The Laws of Nature, State or Federal?: A Legal History of the Informal Transition of Responsibility over Environmental Policy in the Australian Commonwealth, 1974–1983

Abstract

Between 1974 and 1983 the Australian Federal Government in Canberra enacted a series of legislations that were designed to gradually transfer authority for environmental policy away from the state governments and towards itself. This informal transition was enacted, built upon, and completed by three consecutive governments representing both of the country’s main political parties, indicating the bi-partisan attitude towards the need to reform the federal relationship in Australia during this period of “new federalism”. This paper represents one of the first attempts to look at the legislative development of federal environmental policies through a heavy analysis of legal documents to produce a legal history that ascertains the legality of Canberra’s unprecedented legislation. Through this process it becomes apparent that the development of these pieces of legislation can be divided into two discernible historical periods defined by their effectiveness in asserting a federal presence in Australian environmental policymaking. In the background of these developments are important questions concerning the traditional emphasis placed by the High Court of Australia on state rights, and Canberra’s cautious manoeuvring around this contentious issue.  In doing so, this paper helps to expand upon the relatively small body of work surrounding this period of great constitutional change in Australia, suggesting that these developments were instrumental in the fundamental changes to the federal relationship which are associated with the governments of Gough Whitlam, Malcolm Fraser, and Bob Hawke respectively.