The next generation of Environmental laws

Environmental law is struggling to meet the immense challenges that confront our generation. As with other areas of social life and public affairs, law periodically must remake itself in order to meet historic challenges and to be equal to tasks that society invests in it. For environmental law, this is no different.

For instance, we inherited from the English common law important rules and doctrines intended to protect us from environmental harm and damage, such as the law of nuisance, and there were early colonial town planning statutes enacted to regulate polluting activities or pest animals or to protect native wildlife from hunting. Over time, other environmental measures passed the Parliament, such as laws for national parks, soil conservation and protection of waters against pollution, were added to the statute book. Eventually, these measures proved inadequate to the task of stopping environmental harm in a rapidly advancing industrial society. Extinctions of native species proceeded apace. Natural areas were threatened and destroyed in the face of industrial and urban development. Waterways and air faced more and more pollution.

From the 1970s to the 2000s, through public agitation, there was a steady response to these challenges in the form of environmental laws, new institutions and landmark court cases. Victorian passed the Environment Protection Act and the Land Conservation Act in 1970. The High Court brought down the Tasmanian Dams case in 1983. Threatened species laws across Australia were passed in the 1980s and 1990s. Broad-scale land clearing was progressively phased out in most States from 1989 (Victoria) onwards. National environmental law in the form of the Environment Protection and Biodiversity Conservation Act was passed in 1999 and, with a strong environmental focus, the Commonwealth Water Act and the Basin Plan become law in the late 2000s. Climate laws were enacted federally in 2011 and became a headline casualty of the Abbott Government’s assault in the environment with their 2014 repeal. A growing momentum of environmental governance emerged from international law and agreements, such as from the Rio Earth Summit of 1992.

These laws were important achievements. But the challenges keep building up and evolving – and in any case, so many of these ‘second generation’ of environmental laws were constrained by political deal-making or too hamstrung in their operation to be effective.

We need new environmental laws for instance because:

In all of these cases, we have demonstrated what is needed to reform our environmental laws, strengthen them, make them fit for purposes – that is, actually achieving environmental protection and building a healthy and safe environment.

This is a project still at the heart of our work. A number of our key, current projects are aimed precisely at this exciting and ambitious task of building the next general of environmental laws, capable of meeting and addressing current environmental crises:

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