LAWS20009 Lecture Notes - Lecture 2: Local Government Areas Of Victoria, Heavy Mineral Sands Ore Deposits, United Nations Conference On Sustainable Development
LECTURE 2: POWERS, DUTIES & RIGHTS IN ENVIRONMENTAL
LAW
KEY CONCEPTS
Concept
Explanation
Powers
• Capacity to make and enforce decisions upon others
Rights (Fisher)
Liberty Rights
• Capacity to act, without consequence, within the standards set by those with power
Rights (per Sax)
Claim Rights
• A legal privilege that places responsibilities or duties on another regarding their actions
towards the rights-holder – used in human rights
Duties/ Obligations/
Responsibilities/ Liabilities
• Imposition of a power-maker’s standard that requires compliance
• Terms can be conflated for the purpose of this subject
Legal Personality
• Could be better described as ‘legal personhood’ – can give non-humans personhood
Standing
• The ability to have your rights recognised in this legal matter, idea that you can sue in your
own name (enforce your own rights)
States
• Nations – a nation state, not an Australian state
WHO HAS THE POWER TO MAKE ENVIRONMENTAL LAWS?
• By design, the power to make environmental laws is separate from the power to enforce environmental laws – separation
of powers
• Primarily, environmental laws are made by the Parliament – state and Commonwealth Parliaments (division of powers)
Local Government
• Local Councils: ‘A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council
has a function or power under this or any other Act’
o Section 111(1) of the Local Government Act 1989 (Vic)
• Municipal Council: ‘A Municipal Council may do all things necessary or with respect to any act, matter or thing in respect of
which the Council has a function or power under this or any other Act’
o Sections 8A and 12(3) of the Planning and Environment Act 1987 (Vic)
State Parliament
• Victoria: ‘The parliament shall have power to make laws in and for Victoria in all cases
whatsoever’
o Section 16 of the Constitution Act 1975 (Vic)
Commonwealth Parliament
• Can only make laws under the list of powers contained in Section 51 of the Australian Constitution: separates state &
Commonwealth Government power
• Conflict between State & Federal Laws: if the Commonwealth has the power to legislate, then Commonwealth Laws prevail
• Section 109
• Power can also be limited by the Constitution
WHO HAS THE POWER TO ENFORCE ENVIRONMENTAL LAWS?
• Given to the executive – people who form the government (separate from parliament)
• Power to enforce is limited to what they’ve been given
• In VIC: primary body is the EPA, limited scope – only focus on pollution
Power to enforce environmental law
• Executive Bodies:
o Ministers
o Departments
o Environmental Protection Authority
• Power delegated by respective Parliaments
• Power limited by what is grated by Parliament
• Some environmental laws which create duties or liabilities also give
relevant government authority the power to enforce those rules
o Environmental Protection Act 1970 (Vic)
• In some circumstance people, corporations or groups can enforce environmental law
3 Roles of the Courts
• Create environmental laws through their
judgements (precedent) – due to
Common Law legal system of Australia
• Enforce environmental laws through their
judgements
• Responsible for making sure that
parliaments & governments stay within
their lawful authority under the
Constitution & Acts of Parliament
The states have the widest
power to make
environmental law within
Australia
Document Summary
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