person to take an action,38 or provision of government funding for an action,39 is not itself to be regarded as an action. Previously, under the legislation that preceded the EPBCA, the Environment Protection (Impact of Proposals) Act 1974 (Cth), Commonwealth involvement was often at the mercy of indirect triggers such as Commonwealth financial involvement in a project or the necessity to gain a Commonwealth approval, where environmental issues might have been of

merely local, rather than national, significance. The uncertainties of such an approach, and the unnecessary duplication of effort that often followed the separate EAs and approvals processes required by both Commonwealth and state agencies, should not occur under the EPBCA, because this qualification of the term ‘action’ effectively removes those triggers. 6.8 Actions that, if undertaken without approval under the Act, would be prohibited are known as ‘controlled actions’.40 A person must not take a controlled action unless approved under the Act.41 Prohibited actions are those that would or would be likely to have significant impacts on matters of national environmental significance,42 or which might significantly impact on the environment on Commonwealth land,43 or outside Commonwealth land (whether inside or outside Australia) if conducted by [page 187] a Commonwealth agency,44 unless otherwise approved by the minister or exempted from needing approval.45 Clearly, then, the test of ‘significant impact’ is the key to determining the question whether an action is a controlled action.46

The referrals process 6.9 A proponent of an action that is, or the person thinks may be, a controlled action must refer the proposal to the federal minister for a decision whether or not the action is a controlled action.47 Likewise, an action that a person thinks is not a controlled action may be referred to the minister.48 A state or territory, or Commonwealth, authority that has administrative responsibilities relating to an action being taken by another person may also refer it to the minister to determine whether or not it is a controlled action.49 The minister may also request a referral from a person or state or territory authority.50 A referral may be subsequently withdrawn before the minister makes a decision on the proposal referred and an alternative referral made.51 In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8, Heerey J said (at [21]–[22]): It is likely that the Act was drafted on the assumption that it would be preferable that proposed actions be referred at an early stage in their development in order that proposals could evolve in a direction that is positive for the environment. If a proposed action can be referred when its details are still being formulated, the Department (the Minister’s advisers) can play a role in the development of the proposal having regard to the principles and objectives of the Act. Referral at an early stage permits, amongst other things, early identification of possible impacts on relevant

environmental matters and allows the opportunity to address and possibly avoid those impacts as the proposal is developed. The function of the referral step is not to fix in stone all the details of a proposed ‘action’ for the subsequent approval process. Rather, this mechanism results in the proposal either being brought within the Environment Act assessment and approval regime, or being exempted from the requirements of assessment and approval under the Act.

[page 188] In Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 at [70], Stone J described the scheme of the Act as providing: … an initial clearing house so that actions that are likely to have a significant impact on the environment are properly assessed and those that do not fall into that category may be identified in a timely way and not impeded.

The referral mechanism operates as a kind of triage system. It is not the function of the triage nurse to make a detailed diagnosis, let alone prescribe treatment. 6.10 Referrals must include the information stipulated in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Sch 2.52 This may include, for example, a detailed description of the proposal, the nature and extent of likely impacts and a description of the important features of the project area and affected areas. As mentioned above, a referral may also be rejected by the minister if it is, in fact, a component of a larger action the person proposes to take.53 In Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670, a referral by the Victorian Department of Sustainability and Environment for construction of a proposed desalination plant that mentioned, but omitted details of, preliminary investigation works that were to be undertaken to obtain information for the purpose of project design, location and EA, was challenged by the plaintiffs. These ‘preliminary works’ had not been specified in the referral because they were adjudged by the Department as not likely to have any significant effects on matters of national environmental significance. The plaintiffs claimed, inter alia, that the ‘preliminary works’ were a component of the project and could not simply be omitted from the referral; and should have been formally included in the subsequent decision by the minister’s delegate that the action was a controlled action. Heerey J concluded that, not having been referred, these matters were not part of the action that had been referred and therefore no decision about them had in fact been made by the minister’s delegate that could be challenged.

6.11 An amendment to the Act now allows any person to request the minister to reconsider the decision whether an action is a controlled action and which provisions are the controlling provisions,54 although the minister has limited grounds on which to revoke the original decision.55 It will be an offence to undertake an action where a referral has not been effectively determined.56 A proponent may apply for a variation of a proposal after the initial referral,57 though the minister cannot accept such a variation unless satisfied that the character of the [page 189] varied proposal is substantially the same as the character of the original proposal.58 The function of the referral process is not to ‘fix in stone all the details of a proposed action for the subsequent approval process’.59 A referral of an action that is then withdrawn can be re-referred.60

Consultation 6.12 After receiving referral of a proposal, the environment minister must invite other appropriate Commonwealth ministers to provide information that may be relevant to determining whether the action is a controlled action.61 The appropriate state or territory minister must also be contacted if the environment minister thinks the proposed action may have an impact on matters that are protected as being of national environmental significance.62 Members of the public must also be invited, via the internet, to comment on whether the action is a controlled action.63

Significant impact 6.13 A referral will be made, or requested, of course, because of the likelihood that the proposal will have a significant impact on the environment. The term ‘significant’ properly operates as a limitation to exclude impacts that are minor or negligible.64 The task of determining whether an action might have a ‘significant impact’ is entrusted to the minister, taking into account matters prescribed by the Act.65 The question of significance, however, is not expressed as a matter of objective fact that must exist before the minister can decide whether an action is a controlled action (a ‘pre-condition’); this question is for subjective determination by the minister.66 In Anvil Hill Project Watch Association Inc v Minister for the

Environment and Water Resources [2008] FCAFC 3 the Court said (at [25– 26]): In the present case, the language of s 75(1) of the Act and the related provisions referred to by the appellant does not require any objective factual determination as a condition precedent to the exercise of the power of the Minister to make a decision under s 75(1). There are no references to expressions such as ‘Where there is a significant impact, the Minister may …’, or ‘If there is likely to be a significant impact, the Minister may …’ or even ‘Where there are grounds on which the Minister can consider whether there is likely to be a significant impact, the Minister may …’, each of which may suggest the existence of a condition precedent to the exercise of the power by the Minister.

[page 190] Section 75(1) of the Act imposes a duty on the Minister to decide whether a proposed action is a controlled action. In making this decision, the Minister must take into account the elements of a controlled action as defined by s 67, which in turn involves a determination whether the proposed action would be prohibited by a provision of Part 3 of the Act, including those provisions which give rise to what the appellant asserts is the condition precedent of s 75(1). The determination of this latter question involves a duty to determine whether there would be a prohibition under Part 3 of the Act which applies to the proposed action because the action has, will have or is likely to have a significant impact on a relevant aspect of the environment. The duty to make this determination is assigned to the Minister. It is not given to a court or tribunal, and is not expressed as an objective matter. As a result, the performance of this duty is not properly to be regarded as a condition precedent to the exercise of the power in s 75(1).

6.14 The Commonwealth has also published guidelines on how to determine ‘significant impacts’ both generally and in relation to specific elements of the environment, particularly species and ecosystems. These administrative guidelines for determining significant impacts cover both matters of national environmental significance and impacts on Commonwealth land and by Commonwealth agencies.67 Specialist guidelines relate to particular species, such as flying foxes and quolls; specific habitats, such as littoral rainforests and temperate grasslands; and specific activities, such as offshore seismic operations, offshore aquaculture, wind farms, and large coalmines and coal seam gas. The guidelines indicate the breadth of matters that must be considered; for example, the sensitivity of the receiving environment, direct and indirect and on-site and off-site impacts, and the degree of knowledge and understanding about the possible impacts. In reality, the guidelines merely state criteria to which the minister will have reference in determining whether an activity is a controlled activity. The guidelines have no impact on the legal interpretation of the minister’s responsibilities.68 The Regulations also declare that grazing of domestic stock within the Australian Alps National Parks and Reserves has a significant impact on the national heritage values of that place,69 thus triggering the offence and approvals provisions of ss 15B and 15C of the Act.

6.15 The test of significance, however, obviously gives a large measure of discretion to the minister in deciding whether or not to trigger the EA processes under the Act.70 [page 191] Not surprisingly, therefore, the Federal Court has been called on to interpret the scope of these responsibilities. ‘Likely’ has been interpreted as meaning a real or not remote chance or ‘possibility’; and ‘significant impact’ as an impact that is ‘important, notable or of consequence having regard to its context or intensity’. 71 In Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272 (the Nathan Dam case),72 the issue was whether the proposed construction and operation of a dam several hundred kilometres upstream from the Great Barrier Reef World Heritage Area, could be said to be likely to have a significant impact on the world heritage values of the reef. If it could, then action could not be taken without the approval of the federal Environment Minister.73 In determining whether this proposal was such an activity (a ‘controlled action’), the minister had to consider all adverse impacts.74 The minister determined that the dam itself did not pose any threat of significant impact on the reef; he ignored, however, the potential impacts by persons irrigating land using water from the dam because those were not impacts from the construction or operation of the dam. One of the purposes of dam construction, however, was to make water available to irrigators; and the adverse impacts that could flow from them could include threats from discharges of water contaminated by pesticides and other agricultural pollutants. The court held that the minister had misconstrued his statutory duty, by adopting a narrow interpretation of what were likely significant impacts. The term ‘impact’ meant the influence or effect of an action, and could readily include the indirect consequences of an action and impacts occasioned by persons other than the proponent, and that were not within the control of the proponent. So long as the minister properly understood and applied this concept, whether a particular impact was ‘adverse’ was a matter of fact for the minister to determine. In this case, however, the minister had clearly misunderstood the nature of his duty. The impacts that the minister should have considered included not just the immediate impacts stemming from construction of the dam, but all consequences that could be predicted to follow its construction and operation.75 In agreeing with the objectors that the minister had misconstrued his role, and should have considered indirect as

well as direct impacts of dam construction, the Federal Court made an important contribution to environmental decision-making: that the responsibility to consider adverse environmental impacts should not be narrowly construed, an interpretation that accords with reality if not political expediency. [page 192] 6.16 It seems, however, that such an interpretation was practically inconvenient; the EPBCA has more recently redefined ‘impact’ to limit indirect or ‘secondary’ consequences of actions to consequences that are more directly linked to the primary action.76 While not specifically limiting cumulative impacts, it must be established that the action is a substantial cause of an indirect consequence.77 Further, where an action is taken by another person as a consequence of the primary action, but not taken at the direction or request of the person undertaking the primary action, consequential events or circumstances are only impacts if the primary action facilitates to a major extent the secondary action; and both the secondary action and the consequential events or circumstances are within the contemplation of the primary person or a reasonably foreseeable consequence of the secondary action.78 6.17 The Nathan Dam case was subsequently followed in Brown v Forestry Tasmania (No 4) [2006] FCA 1729, where Marshall J concluded that Forestry Tasmania’s forestry operations in the Wielangta forests were subject to the threatened species provisions of the EPBCA because of the existence of the rare wedge-tailed eagle, and not protected by the exemption for actions taken under a Regional Forest Agreement (RFA)79 because the agreement did not adequately protect the eagle. The potential for ‘significant impact’ was raised by evidence of poor management practices by Forestry Tasmania. An action, though potentially insignificant by itself, might, in the overall scheme for management, contribute to a significant cumulative impact. This decision was overruled on appeal to the Full Court, the court construing the legal obligations under the EPBCA to be satisfied by the declaration of a reserve to protect threatened species.80 6.18 The mining, transportation and burning of coal has also raised claims that such projects should be declared to be controlled actions. In Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736, however, Dowsett J agreed with the process of assessment adopted by the minister’s delegate that concluded there would be no significant impact on matters protected by Pt 3

from such activities. Similarly, in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; [2008] FCAFC 3, it was held that the construction and operation of an open cut coalmine was not a controlled action; potential impacts on matters protected by Pt 3 were uncertain and conjectural. And in Your Water Your Say Inc v Minister for Environment, Heritage and the Arts [2008] FCA 670, greenhouse gas issues consequent on a proposal for a desalination plant were held not to be impacts that by law were [page 193] required to be considered under s 75; though in any case these had been considered. Clearly, the problem these cases have is proving that the action in question can be shown to have any significant impact on a national environmental significance (MNES) through some speculative effect on global climate.81 Whether there has been a ‘significant impact’ does not depend on the environment in question being ‘natural’ or ‘pristine’ prior to the activities that are called into question.82

The minister’s decision 6.19 Once a referral has been received by the minister, then subject to any requests by the minister for further information,83 the minister must decide, after taking into account public submissions,84 whether the action that is the subject of a proposal referred to the minister is a controlled action; and if so which provisions of Pt 3 (if any) are ‘controlling provisions’85 for the action. In making this decision, all adverse impacts must be considered; beneficial impacts must not be considered.86 If, within 20 business days after the minister receives the referral, the minister considers, on the basis of the information in the referral, that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Pt 3, the minister may inform the person proposing to take the action that the action is clearly unacceptable.87 If the proponent requests the minister to reconsider this decision, then public notice inviting comments on the proposal must be given.88 If the minister determines that an action is not a controlled action, it will not trigger the assessment and approvals processes under the EPBCA. Normally, a controlled action would proceed to assessment; though the

minister can find that a proposed action is not a controlled action on the basis that it will proceed in a particular manner and therefore not trigger the controlling provisions that might otherwise apply.89 So long as the action proceeds on the basis set out in the notice of the minister’s decision it will not be deemed a controlled action. [page 194] 6.20 The minister has a limited power to vary or substitute a decision based on the availability of substantial new information or change in circumstances.90 Ministerial power is equally limited where there is a request by a state or territory minister to reconsider a proposal to be undertaken in the state or territory, where the person proposing to take the action did not refer it with a statement that the person thought the action was a controlled action.91 6.21 If the action is determined to be a controlled action, ‘relevant impacts’, including past, future and probable impacts, must be assessed by one of the methods laid down in the Act.92 However, this provision does not require the minister, either expressly or by necessary implication, to have regard to the cumulative impacts of the proposal together with other existing and nominated projects. There is no express statutory requirement anywhere in the EPBCA that the minister should have regard to the cumulative impacts of each nominated project.93

Notice of and reasons for the decision 6.22 Notice of the decision must be given to the person proposing to take the action, the proponent (if different) and, if it is a matter of national environmental significance, the appropriate state or territory minister.94 If the decision is that the action is a controlled action, then the notice must specify the relevant controlling provisions;95 that is, the provisions that prohibit the controlling action from being undertaken without approval.96 A person given a notice may request reasons for the decision within 28 days.97 Notice of a decision must also be published in accordance with the regulations.98 However, as the requirement to provide reasons only seems to apply to a person who ‘has been given the notice’, arguably this may exclude members of the public who receive notice via publication. If the minister determines that the action is a controlled action, a person must be designated as proponent of the action.99

The assessment process 6.23 Assessment of controlled actions takes place under Chapter 4 of the EPBCA.

Federal–state cooperative arrangements 6.24 Any particular project that is a controlled action100 under the EPBCA will have the potential to attract both state and federal EA requirements, if approvals must [page 195] be obtained from both levels of government. While, in the event of conflict, federal controls will clearly prevail over any inconsistent state requirements with respect to the same aspects of the proposal, by virtue of the superior constitutional status of federal legislation,101 government policy is clearly to approach EA of such proposals in a cooperative and non-duplicatory manner.102 6.25 The Inter-Governmental Agreement on the Environment (IGAE),103 which came into effect in May 1992, stated the desirability of establishing ‘certainty about the application, procedures and function of the environmental impact assessment (EIA) process, to improve the consistency of the approach applied by all levels of government, to avoid duplication of process where more than one government or level of government is involved and interested in the subject matter of an assessment and to avoid delays in the process’.104 It was agreed that processes for EIA should be based on a number of key principles. These included the applicability of EIA to both private and public sector proposals, clear guidance on the types of proposals likely to attract EIA, levels of assessment to be appropriate to the environmental significance and potential public interest, adequate public participation and disclosure of information, and developing environmental monitoring and management programs.105 Even before the IGAE, however, it was increasingly common practice for the Commonwealth not to require an EIS if satisfied that the assessment process to be undertaken by a state or territory government would effectively address Commonwealth concerns.106 These informal bilateral arrangements between the Commonwealth and the states have now been formalised by the provisions of the EPBCA, which enable the Commonwealth to provide for

accreditation of state or territory processes for EA (assessment bilaterals).107 Standards for drawing up assessment bilaterals are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth). Assessment bilaterals have now been concluded with all states and territories.108 [page 196]

Bilateral agreements 6.26 A bilateral agreement109 is an agreement concluded between the Commonwealth and a state or territory that provides for accreditation of state or territory processes for EA or approval of actions, or in some other way protects the environment or promotes conservation and the ecologically sustainable use of natural resources (such as through a management plan).110 An agreement will not have effect in Commonwealth areas,111 or in relation to actions by the Commonwealth or Commonwealth agencies, unless expressly provided for in the agreement;112 and in any case, an agreement will not have any effect in relation to certain national parks.113 Essentially, then, a bilateral agreement enables the Commonwealth to accredit state processes for assessing and approving actions that may significantly impact on matters of national environmental significance. Bilateral agreements can either relate to the EIA assessment process alone (‘assessment bilaterals’) or can go further and actually endorse the state approvals processes following assessment (‘approval bilaterals’). Commonwealth processes may be similarly accredited by ministerial declarations.114 6.27 The purpose of an agreement is generally to minimise duplication of EA and approval processes that may be required under both state and federal law, while at the same time securing effective processes for the EA and approval of actions that might affect the environment.115 Through the conclusion of an agreement, the Commonwealth can withdraw from assessment processes it might otherwise have to undertake, satisfied that state processes for EA of actions in which the Commonwealth has an interest will meet appropriate standards. These standards or other criteria for concluding such an agreement may be prescribed by regulation.116 The intent is that the level of protection afforded by state processes must be at least equal to that provided by Commonwealth processes. A bilateral agreement may also declare that actions assessed in a specified manner by a state or territory will not need further assessment under the EPBCA so long as the assessment itself includes impacts on matters protected under the Act, and the specified manner of assessment meets the criteria set out in the Regulations.117 All

states and territories have finalised such agreements.118 Where a proposal referred under the EPBCA is assessed by a state or territory agency, the agency must provide an assessment report for the benefit of the Commonwealth minister that contains enough information about the [page 197] relevant impacts of the proposed action to enable the Commonwealth minister to make an informed decision whether or not to approve the taking of the action under the EPBCA.119 6.28 An approval bilateral may declare that actions approved by a state or territory will not need approval under the EPBCA Pt 9, but only if such approval has been given in accordance with a management plan in force under state or territory law and accredited by the Commonwealth minister for the purposes of the agreement.120 Before accrediting a management plan,121 the minister must be satisfied that both the plan and the law under which it is in force meet the criteria prescribed in the Regulations;122 that there will be adequate assessment of impacts of actions approved under the plan on matters protected by the EPBCA Pt 3; and that no unacceptable or unsustainable impacts on such matters will occur. An agreement must require a state to act in accordance with the accredited management plan, and not to approve actions inconsistent with it. All agreements that exempt actions undertaken under accredited management plans must include an undertaking by the states that environmental impacts on matters not covered by Pt 3 (that is, not of national environmental significance) will be assessed to the greatest extent practicable if taken by a corporation, taken for purposes of trade and commerce, taken to give effect to the international obligations of Australia, or taken in the territory.123 A similar undertaking is required for impacts, except ‘relevant impacts’,124 that such actions undertaken under accredited EA processes will have on the environment.125 Without such undertakings, the agreement will not have effect.126 6.29 Accreditation of a management plan is subject to disallowance in the federal parliament. The New South Wales management plan for the Sydney Opera House is the only plan to date that has been accredited under this provision.127 6.30 Draft agreements must be published for public consultation, and the minister must have considered the role and interests of Indigenous Australians in promoting conservation and the ecologically sustainable use of natural resources, taking into

[page 198] account Australia’s obligations under the Convention on Biological Diversity 1992.128 Agreements must also not be inconsistent with international obligations in relation to world heritage, Ramsar wetlands, and threatened and migratory species, and must promote management of national heritage places in accordance with national heritage management principles.129 Agreements relating to nuclear action, or action prescribed under s 25(1),130 that involve trade and commerce, either internationally or domestically between the states, must not give preference to any state over another.131 6.31 The Act also makes provision for the suspension and cancellation of agreements as a result of contraventions or non-compliance.132 An agreement will cease to have effect after five years, or earlier if provided for in the agreement.133 The parties may also agree to revoke it. 6.32 An action to be taken in a state or territory that is of a class declared by a bilateral agreement134 not to need assessment under these provisions, will be exempt if the action has been assessed in a manner specified in the agreement.135 Where, because of the existence of a bilateral agreement, assessment of an action will not be conducted under the EPBCA, but will still need the Commonwealth minister’s approval, the agreement must provide for the minister to receive a report including, or accompanied by, enough information about the relevant impacts of the action to let the minister make an informed decision whether or not to approve the action.136

Streamlined environmental assessments and approvals 6.33 Recently, proposals to further delegate decision-making powers to the states and territories have been proposed by the Commonwealth.137 To reduce time and costs for businesses, and duplication of conditions under dual sets of approvals, the Commonwealth intends to make more use of accreditation of state policies. The intention seems to be to use the revised NSW bilateral agreement on EA138 as the benchmark for further development. Under the revised bilateral, three New South Wales offsets policies have been accredited.139 This means that proponents who meet the criteria for proceeding under these offsets policies, or the revised bilateral [page 199] agreement more generally, will no longer need to engage with the EPBCA process. Where proponents still need to refer a proposal to the

Commonwealth, then a draft conditions policy140 is intended to streamline the process and reduce duplication of conditions between state and Commonwealth approvals. 6.34 The Commonwealth has also declared its intention to conclude agreements with the states on ‘approval bilaterals’; a ‘one-stop shop’ for environmental approvals that will accredit each state planning system to create a single EA and approval process for matters of MNES. The move towards a ‘one project, one assessment, one decision’ framework for environmental decision-making was one of the chief recommendations of the Productivity Commission in its Research Report ‘Major Project Development Assessment Processes’ (2013).141 Not surprisingly, this policy has attracted widespread criticism because the Commonwealth is effectively giving up its final veto over projects that will significantly impact on MNES. Nevertheless, the policy is proceeding. In October 2015 the Commonwealth announced it had delegated federal EA and approval powers to NSW Roads and Maritime Services (RMS) for certain projects under the EPBCA. This means that RMS will now self-assess and self-approve its own impacts on nationally threatened and migratory species for ‘small-scale’ activities under Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), without needing to refer such activities to the federal environment minister.

Ministerial declarations 6.35 The minister may declare that actions of specified classes that have been approved by the Commonwealth or a Commonwealth agency, in accordance with accredited management arrangements or accredited authorisation processes, do not require approval under Pt 9.142 The minister may only accredit management arrangements and authorisation processes if satisfied that they meet criteria prescribed by regulations,143 and that adequate assessment of actions that might impact on matters protected under Pt 3144 and approved in accordance with the plan have been, or will be, undertaken; and that those actions will not have unacceptable or unsustainable impacts on those matters.145 A proposed accreditation may be disallowed by either house of the federal parliament.146 A declaration may also be revoked by the minister.147 [page 200] 6.36 A declaration may only be made if it accords with the objects of the Act and meets the requirements prescribed by regulations.148 Declarations

and accreditations may only be made in respect of a world heritage property, national and Commonwealth heritage places, a Ramsar wetland, threatened species or ecological communities, or migratory species protected under the Act, if it is not inconsistent with Australia’s obligations under the relevant conventions; and will promote management of the properties, or promote the survival or enhance the conservation status of the species or communities, in accordance with the appropriate Australian management principles, recovery plan or threat abatement plan.149 These provisions are equivalent to the prerequisites for entering into a bilateral agreement in respect of these matters. Similar provisions are made for declarations in respect of actions to be taken under a specified bioregional plan.150 There are no current declarations in force. 6.37 An action of a class declared by the minister not to require assessment will also be exempt if the Commonwealth or Commonwealth agency assesses the action in a manner specified in a declaration.151 The minister may only make such a declaration if satisfied that assessment in the specified manner will include assessment of impacts the action may have on each matter protected by the controlling provisions, the specified manner of assessment meets any standards prescribed by regulations and, if the action requires approval, that the minister will receive enough information about the relevant impacts to enable an informed decision on whether to approve the taking of the action.152 There are currently no ministerial declarations for Australian government processes. Actions included in a class of actions declared in a conservation agreement ‘not to need approval under Pt 9’ are exempt from this process.153

Regional Forest Agreements 6.38 Operations undertaken in accordance with a Regional Forest Agreement (RFA)154 that are not in a world heritage area or Ramsar wetland are excluded from the assessment and approvals processes under the EPBCA.155 In Brown v Forestry Tasmania (No 4) (2006) 152 LGERA 146, the Federal Court interpreted the obligation to ‘protect’ priority species (rare and threatened species) contained in the Tasmanian RFA s 68 as remaining unfulfilled and that forestry operations in the area had not been, and may not be, carried out therefore in accordance with the RFA. Accordingly, logging operations, as actions within the meaning of the EPBCA, were not exempted by the provisions of s 38 of the Act. Subsequent to this decision the RFA s 68 was

[page 201] amended to state that the parties agreed that relevant management strategies in place protected rare and threatened species and communities. On appeal, the Full Court reversed the original decision (Forestry Tasmania v Brown (2007) 158 LGERA 191), the court holding that the amended version of the RFA s 68 was admissible on appeal and that in any case the new s 68 was merely clarification of the true meaning of the original clause; that the Agreement in effect afforded protection to priority species; and that the new s 68 did not deprive the Agreement of its character as a RFA, even if the original s 68 agreed to protect, whereas the new version agreed that protection was being effected through the management prescriptions already in place. Since the Tasmanian RFA was a RFA as defined by s 38 of the Act, it was therefore exempted from the EPBCA process and the court did not deem it necessary therefore to deal with the dispute raised in the lower court about the actual degree of protection afforded by the management prescriptions in the RFA to the species that were the subject of the original proceedings.156

Strategic assessments 6.39 It is commented in Chapter 9 that, theoretically, if the impact of government plans and policies is assessed at the outset, then the cumulative impacts of actions carried out under such plans can also be identified and assessed. Assessment of particular activities conducted under such plans need not then be as rigorous as might otherwise be the case, or need not be undertaken at all. Strategic assessment may, therefore, be viewed as potentially more efficient in assessing the generic characteristics of many different activities conducted under plans. Strategic assessments have the potential to improve certainty, reduce ‘green tape’ and costs and achieve better biodiversity outcomes through earlier and more strategic retention and enhancement of conservation areas.157 On the other hand, particular activities, which would otherwise need to be assessed on a project specific basis, should only be exempted from assessment if a strategic assessment has clearly already factored in such proposals in carrying out the strategic assessment. 6.40 The EPBCA allows the minister to agree with persons responsible for the adoption or implementation of plans, policies and programs, that strategic assessment should be made of the relevant impacts of actions that are controlled actions158 or would be if not otherwise exempted. Agreements may

also cover, at the request of a state or territory, other impacts (that is, not relevant impacts) in a state or territory. [page 202] 6.41 An agreement has to make provision for a number of factors:159 preparation of draft terms of reference for a report on likely impacts; opportunity for public comment on the draft terms of reference for a period of at least 28 days; finalisation of the terms of reference by the minister; preparation of a draft report on likely impacts; opportunity for public comment on the draft report for a period of at least 28 days; finalisation of the report and submission to the minister; making of recommendations by the minister to the person responsible for the policy, plan or program; and endorsement of the policy, plan or program by the minister, if satisfied that the report adequately addresses the impacts to which the agreement relates. 6.42 The outcomes of a strategic assessment will be used by the minister to determine the appropriate assessment approach for each individual action under a plan, policy or program.160 Endorsement of a strategic assessment process will give the minister the option of demanding a less onerous form of EA for an action carried out under such instruments.161 Endorsement of a policy, plan or program embodied in a management plan also allows the minister to declare, or make a bilateral agreement declaring, that actions approved in accordance with the management plan will not need approval under Pt 3 of the Act, although a range of criteria must be applied before making such a decision.162 6.43 The EPBCA now makes specific provision for the minister to approve the taking of an action or class of actions in accordance with an endorsed policy, plan or program without the need for further EA and approval;163 although conditions may still be applied, and the minister is still subject to the criteria stipulated for approving an action set out in the Act.164 The Act also makes provision for bioregional plans for Commonwealth areas and, with the cooperation of states and territories, for bioregions not

wholly within Commonwealth areas.165 Actions taken in accordance with a bioregional plan may not need approval under Pt 9 of the Act.166 On private land, the making of a conservation agreement with the Commonwealth may have a similar effect.167 [page 203] 6.44 Specific provision is made by the Act for the strategic assessment of Commonwealth fisheries.168 Actions that are subsequently taken under an accredited management plan for a fishery will not need further approval and will not therefore require EA.169

Controlled actions 6.45 Commonwealth EA applies to controlled actions;170 that is, those actions for which approval is required under Pt 3 of the Act.171

Controlled actions that are exempt from these provisions 6.46 Actions that would otherwise trigger the requirements for assessment and approval under the EPBCA (controlled actions) do not need assessment and approval if: conducted in accordance with a bilateral agreement that accredits a state management arrangement or authorisation process (first foreshadowed in the IGAE);172 undertaken in accordance with a ministerial declaration that accredits a Commonwealth management arrangement or authorisation process;173 undertaken in accordance with the zoning provisions of the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMPA);174 they are forestry operations undertaken in accordance with the RFAs process that are not part of a world heritage property or Ramsar wetland;175 the action is authorised by a facility installation permit issued under the Telecommunications Act 1997 (Cth);176 they are a lawful continuation of a use occurring immediately before commencement of the Act;177 or an action specifically authorised by Commonwealth, state or territory law before commencement of the Act that needed no further environmental authorisation to enable that action to be lawfully undertaken.178

[page 204] In Minister for Environment and Heritage v Greentree (No 2) [2004] FCA 741, in which a wheat farmer was sued under the Act for clearing part of a Ramsar wetland without authorisation, various agricultural pursuits, including clearing, were held to have satisfied the test of being uses that could be lawfully carried out under state planning laws. However, since the clearing itself had not obtained all relevant state authorisations, specifically under the Native Vegetation Conservation Act 1997 (NSW) (NVCA), the defence fell apart on this aspect of the test; the clearing was not therefore exempt from control under the EPBCA:179 they are exempted by the minister on the basis of national interest, defence or security or a national emergency;180 they are actions of a Commonwealth agency or employee that have been authorised by a government decision on which the minister’s advice has been sought;181 they are actions or a class of actions to be undertaken by a Commonwealth agency that have been declared by the minister not to need approval, where the minister is satisfied that the Commonwealth agency will comply with state or territory environment protection laws when undertaking the action or class of actions to which the declaration applies;182 they are actions that, if taken in a particular manner specified by the minister, would not have a significant impact and therefore would not fall within a controlling provision of the Act;183 they are actions declared by the minister not to need approval because the taking of the action is in accordance with a bioregional plan;184 and the action is included in a class of actions declared in a conservation agreement not to require approval.185 The reason for many of these exemptions is that some form of strategic assessment will usually be required before such an arrangement can be made. Therefore, such assessment will, theoretically, have adequately addressed the likely environmental impacts of such actions. [page 205] The minister may also apply an exemption to impacts on threatened species and communities and migratory species if satisfied the species has been introduced into the area covered by the exemption for the purpose of

contributing to its conservation; and that the impacts are incidental to, and not the purpose of, carrying out the activities.186

Environmental assessment of actions 6.47 If an action has been determined to be a controlled action, and it is not otherwise exempted from the EA processes, then the minister must choose one of the following methods of assessing the relevant impacts:187 an accredited assessment process; an assessment on referral information; an assessment on preliminary documentation; a public environment report (PER); an EIS; or a public inquiry. The relevant impacts are the impacts that the action may have on the matters protected by each provision of Pt 3 designated as a controlling provision for the action;188 in other words, those matters that the minister has determined warrant protection. The purpose of this is to focus Commonwealth attention on impacts on matters of national environmental significance. The Commonwealth will not assess all the impacts of an action unless so requested by a state.189

Controlled actions that are exempt from environmental assessment 6.48 Bilateral agreements for environmental assessment Proposed activities may fall within the jurisdiction of both Commonwealth and EIA requirements. In this event, cooperative arrangements entered into between the respective governments190 may recognise the legitimacy of each other’s assessment processes and thus the Commonwealth may be prepared to exempt a proposal from EA under the EPBCA to the extent that the activity will be satisfactorily assessed under state procedures. The Commonwealth minister will, however, still retain the [page 206] right to approve the activity for Commonwealth purposes. Bilateral agreements are discussed at 6.26.

6.49 Ministerial declarations The minister may declare that actions of specified classes that have been approved by the Commonwealth or specified Commonwealth agency, in accordance with an accredited management arrangement or an accredited authorisation process, do not require approval under Pt 9.191 Ministerial declarations are discussed further at 6.35.

Deciding on the appropriate method of assessment 6.50 The minister cannot decide on an appropriate approach until prescribed information has been received in the prescribed way from the proponent or person proposing to take the action.192 The information that must be provided, and how it must be provided, is set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).193 Information is required, for example, about alternatives to the proposed action, techniques that will be used to mitigate adverse impacts and the environmental record of the proponent.194 If the action is to be taken in a state or territory and the controlling provision for the action is of national environmental significance, then the minister must consult with the appropriate state or territory minister before making a decision.195 Before making a decision the minister must consider:196 information given in referral of the proposal; other relevant information about the impacts; for example, information contained in strategic assessments; information provided by state and territory ministers; matters prescribed by the regulations; and guidelines setting out criteria for deciding what approach should be used. 6.51 The minister may also request more information before making a decision.197 A decision on which assessment approach to use must be made within 20 business days198 of deciding the action is a controlled action, or of receiving further information199 [page 207] about a referred proposal,200 unless the minister selects a different approach to that suggested by a state or territory minister. The minister and the proponent may also agree on an extended period201 and the period may be extended if the minister requests further information from the proponent.202

Once the decision is made, notice must be given to the proponent and appropriate state or territory minister if applicable and published in accordance with the Regulations.203 If the minister has determined that an accredited assessment process is to be used, the notices must specify the process.204 6.52 Assessment by accredited assessment process This option enables the minister to accredit, on a case-by-case basis, state or Commonwealth assessment processes for actions not covered by bilateral agreements or ministerial declarations. Such a process can only be accredited if it is to be carried out under a law of the Commonwealth, a state or territory, the process and the law meet any standards prescribed by the Regulations, relevant impacts will be adequately assessed and a report will be prepared that enables the minister to make an informed decision about whether to approve the action.205 6.53 Assessment on referral information The minister may choose this method of assessment only if the action meets the criteria prescribed in the Regulations.206 The secretary must then prepare a draft recommendation report advising whether the activity should be approved and, if so, any conditions that should be attached.207 The draft report will be published on the internet and the public invited to make comments within 10 business days.208 The report will then be finalised,209 and given to the minister together with copies of comments received.210 6.54 Assessment on preliminary documentation This approach may be chosen only if the minister is satisfied that this approach will enable him or her to make an informed decision whether or not to approve the taking of the action.211 If the minister has determined that this is the appropriate approach, then the designated proponent must be directed to publish, in accordance with the regulations specified, information given to the minister, and invite comments on that information or the action.212 The minister must be given a copy and summary of any comments [page 208] received,213 plus a document setting out information previously given to the minister, with any changes or additions needed to take account of the public comment.214 The secretary will then give to the minister a report relating to the action within 20 business days after receiving the relevant documentation.215

6.55 Public environment reports (PER) Where the minister decides that this should be the appropriate form of assessment to address the relevant impacts of the action, then written guidelines for the content of the draft report must be prepared within 20 days.216 The guidelines may comprise standard or tailored guidelines.217 The minister may invite anyone to comment on a draft of tailored guidelines.218 These guidelines should ensure that the report will enable the minister to make an informed decision whether or not to approve the proposal.219 They may also require information to be included about other impacts (for example, not relevant impacts) that have been requested by a state or territory minister to assist decision-making in relation to actions to be taken for purposes of trade or commerce, or to give effect to Australia’s international obligations.220 The purpose of this is to ensure that if a state or territory wishes to accredit the Commonwealth PER process, all environmental impacts that are relevant to state responsibilities can also be addressed.221 The designated proponent must then prepare a draft report about relevant and other impacts, obtain the minister’s approval (based on compliance with the guidelines) to advertise for public comment, and give the minister a copy of the comments received.222 The minister must specify not less than 20 business days for public comment.223 The designated proponent will then finalise the draft report, taking account of comments, and furnish the minister with the final report.224 Once accepted, the report must be published. Within 20 business days of the minister accepting the finalised report, the secretary will then furnish the minister with a report relating to the action.225 This too will be publicly available except for parts that relate to commercial confidentiality, Commonwealth security or advice to the minister. The matters to be addressed by a PER are prescribed by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).226 These include a detailed description of the proposed action, likely relevant impacts (including those that are likely to be unknown, unpredictable or irreversible), the likely effectiveness of [page 209] proposed safeguards and mitigation measures, and the environmental record of the proponent. This suggests a precautionary approach to decisionmaking;227 indeed, an approach that is required under s 391 of the Act. 6.56 Environmental impact statements (EIS) Where the minister determines that the submission of an EIS should be the preferred approach for assessing the environmental impacts of the proposal, then the minister and

the proponent will be required to adopt the same procedures as those required for preparation of a PER,228 and include the same information.229 6.57 Public inquiries Where the minister decides that the relevant impacts of a proposal should be addressed by an inquiry, then commissioners will be appointed to conduct the inquiry and report to the minister.230 The minister must specify the terms of reference for the inquiry, including relevant and other impacts.231 The terms of reference will be published, along with information given to the minister before the decision to appoint an inquiry is made (or alternatively notice that a draft PER or EIS has already been published).232 The commission may determine its own procedures,233 but unless in the public interest not to do so, hearings, submissions and evidence would normally be conducted in public or made publicly available.234 The report will be published.235

Assessment of Commonwealth actions that are not controlled actions 6.58 Where a Commonwealth agency or employee is considering authorising certain types of actions that may have a significant impact on the environment, but that are not controlled actions, the minister must be informed of the proposal.236 The minister may also request a referral. The types of actions specified are provision of foreign aid (the impact may be anywhere in the world), managing aircraft operations in airspace, adopting or implementing a major development plan for an airport and any other action prescribed by regulation. The EA provisions described in this chapter will then apply to consideration of the authorisation as if it were a controlled action, except that the minister will not be approving the authorisation, merely giving advice to the agency or employee. After considering the minister’s [page 210] advice, a report must be given to the minister indicating what action has been taken in relation to the minister’s advice, and, if effect was not given to some parts of that advice, why not.

Assessment by agreement with a state or territory of actions that are not controlled actions

6.59 The Commonwealth and state and territory ministers may make agreements for either strategic or action-based assessments (that do not relate to controlled actions)237 that relate to the activities of corporations, activities of trade or commerce, or implementation of external affairs obligations, in a state or territory.238 The agreement may specify either that assessment on preliminary documentation, by a PER, EIS or inquiry, is to apply to an action,239 or that strategic assessment is to be undertaken. The Commonwealth minister will then give a copy of the assessment or inquiry report240 to the state or territory minister and make recommendations relating to the action.241

The approvals process 6.60 Within 30 business days242 of receiving an assessment report or 20 days for an assessment on referral information or 40 business days following an inquiry report (or longer if the minister determines that more time is required to consider the comments of another minister,243 or has requested further information),244 the minister must decide whether to approve the taking of the controlled action.245 For approval purposes, an assessment report246 will include not only reports following the procedures for EAs described above,247 but also assessments conducted under bilateral agreements248 or specified in a declaration by the minister.249 [page 211] Before making a decision whether or not to approve the action, and on what conditions,250 the minister must invite any other minister who the minister believes has administrative responsibilities relating to the proposed action to comment on economic and social matters relating to the action.251 The minister must also invite comments from the person proposing to take action and the designated proponent;252 and may invite comments from the general public253 and seek advice from state ministers about methods that have been used to assess impacts on other matters.254

Criteria for decision-making under the Act 6.61 The minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.255 In Phosphate Resources Ltd v Minister for Environment, Heritage and Arts (No 2) (2008) 162 LGERA 154, it was held that the minister’s

obligation under s 130 was to decide whether or not to refuse approval for each of the controlling provisions, not just some of them; and that this error was not severable from the remainder of the decision because it was the scheme of the Act that the matter of approval or disapproval had to be resolved explicitly for each of the controlling provisions. 6.62 The minister must also consider256 matters relevant257 to any environmental values the minister determined needed to be protected under Pt 3 when deciding the action was a controlled action, and economic and social matters.258 This includes the consequences of the proposed action; though there is no obligation to take account of the consequences of any other action, present or anticipated. There is [page 212] no obligation to consider the cumulative impacts of the proposal.259 In considering these particular matters, the minister must take into account a wide range of other matters, including assessment reports, other relevant advice and comments and the principles of ESD.260 In Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 162 LGERA 154, the minister’s decision refusing approval for an action was set aside for failure to take into account the EIS produced by the proponent. 6.63 For a wide range of decisions, the minister is also instructed to take account of261 the precautionary principle ‘to the extent that he or she can do so consistently with the other provisions of this Act’. These decisions include:262 whether an action is a controlled action; whether to approve the taking of an action; whether or not to grant permits of various kinds; and whether to make, adopt or vary various management and conservation plans, and recovery and threat abatement plans.263 6.64 For decisions involving protected areas, species and ecosystems, the Act specifies additional matters that must be taken into account, including matters relevant to international treaties and management.264 For example, in making a decision to approve an action that is likely to have a significant impact on a listed threatened species, the minister must have regard to any approved conservation advice for the species.265 In Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694, this requirement was held to be such an

important feature of the scheme of the Act that it had to be directly considered and oblique references to the content of such advice would not suffice. It was irrelevant that most of the material in the advice was before the minister in other documents.266 [page 213] 6.65 The minister is also empowered to vary, suspend and revoke approvals, generally because of contravention of approvals, or the occurrence or likelihood of significant impacts that were not previously identified in the assessment process.267 6.66 These decision-making functions are amenable to scrutiny under principles of judicial review, which are described in Chapter 22.

Conditions of approval 6.67 In considering whether to grant approval for a proposed action, the minister may attach conditions to the approval.268 In deciding whether to attach a condition, the minister ‘must consider … any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State …’.269 A failure by the minister to comply with this stipulation may render any resulting decision invalid.270 In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403 at [132] the court accepted that the ‘law’ referred to was a law of a state that was in force at the time at which the minister made the decision. 6.68 In Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468 the question arose whether the minister was bound to have regard to conditions imposed following a state tribunal hearing, but after the Commonwealth minister had made his decision. The court held the Minister was not required to take into account conditions that had neither been imposed nor framed at the date of his decision. The court said (at [53]): In my view s 134(4)(a) requires the Minister to have regard to conditions which have been imposed under State law and to conditions which have been framed but have yet to be imposed. In the case of conditions falling within the latter category the obligation will only arise if the Minister considers, on the material available to him or her, that it is likely that the process for imposition will be perfected under State law.

The court noted that the minister had rejected advice to await the tribunal’s decision prior to making his own decision. It seems therefore that the relevant provisions of the Act allow the minister to avoid any legal obligation to take

into account conditions that might be drafted by a state appeal body by the simple expedient of making his own decision before the appeal body makes its decision. 6.69 If the minister decides to issue a conditional approval, conditions must be necessary or convenient for protecting a matter, or protecting from the action any matter, protected by a provision of Pt 3 for which the approval has effect, or repairing or mitigating damage to such matters.271 The minister must also not act inconsistently with Australia’s international obligations for world heritage, Ramsar wetlands [page 214] and threatened and migratory species, or approve actions with respect to certain nuclear installations.272 6.70 Conditions may also specifically include requirements for deposits of security such as bonds; guarantees or cash deposits; insurance; periodic environmental auditing, monitoring, compliance with other Commonwealth, state or territory authorisations or other instruments; or specified industry standards or codes of practice; and implementation of management plans.273 In deciding whether to attach conditions to an approval, the minister must consider any relevant conditions already imposed under other laws,274 information provided by the proponent or person proposing to take the action275 and the desirability of ensuring that the condition represents a costeffective means of achieving the object of the condition.276 6.71 In essence the Act gives to the decision-maker broad powers ‘to deal with a residual risk from unexpected trends or events … imposed in accordance with the precautionary principle for the purpose of guarding against them by resort to monitoring and management’.277

Environmental audits 6.72 Conditions attached to approvals may require an environmental audit of the action to be carried out periodically by a person who can be regarded as being independent from any person whose taking of the action is approved; require the preparation, submission for approval by the minister, and implementation of a plan for managing the impacts of the approved action; and require specified environmental monitoring or testing to be carried out.278 Suspected contravention, or likely contravention, of an approval, or any indication that impacts are likely to be significantly greater than indicated in

the information available to the minister when the approval was granted, may be met by a demand that the holder of the licence conduct an environmental audit. The purpose of such an audit would be, generally, to evaluate the risks to the environment resulting from the [page 215] activities and an assessment of the holder’s capacity to comply with the approval.279 An independent environmental auditor must carry out the audit.280

Contravention of approvals 6.73 Contravention of conditions of an approval will attract civil penalties.281 To recover an amount, the minister may make application to the Federal Court within six years of the contravention for an order requiring the wrongdoer to pay the penalty.282 The court may determine the appropriate penalty, up to the relevant amount specified for the provision, after having had regard to all relevant matters. These include the nature and extent of the contravention and the loss or damage suffered, the circumstances of the contravention, and whether the person has previously engaged in similar conduct.283 Failure to obtain an approval, where one might be required, may also result in civil penalties being imposed. In Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89, penalties of $150,000 and $300,000 were imposed on two persons who contravened the Act by clearing part of a listed Ramsar wetland without permission. Sackville J indicated that in determining penalties under these provisions, reference to the similar concept in use under the Trade Practices Act 1974 (Cth) was appropriate; as well as the principles enunciated in relation to sentencing in criminal proceedings in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21.284 A contravention of a civil penalty provision is not an offence.285 However, it will be an offence to recklessly contravene the conditions of an approval, and that contravention results or will result in a significant impact on the matter protected under Pt 3.286 No particular mental intent is required in relation to the impact; that is, the offence is one of strict liability.287 However, recklessness as to that fact is also a separate offence.288 Although a person may be subject to both civil and criminal proceedings for substantially the same conduct, the person cannot be made liable for a civil

penalty if criminal proceedings have commenced or if that person has already been convicted.289 [page 216] However, a person may subsequently be convicted after being made subject to a pecuniary penalty.290 Contraventions may also be publicised.291

Decision-making in practice 6.74 The latest report292 on the operation of the EPBCA for the period July 2011–June 2012 indicates that 412 new referrals were made under the Act. Of these, 132 were eventually determined to be controlled actions requiring assessment and approval under the Act, while a further 94 could proceed without approval if taken in a particular manner. One hundred and fifty-one referrals were determined not to be for controlled actions; and 75 actions were approved with conditions attached. Thirty-five per cent of referrals were determined to need EA.

Monitoring and Enforcement 6.75 Enforcement of conditional approvals issued under the EPBCA by the federal Environment Department has been criticised by the Commonwealth Auditor-General:293 … nearly 14 years after the enactment of the EPBC Act, Environment is yet to establish mature administrative arrangements to effectively discharge its regulatory responsibilities in relation to approved controlled actions. As a consequence, the assurance that the department has regarding proponents’ compliance with action approval conditions, which are designed to address the risks posed to MNES, is limited. In particular, Environment is not well placed to demonstrate that it is effectively targeting its compliance monitoring activities to the areas of greatest risk. The department is yet to: establish an effective compliance intelligence capability to collect, store and analyse compliance intelligence; and identify an appropriate set of MNES risk factors (such as the compliance history of proponents) against which approved controlled actions can be assessed and ranked. The absence of a sound risk-based approach has meant that compliance monitoring undertaken by the department has, generally, been insufficient to provide an appropriate level of assurance of proponents’ ongoing compliance with their conditions of approval. In terms of proponents’ obligations to submit material to the department, there were numerous plans and compliance returns found to be overdue for submission, with generally poor evidence retained demonstrating the department’s appropriate assessment of submitted plans and returns, particularly for assessments completed prior to 2013. The increasing workload on compliance monitoring staff over time has resulted in Environment adopting a generally passive approach to monitoring proponents’ compliance with most approval conditions. As a consequence, the department has limited awareness of the progress of many approved controlled actions and the elevated risks to MNES that may result

during particular stages of an action (for example, during ground clearance and construction). Environment has recently established

[page 217] a compliance monitoring strategy that has been designed to coordinate its various compliance activities. Environment’s passive approach has also been evident in its approach to the management of non-compliance. In many cases, instances of proponent non-compliance (mostly of a technical nature—such as, a missed deadline to submit a management plan) were either not identified by staff, or were identified but not referred for assessment and possible enforcement action. The failure to appropriately respond to identified non-compliance can: impact on the effectiveness of environmental safeguards; risk environmental damage; jeopardise the department’s ability to take future enforcement action; and harm the public’s confidence in the regulator. Also, in the absence of appropriate procedures, the department’s investigations into reported noncompliance with approval conditions were conducted inconsistently. Although documentation retained by Environment evidenced the enforcement decisions taken, there is scope to improve the department’s documentation of the reasons for decisions, including the consideration of relevant factors and the consistency of enforcement responses over time. The extent of the shortcomings in, and challenges facing, Environment’s regulation of approved controlled actions — particularly in relation to compliance monitoring — does not instil confidence that the environmental protection measures considered necessary as part of the approval of controlled actions have received sufficient oversight over an extended period of time. In this regard, Environment is working to improve its internal performance reporting arrangements to provide greater visibility of the compliance monitoring function to senior departmental managers. While Environment dedicated additional resources in 2007 to monitor and enforce EPBC Act compliance, effective arrangements to administer its regulatory responsibilities are yet to be established.294

The Department has since committed to improving its compliance and enforcement activities.295

1.

See generally McGrath, ‘Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2005) 22 EPLJ 20. See also Campbell, ‘Governance, Responsibility and the Market: Neo-liberalism and Aspects of the EPBCA’ (1999) 16 EPLJ 290; Ogle, ‘The EPBCA: How Workable Is It?’ (2000) 17 EPLJ 468; Scanlon and Dyson, ‘Will Practice Hinder Principle? Implementing the EPBC Act’ (2001) 18 EPLJ 14; Chapple, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth); One Year Later’ (2001) 18 EPLJ 523; McGrath, ‘Applying the EPBCA: A Case Study of the Naturelink Cableway’ (2001/2) 7 (33) QEPR 123; McIntosh, ‘Why the EPBCA’s Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives’ (2004) 21 EPLJ 288.

2.

The provisions of the Environment (Impact of Proposals) Act 1974 (Cth) (EPIP Act) were discussed in the 4th ed of this work, p 146 and following.

3.

See generally Fowler, ‘Environmental Impact Assessment: What Role for the Commonwealth? An Overview’ (1996) 13 EPLJ 246; Mould, ‘The Proposed Environment Protection and Biodiversity Conservation Act: The Role of the Commonwealth in Environmental Impact Assessment’ (1998) 15 EPLJ 275.

4.

Such a definition included the Reserve Bank (Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 521 per Gibbs J), but not the Loan Council (Tasmanian

Wilderness Society v Fraser (1981) 153 CLR 270). 5.

Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86. This additional requirement was derived from the prefatory words of the Environment Protection (Impact of Proposals) Act 1974 (Cth) s 5, which provide that: ‘The object of this Act is to ensure, to the greatest extent practicable, that matters affecting the environment to a significant extent are fully examined and taken into account’.

6.

Administrative Procedures, at 1.2.

7.

See Tasmanian Conservation Trust Inc v Minister for Resources (1995) 85 LGERA 296; Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 90 LGERA 106. See also McDonald and Munchenberg, ‘Public Interest Environmental Litigation: Chipping Away at Procedural Obstacles’ (1995) 12 EPLJ 140; Munchenberg, ‘Amendments to Commonwealth EIA Procedures’ (1995) 12 EPLJ 235; Fleming, ‘Commonwealth Assessment of Forest Operations After Gunns (No 2)’ (1996) 13 EPLJ 309.

8.

See generally Macintosh, ‘Why the Environment Protection and Biodiversity Conservation Act’s Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives’ (2004) 21 EPLJ 288; McGrath, ‘Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2005) 22 EPLJ 20; Macintosh and Wilkinson, ‘EPBC Act: A Five Year Assessment’, Australia Institute, Discussion Paper No 81, Canberra, 2005; McGrath, ‘Swirls in the Stream of Australian Environmental Law: Debate on the EPBC Act’ (2006) 23 EPLJ 165 and response by Macintosh and Wilkinson (2007) 24 EPLJ 81; Baird, ‘Public Interest Litigation and the Environment Protection and Biodiversity Conservation Act’ (2008) 25 EPLJ 410.

9.

See 6.5 and following.

10. See Parliamentary Standing Committee on the Environment ‘Streamlining Environmental Legislation: Inquiry into Streamlining Environmental Regulation, ‘Green Tape’, and One Stop Shops’, available at ; and the National Review of Environmental Regulation, which focuses on identifying unworkable, contradictory or incompatible regulation and seeking opportunities to harmonise and simplify regulations: see . 11. See 6.24. 12. See s 13. 13. Section 15B. National heritage became a matter of national environmental significance under the Act on 1 January 2004. The new system provides for the establishment of the National Heritage List, a Commonwealth Heritage List and a list of overseas places of historic significance to Australia; and protection of Australian government-owned or managed heritage places, including the development of heritage strategies and management plans: Pt 15 Divs 1A, 3A, Ch 5A. For places included in the National Heritage List, see ; for the Commonwealth Heritage List go to ; and for overseas places of historic significance to Australia go to . 14. See s 17. 15. Section 18. 16. Section 20. 17. See s 22. 18. See s 24. 19. Sections 24B and 24C. 20. Sections 24D and 24E.

21. Section 25A(1). 22. Defined in s 27 to exclude Commonwealth marine areas. 23. See s 5(5). 24. Part 13A. 25. Part 13 div 4. 26. Part 13, div 3. 27. Chapter 5B. 28. Section 337. 29. Chapter 5A. 30. Effectively, this means Commonwealth land, marine areas including the Australian Whale Sanctuary (Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA) s 225) (that is, excluding coastal waters — see 5.29), and external territories (excluding Norfolk Island). Territory land in the Australian Capital Territory is also excluded: see s 525. 31. Section 28; and see Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 (action of National Capital Planning Authority could be an action for the purposes of s 28). 32. See Table 5.1 at 5.12. 33. See Gumley, ‘Calls for New Matters of National Environmental Significance’, National Environmental Law Review, Autumn 2005, at 43. 34. See . And see also Tridgell ‘Evaluating the Effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): 2008–2012’ (2013) 30 EPLJ 245. 35. The government’s response to the Review report may be accessed at . 36. Section 74A. 37. See Brown v Forestry Tasmania (No 4) [2006] FCA 1729. 38. Section 524. Section 524 not only excludes the final operative decision from the Act, but also decisions and related deliberative processes that might be made or undertaken in the course of reaching the final decision; see Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 (FCAFC). In Forestry Tasmania v Brown [2007] FCAFC 186, the question was raised, but not decided, whether a governmental grant of a right to enter Crown land to conduct logging operations was such an authorisation. 39. Section 524A. 40. Section 67. The prohibiting provisions are designated ‘controlling provisions’. 41. Section 67A. 42. Sections 11–25. The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision (offence or civil penalty provision) applies: ss 25A and 28AA. Note, however, that liability for actions depends upon whether the significant impact results from a primary action or a secondary action that is not authorised by the primary actor: ss 25AA and 28AB. 43. Sections 26–27. 44. Section 28. 45. These provisions must be reviewed every five years: s 28A. 46. This is discussed further at 6.13.

47. Section 68. For the applicability of this provision to actions to be undertaken under a contract, subcontract or other arrangement, see s 68A. Requirements for referrals are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 Pt 4. 48. Section 68. 49. Sections 69 and 71. 50. Section 70. Failure to comply with such a request would effectively mean that a person would not receive approval to conduct the activity, and if the activity were found to be a controlled activity, the person conducting the activity would be liable to pecuniary penalties and injunctive action. 51. Section 170C. Although the minister must publish notice of the withdrawal of the referral (s 170C(3)), failure to do so will not affect the validity of the referral: Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2007] FCA 1178; FCAFC 175. 52. Regulation 4.03. 53. Section 74A. 54. Sections 78A–78C; reg 4A.01. And see Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226 (reconsideration of impacts of proposal on threatened species). 55. Section 78. 56. Section 74AA. 57. Section 156A. 58. Sections 156B and 156D. 59. Per Heerey J in Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 at [22]. 60. Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 at [91]; [2007] FCAFC 175. 61. Section 74(1), (1A), (1B). 62. Section 74(2). 63. Section 74(3); this is subject to commercial-in-confidence exclusions: s 74(3A), (3B). 64. Krajniw v Brisbane City Council [2011] FCA 563 at [10]; Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [92]. 65. Sections 67 and 75. 66. For further discussion on this issue, see 22.46. 67. Available at . 68. Departmental guidelines that purported to exempt farmers holding state permits to shoot flying foxes (a listed threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)) were declared illegal in Humane Society International v Minister for Environment and Heritage (2003) 126 FCR 205, and the minister had to cause the guidelines to be amended. 69. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 2.10. The Australian Alps National Parks and Reserves were included in the National Heritage List by an instrument published in Gazette No. S237 on 7 November 2008. 70. This is not a precondition to making a valid decision, or jurisdictional fact, and is therefore not subject to objective review by the court: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3.

71. Booth v Bosworth (2001) 114 FCR 39 at 64; Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 at [91–92]. 72. Fisher, ‘Dams, Irrigation and World Heritage Areas: The Nathan Dam Case’ (2004) 21 EPLJ 85; McGrath, ‘Minister Appeals Nathan Dam Case’ (2004) 21 EPLJ 90; Fisher, ‘The Meaning of Impacts: The Nathan Dam Case on Appe