Is there power in the Australian constitution to make federal laws for water quality?
Date
2000
Authors
Moeller, A.L.
McKay, J.M.
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Journal article
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Environmental and Planning Law Journal, 2000; 17(4):294-307
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Abstract
A number of powers listed in the Australian Constitution permit the Commonwealth to impose legislation in the subject field of national water quality. This article examines the three most important powers: (a) s 51(i), the commerce and trade power, (b) s 51(xx), the corporations power and (c) s 96, financial assistance to the States. Environmental legislation in America relies primarily on the Commerce Clause which is similar to s 51 (i), and United States cases are presented as an analogy for possible interpretations of s 51 (i). Section 51 (i) is the most important of the three sections above, and has the ability to control imports and exports. This clause allows for the control of imported materials and machinery used in water technology and industry, and foreign capital required for business finance. However, the power is severely curtailed because the interstate trade portion of the clause is restricted to barter exchange, which has been judged not to include manufacturing and production. Hence legislation aimed at water pollution abatement associated with production by-products could not use the trade and commerce power. It is also limited in relation to newly corporatised water authorities as it does not include intrastate trade. The corporations power, however has the potential to endorse a large breadth of water quality and environmental regulations. This power is sufficient to regulate the major water suppliers in Australia and probably also in the light of recent High Court decisions, water pollution that is produced as a result of corporate activities. Lastly, s 96, allowing the Commonwealth to tie conditions to financial grants, has almost unlimited application, and could be used to host any variety of legislative packages designed to protect water quality.
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