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The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 3

The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 3. Last time:. Development of Modern Parliamentary Democracy and the rise of the statute Equity Doctrine of Precedent Australian Legal System: European Discovery Colonisation and Development Federation. Today:.

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The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 3

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  1. The Australian Legal System and the Common Law ‘Downunder’ SEMINAR 3

  2. Last time: Development of Modern Parliamentary Democracy and the rise of the statute Equity Doctrine of Precedent Australian Legal System: European Discovery Colonisation and Development Federation

  3. Today: Australian Legal System: Federation Independence An Australian Republic? Case Study: The Australian Legal System and the Australian environment

  4. Your homework: Question: Queen Elizabeth II is the head of state of how many countries? Answer: 16

  5. The Queen’s Realms: United Kingdom Canada Australia New Zealand Jamaica Barbados The Bahamas Grenada • Papua New Guinea • Solomon Islands • Tuvalu • Saint Lucia • Saint Vincent and the Grenadines • Belize • Antigua and Barbuda • Saint Kitts and Nevis.

  6. Federation: 1 January 1901

  7. Independence • World War 1 and Treaty of Versailles • Consitutional Crisis in Canada and the Balfour Declaration of 1926 • World War 2 • Statute of Westminster (Imp) 1931 • Statute of Westminster Adoption Act (Cth) 1942

  8. Privy Council (http://www.jcpc.uk/index.html)

  9. Independence The Australia Acts enacted by both the Australian and in the United Kingdom Parliament in 1986

  10. Queen visits Australia in 1963: • http://www.youtube.com/watch?v=6ibGwqMM6uU • Looking back on the 1999 Republic Referendum: • http://youtu.be/rNM3iyCH4do • Queen visits Australia in 2011: • http://youtu.be/cfOZ61I5V4E An Australian Republic?

  11. Australia as a federation A case study: the Murray Darling Basin

  12. The MDB: some statistics More than 1 million km2 (Italy = 301,338 km2) Approx. 14% of Australia’s land mass Ranges from rainforest and inland sub-tropics to mallee and semi-arid land In 1996: home to 2 million people 3.4 million people directly reliant on its water 70% of Australia’s irrigated agriculture occurs in MDB Accounts for 40% of Australia’s agricultural output

  13. The MDB: some more statistics • 20 mammal species extinct, 16 mammal species endangered • 35 endangered bird species • 95% of the river length degraded and 30% substantially modified • Home to 16 of Australia’s 64 Ramsar Convention wetlands • http://en.wikipedia.org/wiki/List_of_Ramsar_wetlands_of_international_importance

  14. Joseph Carruthers, NSW Delegate to the Constitutional Convention, Melbourne 1898 “If the day is to come when the Darling and the Murrumbidgee are to be drained dry for irrigation purposes, Australia will be all the happier and all the better for that day having arrived.”

  15. Tom Trevorrow, Ngarrindjeri Elder, 2010 “Our traditional management plan was don’t be greedy, don’t take any more than you need and respect everything around you. That’s the management plan – it’s a simple management plan, but so hard for people to carry out.”

  16. Question: • How many jurisdictions play a role in the management of the Murray Darling Basin?

  17. How did this happen? What did it mean for the MDB? versus

  18. The Constitution & the Environment An express Cth environment power? Powers of the states with respect to land and natural resources Exclusive powers of the Commonwealth (section 52 and section 90) Concurrent powers Section 51 (subject to section 109)

  19. Section 51 & Commonwealth environmental law (i) trade and commerce with other countries, and among the States; (viii) astronomical and meteorological observations; (ix) quarantine; (x) fisheries in Australian waters beyond territorial limits; (xxix) external affairs; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

  20. Commonwealth v Tasmania (1983) 46 ALR 625 (“The Tasmanian Dams Case”)

  21. Tasmanian Dams case: timeline 1978: a state-owned company, the Hydro-Electric Commission, proposed the construction of a hydro electric dam on the Franklin river in south west Tasmania The dam would have flooded the area. June 1981: the Tasmanian state (Labor Party) government created the a national park of the area to protect the river. May 1982:a state government (Liberal Party) was elected and it supported the dam. November 1982: the Franklin area was declared a UNESCO World Heritage site. 1983 Federal election: a Labor government was elected. It had promised to intervene to prevent the dam and it passed the World Heritage Properties Conservation Act 1983, that enabled it to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World heritage area. The Tasmanian government challenged these actions in the High Court

  22. The Tasmanian Dams Case The Convention for the Protection of the World Cultural and National Heritage Commonwealth legislation prohibited the building of the proposed Franklin Dam in the Western Tasmanian Wilderness Area, which had been included on the World Heritage List, established under the Convention The external affairs power will support Cth legislation that is reasonably appropriate and adapted to the task of implementing an international treaty regardless of whether the subject matter of the treaty is inside or outside Australia.

  23. The Constitution & the River Murray versus Section 98 Section 100

  24. Sections 98 & 100 • Section 98: The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. • Section 100 The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

  25. CO-OPERATIVE FEDERALISM

  26. MDB TIMELINE 1900: Federation 1914: First Interstate Agreement (Cth, SA, NSW, Vic) sharing water + infrastructure costs 1992: Second Agreement (Cth, SA, NSW, Vic, Qld and ACT later) 1992: COAG National Strategy for ESD 1994: COAG Water Reform Framework 2004: National Water Initiative and Living Murray Agreement 2007: ten-year National Plan for Water Security (including a cap on water diversions administered by the Cth) 2007: Water Act negotiated, introduced, and passed 2008: Water Act commenced 2008: Amendments to Water Act.

  27. John Howard, Prime Minister July 2007 Commonwealth power was extensive but ...“not as extensive as to give us a close to ideal scheme.”

  28. WHY ???

  29. What about the Water Act 2007 (Cth) A so-called “hotch-potch” of Constitutional Powers See sections 9 and 9A:

  30. The Water Act, the external affairs power and international agreements • 1971 Ramsar Convention • The 1992 Convention on Biological Diversity • 1994 United Nations Convention to Combat Desertification • 1979 Convention on the Conservation of Migratory Species of Wild Animals • 1992 UN Framework Convention on Climate Change • The Agreement between Australia and China for the Protection of Migratory Birds (CAMBA) • The Agreement between Australia and Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA) • The Agreement between Australia and the Republic of Korea on the Protection of Migratory Birds (ROKAMBA)

  31. The Water Act: Objects (section 3) (a) to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest; and (b) to give effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources) and, in particular, to provide for special measures, in accordance with those agreements, to address the threats to the Basin water resources; and (c) in giving effect to those agreements, to promote the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and (d) without limiting paragraph (b) or (c): (i) to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused; and (ii) to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin (taking into account, in particular, the impact that the taking of water has on the watercourses, lakes, wetlands, ground water and water-dependent ecosystems that are part of the Basin water resources and on associated biodiversity); and (iii) subject to subparagraphs (i) and (ii)--to maximise the net economic returns to the Australian community from the use and management of the Basin water resources; and

  32. The Water Act: Objects (section 3) cont. (e) to improve water security for all uses of Basin water resources; and (f) to ensure that the management of the Basin water resources takes into account the broader management of natural resources in the Murray- Darling Basin; and (g) to achieve efficient and cost effective water management and administrative practices in relation to Basin water resources; and (h) ...

  33. The Basin Plan: purpose and objects The Basin Plan is to provide for the integrated management of the Basin’s water resources in a way that promotes the objects of the Act. Section 20 contemplates that in order to achieve these objects, the Basin Plan is to: (a) give effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources); and (b) establish and enforce environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources; and (c) provide for Basin-wide environmental objectives for water-dependent ecosystems of the Murray Darling Basin and water quality and salinity objectives; and (d) provide for the use and management of the Basin water resources in a way that optimizes economic, social and environmental outcomes; and (e) provide for water to reach its most productive use through the development of an efficient water trading regime across the Murray Darling Basin; and (f) provide for requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2; and (g) provide for improved water security for all uses of Basin water resources.

  34. The future ? A Greener Constitution for Australia?

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