The Influence of International Environmental Law on Australian Courts

• Date: 01 April 1998
• Author: Ben Boer,Donald R. Rothwell
• DOI: http://doi.org/10.1111/1467-9388.00124
• Published date: 01 April 1998

Volume 7 Issue 1 1998 IEL in Australian Courts

Donald R. Rothwell and Ben Boer

Introduction

The impact of international environmental law upon Aus-

tralian law and institutions has grown signif‌icantly in

recent decades.

1

Since the 1983 decision by the High

Court of Australia in Commonwealth v. Tasmania

(Tasmanian Dam),

2

there has been a growing awareness

of the impact of international environmental law upon

Australia and the important role that the courts will play

in the process of interpreting and implementing the law.

Because of Australia’s federal system, this impact has

not only been at the federal or national level, but also

at the State level where specialist environmental courts

and tribunals have been inf‌luenced by international

developments. The purpose of this article is to review

these developments, particularly through an analysis of

the decisions of the courts, and to assess the inf‌luence

international environmental law currently has upon Aus-

tralian courts and whether that inf‌luence may grow in

the future.

The Australian Constitution

and International Law

Australia has a federal constitutional framework created

under the Commonwealth of Australia Constitution Act

1900 (Imperial) which has been operative since 1901.

The federation is comprised of a central government –

the Commonwealth of Australia – and six State govern-

ments.

3

There are two internal Territories which have

been granted differing forms of self-government,

4

and a

number of external territories. The Commonwealth

government has under the Constitution specif‌ic enumer-

ated powers. Most of these powers are concurrent with

the States and only some Commonwealth powers are

exclusive.

5

The States have very wide powers to gener-

ally enact laws for the ‘peace, welfare and good govern-

ment’ of the State.

6

However, when a Commonwealth law

conf‌licts with a State law, the Commonwealth law pre-

vails to the extent of the inconsistency.

7

The Commonwealth Government has the primary

responsibility for the negotiation, adoption and

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31

implementation of international law in Australia. This

responsibility is ref‌lected in the power conferred upon

the Governor-General and the members of the Common-

wealth Executive Government to adopt treaties or con-

ventions on behalf of Australia.

8

There has recently been

considerable debate in Australia over the extensive

power of the Commonwealth to negotiate, adopt and

give effect to treaties and conventions. This debate has

partly developed in response to the expansive interpret-

ation given by the High Court of Australia to the power

of the Commonwealth Parliament to enact laws and regu-

lations based on treaties and conventions through s.51

(xxix) of the Constitution: the ‘external affairs’ power.

9

In particular, concerns have been raised over the ability

of the Commonwealth to alter the ‘federal balance’ of

powers between the Commonwealth and State Govern-

ments through excessive reliance upon international

treaties and conventions to enact laws which previously

would not have fallen within the ambit of Commonwealth

power. However, notwithstanding some recent reforms

to the treaty-making process in Australia,

10

it is unlikely

that the Commonwealth will retreat from its contempor-

ary reliance upon its constitutional power to give effect

to its international obligations. The Australian States do

occasionally co-operate with the Commonwealth

Government in the implementation of conventions and

treaties; however this co-operation is primarily based on

policy and political considerations rather than consti-

tutional or legal grounds.

Customary international law has primarily affected Aus-

tralian law through its impact on the common law.

Though Australian courts have traditionally adhered to

the incorporation theory when considering the impact

of international law, the courts have in recent years been

more prepared to take account of developments in cus-

tomary international law and the impact this may be hav-

ing upon the common law.

11

This is particularly evident

in the area of human rights, where courts of all levels

throughout Australia have been prepared to interpret

the common law to ref‌lect signif‌icant developments in

international human rights law.

12

In 1995, the High Court

of Australia took these initiatives a step further when in

Minister for Immigration and Ethnic Affairs v. Teoh

13

it