IALL 2019 Recap: International Environmental Law in Australia

By Julienne E. Grant

Professor Tim Stephens spoke to attendees on the final day of the IALL conference, October 30, 2019. He is Professor of International Law at the University of Sydney; an Australian Research Council Future Fellow; and Deputy Director of the University of Sydney’s Marine Studies Institute. The topic of Professor Stephens’s excellent presentation was “International Environmental Law in Australia: Old Problems, New Challenges.”

Professor Tim Stephens, Professor of International Law at the University of Sydney.

The professor began his talk by defining International Environmental Law (IEL). He said that it is a type of public international law that “seeks to conserve/manage natural and cultural/built environments.” He added that IEL is becoming increasingly important around the world and that it operates somewhat like the concept of equity.

Professor Stephens explained that IEL is predominately treaty-based; there are currently hundreds of such documents in force, with Australia being a party to more than forty multilaterals. The speaker explained, however, that treaties to which Australia is a party are not self-executing; that is, there is no automatic implementation, and only the Parliament of Australia can implement treaties. The professor indicated that the division between federal and state responsibilities is extremely complex in Australia, a fact that other conference speakers emphasized. Here, Professor Stephens cited the “Tasmanian Dam Case” [1983] HCA 21, which radically expanded the power of the Australian parliament in external affairs. Overall, he said, the federal system has complicated Australia’s IEL commitments.

The speaker also indicated that the federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC), although designed for the purpose of environmental protection, is not working; the federal government has not taken the lead on environmental management, leaving this to the individual states. He said that the Great Barrier Reef, a UNESCO World Heritage Site, is under significant environmental pressure; there is, for example, a coral “bleaching” problem, most markedly in the north part of the site. UNESCO, however, has not placed the Great Barrier Reef on its “In Danger” list yet.

The professor pointed out, though, that Australia has been a strong supporter of IEL overall, noting the country’s interest in protecting its unique species and biodiversity (he believes Australia is experiencing an extinction crisis with regard to both). He also noted that Australia brought a case to the International Court of Justice (ICJ) in 2010, accusing Japan of breaching several of its obligations under the 1946 International Convention for the Regulation of Whaling, as well as other international commitments to preserve marine mammals. Australia won the case (Australia v. Japan, decided March 31, 2014).

But the Australian government, Professor Stephens said, has taken an ambivalent stance on climate change because the country is a big user and exporter of fossil fuels. According to the speaker, there are weak emission targets in Australia, and the Clean Energy Future Act 2011 was repealed by the current government. He said that there are presently dozens of lawsuits in Australia related to climate change, and there is actually a separate Land and Environment Court in New South Wales (NSW). The current NSW government wants to override the federal “coal-friendly” administration. Gloucester Resources Limited (GRL) v Minister for Planning [2019] NSWLEC 7 has, however, changed the situation somewhat as dicta in that case suggests that climate change was a good reason to deny a construction permit for an open-cut coal mine. Professor Stephens called the language in that case “revolutionary,” as previously Australian courts did not look at anything related to IEL.

Professor Stephens concluded his lecture with the following thoughts:

• IEL is being challenged significantly in the current geological era (Anthropocene), and we can expect to see a new round of IEL mechanisms;
• Australian governments have generally been supportive of IEL treaties (but not always!);
• Australia’s current federalist system has complicated its commitments to IEL;
• The EPBC Act of 1999 has not been effective;
• a new generation of environmental laws is needed in Australia, including a federal environmental act, monitored by independent institutions.

Overall, with regard to environmental protection, Professor Stephens believes that decision-making should be taken away from politicians and placed into the hands of scientists and other experts.

Professor Stephens’s PowerPoint slides for the presentation are posted on the IALL website.