Logical minds like to think of the different levels of government like a neatly layered cake, but the reality is more like scrambled eggs. Nowhere is that more true than in relation to protecting and managing the environment.
The release of the final Murray-Darling Basin Plan is a good example of how working out which level of government in Australia is responsible for the environment is often downright confusing. Aren’t rivers controlled by the states? Why is the Commonwealth involved?
Most Australians know the basic roles of the three tiers of government in Australia. The Commonwealth deals with things like defence and immigration, while state and territory governments run the police, schools and hospitals, and local governments are responsible for planning and rubbish collection. But even the well-known examples are often muddled by overlapping roles.
It is not because of poor design that the levels of government are complicated and overlap, but because the problems they are grappling with are themselves complicated and overlapping. Managing the Murray-Darling Basin - involving a huge area stretched over four states and the ACT with a large population - is a perfect example of this.
Six key ingredients
There are six keys to understanding why there are no neat roles in government in Australia, particularly regarding the environment. They explain broadly why the state, territory and local governments deal with most day-to-day issues, but the Commonwealth’s powers are so pervasive that it can deal with everything from plain cigarette packaging to banning the super-trawler the Abel Tasman. While things like the Murray-Darling Basin Plan are the subject of much more complicated explanations, these are are the six basic ingredients.
The first key thing to understand is that state governments were historically responsible for environmental management, and they still often resent the Commonwealth intruding into these matters. State, territory and local governments still handle the vast bulk of day-to-day decisions and administration of land and water management such as around 250,000 town planning approvals a year. In contrast, the main Commonwealth environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), deals with only around 400 referrals each year.
The Commonwealth typically has a role in big, controversial projects such as the Tasmanian Dam in 1983 and the Traveston Crossing Dam in 2009. In recent years the Commonwealth has also been leading the way on major issues such as the Murray-Darling Basin Plan and climate change.
State governments often resent the Commonwealth’s role in resource and environmental decisions. An example of this is the Queensland Premier’s recent attacks on the Federal Environment Minister for allegedly delaying Gina Rinehart’s Alpha Coal Mine. The Premier told the Minister to “get out of the way” of projects in his state.
The second key thing to understand in this jostle for power is that the Commonwealth Government has wide powers to make laws to protect the environment. This is despite the fact that the Commonwealth is limited to making laws for what are called its “heads of power” in the Commonwealth Constitution.
The Commonwealth’s heads of power cover matters such as “taxation”, “corporations” and “external affairs”. There is no express head of power for “the environment” but the wide interpretation now given to the heads of power that are provided means this hardly matters.
The High Court decided in the Tasmanian Dam dispute in 1983 and subsequent cases that under the external affairs power the Commonwealth Government may enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations. Due to the large number of international treaties that Australia is a party to, such as the Biodiversity Convention, this is a very wide and important head of legislative power to make laws to protect the environment.
The third key thing to understand is that the purpose and practical effect of a Commonwealth law are irrelevant for determining its validity. This means, for example, that the carbon tax is valid under the Commonwealth’s head of power over taxation and it is irrelevant in terms of its constitutional legality that the purpose of the tax is to protect the environment.
This is incredibly important for the Commonwealth and gives it freedom to make laws to achieve wide-ranging policy objectives.
The fourth key thing to understand is that there are no issues that are exclusively reserved for the state and territory governments. This means that the Commonwealth can have a wide reach into virtually any area provided it can be linked to one of its heads of power.
That Commonwealth laws override state, territory and local government laws to the extent of inconsistency is the fifth thing to understand. This puts the Commonwealth at the top and gives it the whip hand.
The sixth ingredient is that, despite important limits recently being imposed, the Commonwealth has a wide discretion on how it distributes funding and the conditions that are attached to funding.
Because the Commonwealth collects most of the taxation in Australia, its power to fund different programs gives it a huge influence over programs that are implemented at state and territory level such as health and education.
When we combine these six ideas in practice with over 100 years of trying to address often complicated, overlapping problems like environmental protection, the three tiers of government in Australia have become so entwined that it often becomes difficult to distinguish their roles in a logical, neat way.
Cooperation and occasional battles
While battles between the Commonwealth and state governments often flare up and make the headlines, generally they cooperate. We see this if we look at things like environmental protection and taxation.
Battles like the Tasmanian Dam dispute in 1983 and the present fight between the Commonwealth and Queensland governments over the mining tax and state royalties are interspersed by long periods of cooperation.
This reality reflects the idea of “cooperative federalism”. Federal - state relationships do not always need to be smooth and it is unrealistic to expect that they will.
If push comes to shove the history of disputes between the Commonwealth and the states and territories over the past century has shown that the whip is firmly in the Commonwealth’s hand.
There is no question the Commonwealth could go further in many areas of regulation such as the protection of the environment. Current Commonwealth laws by no means reflect the full extent of its powers.
The choice of how far the Commonwealth should go in exercising these environmental powers within the scrambled egg of government is now largely a political one for the party in power.
The political push from the Commonwealth for increased involvement in resource and environmental matters is ebbing at the moment. The Commonwealth is in the process of handing approval powers under its main environmental laws to the state and territory governments. This will weaken Australia’s system for environmental protection but the pendulum will swing back in the future.
When the Commonwealth chooses to intervene and where the states refuse to cooperate, the Commonwealth can be inventive in the use of its legislative and funding powers. For example, after Victoria refused to refer power for the Water Act 2007 (Cth), the Howard Government enacted it in reliance on a combination of constitutional powers including trade and commerce, corporations, external affairs, and the territories power.
In this sense the Murray-Darling Basin Plan, which has been made under the Water Act 2007 (Cth), is just the most recent illustration of the broad Commonwealth power to protect and manage the environment.
The answer, then, to the question, “who has the environmental power in Australia?” is every level of government, but the Commonwealth is ultimately in control where and when it chooses to be.
Author’s note: Many books, articles and High Court decisions could be used as references for the points made above. But one reference that particularly assisted me many years ago is James Crawford, “The Constitution and the Environment” (1991) 13 Sydney Law Review 11.