The Australian legal system

5.01The Commonwealth of Australia is a federal State with three levels of government comprising a national government, the governments of six states and two territories, and local government. The federal government, the Commonwealth, has no direct constitutional power to legislate with respect to environmental matters. Nevertheless, several heads of power contained in section 51 of the Commonwealth Constitution provide a basis for wide-ranging climate change legislation. These include the corporations power and the external affairs power, the latter of which enables the Commonwealth Parliament to pass laws implementing treaties to which Australia is a Party. As Australia is a Party to the United Nations Framework Convention on Climate Change (‘FCCC’) and its Kyoto Protocol, the Commonwealth may legislate to meet its obligations under these agreements.

5.02The states and territories also have the constitutional capacity to pass laws with respect to climate change and have done so as the Commonwealth has been unwilling or unable to regulate greenhouse gas (‘GHG’) emissions. However, to the extent that state laws are inconsistent with federal legislation addressing the same subject matter they are invalid. The Commonwealth’s efforts to establish a comprehensive emissions trading scheme (‘ETS’) were thwarted in 2010 when the upper house of the Commonwealth Parliament, the Senate, voted against a package of eleven Bills that would have established the Carbon Pollution Reduction Scheme (‘CPRS’).