Australia's federal structure and global environmental protection: HSC Legal Studies

What this dot point is asking

The last of the responses listed in the syllabus is Australia's federal structure, and the syllabus asks you to explain the effects of Australia's federal structure in responding to global environmental protection. That means showing how the Constitution divides power between the Commonwealth and the states, how that division helps and hinders Australia in meeting its international environmental obligations, and how the three arms of government (Parliament, the executive and the courts) each play a part.

This was the whole of 2024 HSC Question 26(a). NESA's feedback warned against writing only about the external affairs power: better responses dealt with the division of powers, the external affairs power, the separation of powers and the role of courts, and linked them to specific global problems such as global warming, ozone depletion and biodiversity.

The answer

The division of powers

Australia's Constitution (1901) was written before environmental protection was a public concern, and it contains no express environment power. Section 51 lists the Commonwealth's powers; everything else is a residual power of the states. As a result, the states have primary responsibility for land use and planning, pollution control, forests, water, mining and most national parks. Section 109 provides that where a valid Commonwealth law is inconsistent with a state law, the Commonwealth law prevails.

The Commonwealth has built its environmental role on other heads of power:

The external affairs power and the High Court

The decisive development came in Commonwealth v Tasmania (1983) 158 CLR 1, the Tasmanian Dam case. Tasmania planned to dam the Franklin River in the Tasmanian Wilderness, which had been inscribed on the World Heritage List in 1982. The Commonwealth passed the World Heritage Properties Conservation Act 1983 (Cth) to stop the dam. By 4 votes to 3 the High Court held that the external affairs power allowed the Commonwealth to legislate to implement Australia's obligations under the World Heritage Convention, even over land and matters traditionally controlled by a state. The dam was not built.

The decision followed Koowarta v Bjelke-Petersen (1982), which upheld the Racial Discrimination Act 1975 (Cth) as an implementation of a treaty, and was confirmed in Richardson v Forestry Commission (1988) (interim protection of Tasmanian forests while their World Heritage values were assessed) and Queensland v Commonwealth (1989) (the Wet Tropics World Heritage listing). The practical result is that every environmental treaty Australia ratifies becomes a potential source of Commonwealth legislative power, which links international instruments directly to domestic law.

Commonwealth law implementing international obligations

• Ozone depletion. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) implements the Montreal Protocol by controlling the import, manufacture and use of ozone-depleting substances and synthetic greenhouse gases. It is an example of the federal structure working smoothly, because the Commonwealth could regulate imports and trade directly.
• Biodiversity and heritage. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) implements the World Heritage Convention, the Ramsar Convention, the Convention on Biological Diversity and migratory species agreements. An action likely to have a significant impact on one of nine matters of national environmental significance (World Heritage properties, National Heritage places, Ramsar wetlands, threatened species and ecological communities, migratory species, Commonwealth marine areas, the Great Barrier Reef Marine Park, nuclear actions, and water resources affected by coal seam gas and large coal mining) needs the Environment Minister's approval. Section 487 gives environmental groups standing to seek judicial review.
• Climate change. The Climate Change Act 2022 (Cth) legislates targets of 43 per cent below 2005 levels by 2030 and net zero by 2050, requires an annual climate change statement to Parliament, and gives the Climate Change Authority a role in advising on targets. On its advice, the Government set a 2035 target of 62 to 70 per cent below 2005 levels on 18 September 2025 and communicated it as Australia's Paris NDC. The Safeguard Mechanism (strengthened in 2023) requires Australia's largest industrial emitters to keep emissions under baselines that decline by 4.9 per cent a year to 2030.

Reform of the EPBC Act. The independent review by Professor Graeme Samuel (final report released January 2021) found the Act "ineffective", that the environment was in decline, and that decisions were slow, duplicative and not trusted. After an earlier reform package stalled in the Senate in 2024 and 2025, Parliament passed the Environment Protection Reform Act 2025 (Cth) and related Acts on 28 November 2025 (royal assent 1 December 2025) after a deal between the Government and the Greens. The package:

• provides for legally binding National Environmental Standards (framework in force from 2 December 2025; the first four, including one for matters of national environmental significance, were made on 19 August 2026);
• established the National Environmental Protection Agency and a statutory Head of Environment Information Australia from 1 July 2026;
• raises maximum civil penalties for corporations to the greatest of 50,000 penalty units, three times the benefit, or 10 per cent of annual turnover capped at 2.5 million penalty units ($910 million at the penalty unit value in force from 1 July 2026); these penalties commenced on 24 August 2026;
• commences in stages: the remaining changes, including new approval tests, streamlined assessment and emissions disclosure in assessments, start by proclamation or automatically on 1 December 2026 at the latest;
• ends the exemption for Regional Forest Agreement logging from 1 July 2027;
• does not include a "climate trigger" requiring projects to be assessed for their climate impact.

Cooperative federalism

Because power is divided, many responses depend on the Commonwealth and states agreeing:

• The Intergovernmental Agreement on the Environment (1992) set out each level's responsibilities and adopted ESD principles.
• The National Environment Protection Council makes national environment protection measures (for example, ambient air quality) that each state implements.
• Murray-Darling Basin. After the Millennium Drought, basin states referred powers so that the Water Act 2007 (Cth) could establish the Murray-Darling Basin Authority and the Basin Plan (2012), which implements Ramsar obligations for basin wetlands.
• The Great Barrier Reef. The Commonwealth manages the Marine Park under the Great Barrier Reef Marine Park Act 1975 (Cth); Queensland controls the catchments whose run-off affects water quality. The joint Reef 2050 Long-Term Sustainability Plan is the main tool for meeting World Heritage obligations. In July 2026 the World Heritage Committee again decided not to place the Reef on the "in danger" list.
• Regional Forest Agreements between the Commonwealth and states have exempted accredited logging from the EPBC Act since the 1990s; the 2025 reforms end that exemption.

State law and targets

The states hold most of the day-to-day regulatory power. In NSW, the Environmental Planning and Assessment Act 1979 governs development approval, the Protection of the Environment Operations Act 1997 controls pollution through licences issued by the NSW Environment Protection Authority, and the Biodiversity Conservation Act 2016 protects threatened species. The Climate Change (Net Zero Future) Act 2023 (NSW) legislates targets of 50 per cent by 2030, 70 per cent by 2035 and net zero by 2050, with an independent Net Zero Commission. Victoria (Climate Change Act 2017) and other states have their own targets, and states have led on renewable energy, which shows the innovation a federal system allows.

The separation of powers and the role of courts

• Parliament makes the law (the EPBC Act, the Climate Change Act).
• The executive applies it: the Environment Minister decides whether projects are approved, and agencies (the new NEPA, the NSW EPA) enforce the law.
• The courts review whether decisions were lawfully made. Under the EPBC Act, federal courts review legality, not merits: they ask whether the Minister followed the Act, not whether the decision was good for the environment.

The courts' role has been significant but limited in climate cases:

• Gray v Minister for Planning [2006] NSWLEC 720 required the Anvil Hill coal mine assessment to consider emissions from burning the coal.
• Gloucester Resources v Minister for Planning [2019] NSWLEC 7 (Rocky Hill): Preston CJ upheld the refusal of an open-cut coal mine, finding its greenhouse gas emissions (and its visual and social impacts) weighed against approval: "wrong place, wrong time".
• Bushfire Survivors for Climate Action v EPA [2021] NSWLEC 92 held the NSW EPA had a statutory duty to develop policies to protect the environment from climate change.
• Waratah Coal v Youth Verdict (Queensland Land Court, November 2022) recommended refusing Clive Palmer's Galilee Basin coal project, partly because of climate impacts on human rights protected by the Human Rights Act 2019 (Qld).
• Minister for the Environment v Sharma [2022] FCAFC 35 overturned a finding that the Minister owed children a duty of care, holding climate policy is for Parliament and the executive.
• Environment Council of Central Queensland v Minister for the Environment and Water [2024] FCAFC 56 (Living Wonders): the Minister was not required to treat the climate harm from burning the coal as an impact on matters of national environmental significance when considering two NSW coal mine expansions. The High Court refused special leave in August 2024.
• Pabai Pabai v Commonwealth (No 2) [2025] FCA 796 (15 July 2025): Wigney J found the Commonwealth owed Torres Strait Islanders no duty of care to protect them from climate change, because the claims concerned high-level government policy. The applicants appealed to the Full Federal Court; as at September 2026 the appeal had not been decided, so check the outcome before the exam.

The pattern is that state specialist courts applying statutory duties (the NSW Land and Environment Court) have been more willing to act than federal courts asked to create common law duties or to read climate into the EPBC Act.

The effects of the federal structure

Judgement. Australia's federal structure has been essential to its response to global environmental protection because the external affairs power lets the Commonwealth give international instruments domestic force, as it did for the World Heritage Convention, the Montreal Protocol and the Paris Agreement. But it has also made the response fragmented and slow: responsibility is divided, states have strong economic interests in resource extraction, and the Commonwealth has been reluctant to use its full power or to make climate a trigger for assessment. The 2025 EPBC reforms, the new National Environmental Protection Agency and national standards are the most significant attempt in 25 years to fix these problems; their effectiveness will only be clear after they fully commence by December 2026.

In one sentence

Australia's federal structure lets the Commonwealth give environmental treaties national force through the external affairs power, as the Tasmanian Dam case, the EPBC Act and the Climate Change Act show, but divided power, state resource interests and courts that leave climate policy to Parliament make the response fragmented, which the 2025 EPBC reforms are trying to fix.

Try this

Q1. Outline the significance of the external affairs power for environmental protection. (3 marks)

• What the marker wants. Section 51(xxix), the Tasmanian Dam case and the implementation of treaties through the EPBC Act.

Q2. Explain ONE way cooperative federalism has been used to protect the environment. (4 marks)

• What the marker wants. For example the Murray-Darling Basin (referral of powers, Water Act 2007, Basin Plan) or Reef 2050, with a strength and a limit.

Q3. Evaluate the role of the courts in responding to climate change in Australia. (8 marks)

• What the marker wants. Cases at state and federal level (Rocky Hill, Bushfire Survivors, Sharma, Living Wonders, Pabai), the legality versus merits distinction, and a judgement.