implemented over the years have been to the detriment of land stability across the
country (e.g. land settlement policies, financial incentives for land development).
38
The principle under the Constitution is that legislative powers are given to the
Commonwealth only for certain purposes. Powers are typically conferred to legislate
“with respect to”, or about certain matters and not in achieving certain purposes
(e.g. taxation-related policy was used in the past to break up larger holdings, promote
closer settlement, to foster the settlement and development of rural land). When the
Commonwealth enacts a law, it brings that law within the scope of one or more heads
of power. For example, where the Commonwealth has the power to legislate with
respect to trading corporations, it may directly control the activities of such corporations, including their land degrading activities. The important fact is that the
Commonwealth has considerable power to deal with rural and land use matters,
although they are not expressly mentioned in the Constitution.
39
In Australia, whenever the role of the Commonwealth in the environment arises,
the debate usually quickly turns to which level of government can better perform the
tasks of devising and implementing the various aspects of environmental responsibility. There have been a number of situations where constitutional powers have
been applied to “intervene” in a State environmental dispute, indicating that the
Commonwealth has significant power to act in the interests of a national environmental problem as a whole. However, one of the main determinants of legislative
involvement is the definition of “environment”.
40 Australia has responded by introducing numerous specialist environmental laws at the Commonwealth and State
level in response to the global concerns of biodiversity, desertification, threatened
species protection, rangeland ecology, and more recently, climate change.
41
4.3 Role of the Commonwealth
Because of the points mentioned above, the Commonwealth has not taken direct,
formal legislative action for soil conservation, as it has always considered that the
combined action of the states in this area has been “in the national interest”—with
the emphasis of the state laws being placed on the nature, extent and seeking ways to
deal with land degradation and soil conservation adequately. By choice, the
38 Australia (1984, 1989); Bradsen (1988), pp. 143–149.
39 Bradsen (1988), p. 133.
40 Section 528 of the Commonwealth Environment Protection and Biodiversity Conservation Act
1999 defines “environment as including (a) ecosystems and their constituent parts, including people
and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of
locations, places and areas; and (d) heritage values of places; and (e) the social, economic and
cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
41 Hannam and Boer (2004); Commonwealth Environment Protection and Biodiversity Conservation Act 1999, Carbon Credits (Carbon Farming Initiative) Act 2011, Climate Change Authority
Act 2011.
Soil Legislation in Australia
191
country (e.g. land settlement policies, financial incentives for land development).
38
The principle under the Constitution is that legislative powers are given to the
Commonwealth only for certain purposes. Powers are typically conferred to legislate
“with respect to”, or about certain matters and not in achieving certain purposes
(e.g. taxation-related policy was used in the past to break up larger holdings, promote
closer settlement, to foster the settlement and development of rural land). When the
Commonwealth enacts a law, it brings that law within the scope of one or more heads
of power. For example, where the Commonwealth has the power to legislate with
respect to trading corporations, it may directly control the activities of such corporations, including their land degrading activities. The important fact is that the
Commonwealth has considerable power to deal with rural and land use matters,
although they are not expressly mentioned in the Constitution.
39
In Australia, whenever the role of the Commonwealth in the environment arises,
the debate usually quickly turns to which level of government can better perform the
tasks of devising and implementing the various aspects of environmental responsibility. There have been a number of situations where constitutional powers have
been applied to “intervene” in a State environmental dispute, indicating that the
Commonwealth has significant power to act in the interests of a national environmental problem as a whole. However, one of the main determinants of legislative
involvement is the definition of “environment”.
40 Australia has responded by introducing numerous specialist environmental laws at the Commonwealth and State
level in response to the global concerns of biodiversity, desertification, threatened
species protection, rangeland ecology, and more recently, climate change.
41
4.3 Role of the Commonwealth
Because of the points mentioned above, the Commonwealth has not taken direct,
formal legislative action for soil conservation, as it has always considered that the
combined action of the states in this area has been “in the national interest”—with
the emphasis of the state laws being placed on the nature, extent and seeking ways to
deal with land degradation and soil conservation adequately. By choice, the
38 Australia (1984, 1989); Bradsen (1988), pp. 143–149.
39 Bradsen (1988), p. 133.
40 Section 528 of the Commonwealth Environment Protection and Biodiversity Conservation Act
1999 defines “environment as including (a) ecosystems and their constituent parts, including people
and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of
locations, places and areas; and (d) heritage values of places; and (e) the social, economic and
cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
41 Hannam and Boer (2004); Commonwealth Environment Protection and Biodiversity Conservation Act 1999, Carbon Credits (Carbon Farming Initiative) Act 2011, Climate Change Authority
Act 2011.
Soil Legislation in Australia
191