Last updated 14 December 2016 This chapter is currently under review.
There are four levels to the Queensland environmental legal system:
- international law
- Commonwealth law
- Queensland (state) law
- common law.
Local governments operate under state law and provide an important subset of plans and laws that apply within their areas. In practice, state legislation provides the major laws protecting the environment, but all levels have an important role.
Every level of government in Australia—Commonwealth, state and local—have powers to protect the environment in different and often overlapping ways. Their responsibilities are messy and not clear cut. This can be confusing, especially where multiple government departments are involved in assessing a large project.
A lecture providing an introduction to government and environmental regulation in Australia can be viewed below or is available on Youtube.
Australia has important obligations under international law for many environmental issues including World Heritage protection, biodiversity conservation, international wildlife, trade, marine pollution and climate change.
Detailed information on all of the major environmental treaties that Australia is a party to is available on websites devoted to the treaties such as the:
- World Heritage Convention
- Biodiversity Convention
- Ramsar Convention
- United Nations Framework Convention on Climate Change.
With rare exceptions, international bodies such as the United Nations do not have power to control activities in Australia other than through agreement and implementation by the Australian Government. For example, the World Heritage Committee recently strongly criticised rapid development adjacent to the Great Barrier Reef but control of this remains in the hands of the Australian and Queensland governments.
The main Commonwealth environmental legislation is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). It regulates, amongst other things, actions that may impact on matters of national environmental significance such as World Heritage areas, international (Ramsar) wetlands and threatened species.
The Great Barrier Reef Marine Park Act 1975 (Cth) is also important in Queensland in regulating activities in the Great Barrier Reef.
Particularly important state laws include the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act), the Environmental Protection Act 1994 (Qld) (Environmental Protection Act), the Nature Conservation Act 1992 (Qld) and the Fisheries Act 1994 (Qld).
Common law involves the decisions of courts that form binding precedents and rules of law.
Common law traditionally protected people and property only and largely did not recognise obligations to protect the environment. Partly for this reason, modern environmental law is largely based on legislation.
However, common law still permeates many aspects of our legal system. It creates concepts and obligations that may be relevant to protecting the environment, such as the concept of standing (i.e. the right to sue in court) and the tort of public nuisance.
Who administers environmental law?
The Queensland environmental legal system is administered principally by the Commonwealth, the state and 77 local governments, and the courts.
The major Commonwealth department and agency responsible for environmental issues in Queensland are the:
The main Queensland Government departments responsible for environmental issues are the:
- Department of Agriculture and Fisheries
- Department of Energy and Water Supply
- Department of Environment and Heritage Protection
- Department of Infrastructure, Local Government and Planning
- Department of National Parks, Sport and Racing
- Department of Natural Resources and Mines
- Department of State Development (including the Coordinator-General).
The local governments have a very important role in regulating where and how development occurs and are the principal point of contact for most planning and development issues.
The Queensland Planning and Environment Court is the most important court for environmental disputes and hears several hundred appeals each year about planning matters under the Sustainable Planning Act and related legislation.
The Land Court of Queensland hears objections to mining leases and petroleum leases.
The Federal Court has jurisdiction for the EPBC Act.
Summary of obligations
The environmental legal system in Queensland is complex but, as a broad summary, all people conducting activities that affect the environment in Queensland should:
- obtain and comply with any necessary licence or government approval
- comply with any relevant standard imposed by the law, including taking all reasonable and practicable measures to prevent or minimise environmental harm
- notify the Queensland Department of Environment and Heritage Protection if unlawful material or serious environmental harm (as defined in the Environmental Protection Act) occurs or may occur.
Land ownership is a fundamental issue underlying the environmental legal system. The different forms of land ownership are known as tenures, which are quite complex.
- around 70% of land is owned by the state but leased to private individuals and companies in a land tenure known as leasehold land
- around 20% of Queensland has been sold by the state to private owners and held as freehold land
- around 5% of state-owned land in Queensland is set aside for nature conservation as national parks.
- Freehold land is still subject to many environmental laws such as local government planning controls.
Mining leases are a form of tenure that can be granted by the state government over other tenures including freehold land, to allow mining of minerals from the land.
Native title is a form of land tenure recognising Aboriginal and Torres Strait Islanders’ traditional land tenure rules. Native title has been extinguished on all freehold land but may still exist on other forms of tenure.
All of these different tenures fundamentally affect legal rights to use and develop land.