What are the sources of environmental law?

The two sources of law in Australia are legislation (law made by Parliament) and common law (judge-made law, or case law)

 

Legislation

Legislation is the main source of environmental law in Australia. Legislation (also called statute or statutory law) refers to the Acts and Regulations which are made by State or Australian Parliaments.

Legislation sets out the powers and processes by which Ministers, Government Departments and local councils must make decisions about the environment. Legislation also sets out the enforcement powers and penalties for breaching environmental laws.

Legislation can empower other public authorities to prepare plans and policies about the environment, such as enabling local councils to prepare local environmental plans (LEPs).

Most environmental law in NSW is made by the State Government. This legislation covers a range of environmental issues such as native vegetation management, water management, the protection of threatened species and native species, protected areas, Aboriginal cultural heritage, bush fire management, pest and weed control, planning and development assessment, just to name a few.

To access NSW legislation, including all State and Local Environmental Plans in NSW, visit the NSW Legislation website.

To access national legislation, visit the ComLaw website.

Strictly speaking, international environmental treaties and conventions are not a source of environmental law in Australia unless they have been recognised through domestic legislation. Even if an international treaty or convention has been signed or ratified by Australia it is not enforceable until domestic legislation has been passed by Parliament. To find out more about international environmental law as a source of law, see our Fact Sheet on Commonwealth threatened species law. For more information about how international treaties and conventions are negotiated and implemented, visit the Australian Government Department of Foreign Affairs and Trade website. To find the text of international treaties and conventions, visit the Australian Government Department of Foreign Affairs and Trade website.

 

Common law

The common law is also part of environmental law. Common law is made by the courts. It is sometimes called judge-made law, or case law.

Under our common law system, the role of the courts is to:

  • settle disputes about what legislation means in practice by interpreting the legislation;
  • settle common law interferences such as nuisance; and
  • determine whether there has been a breach of the law and, if so, to decide on the appropriate penalty or remedy.

The decision of a court, known as a judgment, can form a precedent which other courts at the same or lower level must follow.

To access NSW Land and Environment Court judgments, visit the NSW Caselaw website.

To access NSW Supreme Court judgments, visit the NSW Caselaw website.

Access Federal Court and High Court judgments.

Working out what the relevant environmental law is for a particular problem can be complicated. It may involve a two-step process of identifying the correct piece of legislation, and then finding out how the courts have applied that legislation. There may be several pieces of legislation that apply to a particular problem. For more information about environmental laws, see EDO NSW’s Fact Sheets.

 

This project has been assisted by the New South Wales Government through its Environmental Trust.

 

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