Brian Walters AM QC observed that important environmental protection values are enshrined in statutes, regulations, codes of practice and other instruments at all levels of government in Australia. But a law without a practical remedy fails to serve its purpose.
Laws which are only sporadically or unevenly enforced undermine not only the environment, but also the rule of law and our democratic traditions. We must ensure that laws to protect the environment don’t merely espouse values in a general way but have independent and specific enforcement mechanisms to give them teeth. It is not enough for governments to espouse environmental values in legislation without establishing their own mechanisms to enforce those laws.
Brian discusses the practical obstacles to enforcing environmental laws by reference to examples including:
• The enforcement of orange roughy ('sea perch') quotas through a number of complex prosecutions in the late 1990s and early 2000s when over-fishing had resulted in the commercial extinction of orange roughy in Australian waters within 8 years: Brinkman v Dix (No 2) [1999] TasSC 65
• The Hill and Henderson case where two individuals gathered evidence and provided it to DELWP who, despite finding that an area of Victorian rainforest had been subject to “unwarranted destruction”, decided not to take any regulatory action. Soon after, Hill and Henderson found themselves being prosecuted for entering a logging area where they gathered the evidence.
• DPP v Brown [1998] VSC 117
• A series of VicForests cases, Environment East Gippsland v Vicforests (2010) VR 1, [2010] VSC 335; Wildlife of the Central Highlands Inc v VicForests [2020] VSC 10, VicForests v Friends of Leadbeater’s Possum Inc (2021) 389 ALR 552, [2021] FCAFC 66.
• The Tarkine Tracks litigation against the Tasmanian government: Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443 and (No 2) [2016] FCA 168, and on appeal Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Inc (2016) 244 FCR 21, [2016] FCAFC 129 and (No 2) [2016] FCAFC 137 …...more
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