The External Affairs Power and Environmental Protection in Australia
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| DOI | http://doi.org/10.22145/flr.24.1.3 |
| Subject Matter | Article |
THE EXTERNAL AFFAIRS POWER
AND
ENVIRONMENTAL
PROTECTION
IN
AUSTRALIA
Richard Marlin*
INTRODUCTION
The
present
threat
to
environmental
resources
world-wide,
in
terms
of
its significance for
human
survival,
ranks
second
only
to
the
dangers
posed
by
a
nuclear
war
...
Desertification, acidification
of
the
environment, chemical pollution
of
air,
water
and
soil
resources,
depletion
of
the
ozone
layer,
the
"greenhouse effect"
of
global
warming,
and
the
loss
of
genetic versatility are
just
afew
of
the
phenomena
that
exemplify a
growing
imbalance
between
human
enterprise
and
life-sustaining biosphere.1
Concern
for
the
environment
is
undoubtedly
a"significant social
and
political force"
within
the international community.2 Where
members
of the international
community
once
viewed
environmental
protection as alocal
or
national issue,
ther
have
now
been
compelled to see
many
environmental problems as global
in
scope. This
change
in
attitude
was
exemplified
in
1992
when
the
United
Nations
convened
the
United
Nations
Conference
on
Environment
and
Development
in
Rio
de
Janeiro, Brazil,
attended
by
representatives from 170 nations, including 130
heads
of state
and
government.4
One
of the outcomes of
the
conference
was
the
adoption
of
the
Rio
Declaration
on
Environment
and
DevelopmentS
(Rio
Declaration).
The
Rio
Declaration
is a
declaration of internationally accepted
fundamental
principles
on
development
and
environmental
protection. It declares
that
all nations
have
a
right
to development.6
However,
this
right
must
be
exercised
in
such
a
manner
as to "equitably
meet
developmental
and
environmental
needs
of
present
and
future generations".7
That
is,
1
2
3
4
S
6
7
BBus (VTS),
LLB
(Hons) (VTS), Solicitor, Clayton Vtz, Sydney. This is
an
edited
version
of
an
honours
thesis
submitted
in
November
1994. I
would
like to
acknowledge
the
assistance
received
in
the
preparation
of this article from
Mr
Robert Watt, Senior Lecturer, School
of
Law, University of Technology, Sydney.
G
Handl,
"Environmental Protection
and
Development
in
Third
World
Countries:
Common
Destiny -
Common
Responsibility" (1988) 20 NYUJ Int'l L &
Pol
603
at
603.
REshbach, "A Global
Approach
to
the
Protection of
the
Environment: Balancing State
Sovereignty
and
Global Interests" (1990) 4
Temple
Int'l &
Comp
LJ 271
at
271.
R
Hahn
and
KRichards, "The Internationalization
of
Environmental Regulation" (1989)
30
Harv Int'l LJ 421
at
421.
KBlay
and
RPiotrowicz, "Biodiversity
and
Conservation
in
the
Twenty-First Century: A
Critique
of
the
Earth
Summit
1992" (1993) 10
EPLJ
450
at
450.
(1992) 31
ILM
874.
Ibid, Principle
2.
Ibid, Principle
3.
72
Federal
Law
Review
Volume 24
all
development
must
be
sustainable. In
order
to achieve sustainable development,
environmental
protection
must
constitute "an integral
part
of the
development
process
and
cannot
be
considered
in
isolation from it".8 In particular, Principle
11
of
the
Rio
Declaration
provides:
States shall enact effective environmental legislation. Environmental
standards,
management
objectives
and
priorities
should
reflect the environmental
and
developmental contexts to
which
they apply. Standards applied
by
some
countries
may
be
inappropriate
and
of
unwarranted
economic
and
social cost to
other
countries,
in
particular developing countries.
Other
steps to
be
taken
by
nations
in
the
pursuit
of sustainable
development
include:
(1) facilitating public participation
in
environmental decision-making;9
(2)
applying
the "precautionary approach";10
(3)
promoting
the
"polluter
pays
principle";ll
(4)
undertaking
"environmental impact assessment" for
proposed
activities
that
are
"likely to
have
asignificant adverse impact
on
the
environment";12
and
(5)
developing
national
laws
regarding
liability
and
compensation for the victims of
pollution
and
other
environmental damage.
13
The Rio conference also
adopted
Agenda 21:
Programme
of Action
for
Sustainable
Development14
(Agenda
21) to
support
the
Rio
Declaration.
Agenda
21
is "a
programme
of
action for sustainable
development
worldwide".15 It outlines a
wide
range
of
rudimentary
activities
that
governments
should
undertake,
at
both
international
and
national
levels, for
the
purpose
of achieving sustainable development, including
the
formulation of
appropriate
national strategies, plans, policies
and
processes.
16
Agenda
21
covers virtually all aspects of the environment, including the atmosphere,
land
resources generally, forests, biological diversity,
marine
environments,
the
use
of toxic
chemicals
and
the disposal of
hazardous
wastes, highlighting various criteria
which
should
be
used
for balancing environmental
and
developmental
needs
in
each of these
areas of
environmental
concern. Agenda
21
again
emphasises
the
need
for effective
8
9
10
11
12
13
14
15
16
Ibid, Principle
4.
Ibid, Principle 10
Ibid, Principle 15.
That
is,
where
there are threats of serious irreversible damage, lack
of
full scientific certainty shall
not
be
used
as areason for
postponing
cost-effective
measures
to
prevent
environmental degradation.
Ibid, Principle 16.
That
is, polluters
should
bear
the economic cost of the pollution
that
they
cause.
Ibid, Principle 17.
Ibid, Principle 13.
Reproduced
in
UNCED,
Earth
Summit:
Agenda
21:
the
United
Nations
Programme
of Action
from
Rio
(1993).
Other
significant instruments agreed
upon
at
the
Rio conference
were
the
Convention
on
Biological
Diversity (1992)
31
ILM 818, the
Framework
Convention
on
Climate
Change
(1992)
31
ILM 849
and
the Statement of
Principles
for
a
Global
Consensus
on
the
Management,
Conservation
and
Sustainable
Development
of
all
Types
of
Forests
(1992)
31
ILM
881.
UNCED, above n14
at
3.
Ibid
at
15,
par
1.3.
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