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The Devastating Impact of Global Warming on Australia

In early May 2017, global warming takes a surprising and altogether devastating turn for the worse. The permafrost in the Arctic melts. All the carbon dioxide, once preserved in the layers of permafrost, is released. The oceans, as ever, are the great stores of global heat. As ocean temperature rises, the icebergs in the Arctic Circle, and the Antarctic itself, melt away. The big problem comes not from melting ice, but from the fact that water expands as it heats. Warmer oceans mean rising sea levels, and so the sea levels are rising quickly – extremely quickly.

With the melting of the permafrost, the sea levels rise. Storm activity increases. Major beaches in Western Australia and South Australia are eroded in wild storms. In Northern Queensland, half of Cairns is simply lost to the encroaching ocean. The Commonwealth government initially responds by suggesting that the rebuilding process would be good for the economy, and we shouldn’t impact on industry and Australian jobs out of knee jerk reaction to fuzzy science.* Then, after a prominent minister of the Commonwealth government loses his beach side investment property in a particularly wild storm that lashes the northern New South Wales Coast, finally, the Commonwealth government sees that it must consider recent events. Expert reports indicate that all of Australia’s coastline, where most Australians reside, is under serious threat. The majority of Australian population will be displaced in 3 years if urgent action isn’t taken. There is a clear national environmental crisis. All the science on global warming suggests that recent events are due to all the carbon dioxide humans are pumping into the atmosphere. So they must reduce carbon dioxide output.

A raft of emergency legislation having immediate nationwide effect is passed, including the Electricity Suppliers Carbon Output Reduction Act 2017 (Cth).

Section 3 contains the definitions, relevantly including:

‘Commission’ means the Nation’s Grand Mitigation Commission established in Part V of this Act.

‘Electricity suppliers’ includes all State and privately owned electricity industries.

‘Minister’ means the Minister for Environment.

‘National disaster potential contributor’ means anything, or anyone, declared by the Minister in accordance with s25(3)as having the potential to cause or contribute to a National disaster

Section 25(3) states ‘The Minister may declare an Electricity supplier to be a National disaster potential contributor where it produces more than 0.4tCO2e in one financial year’.

You can take as granted that tCO2e is a well-recognised unit of measurement for greenhouse gas emissions.

The company responsible for electricity production in WA is called ‘NiceGuy WA’. NiceGuy WA produces 3tCO2e per year. NiceGuy WA is wholly owned by the Western Australian government.

Once an Electricity supplier is declared a National disaster potential contributor, it becomes subject to the jurisdiction of the Nation’s Grand Mitigation Commission set up under Part V of the Act.

Emergency Legislation to Reduce Carbon Output

Section 106 establishes the Nation’s Grand Mitigation Commission (‘the Commission’).

Section 108 provides that the Minister appoints commissioners to hear and determine disputes for 5 year terms.

Section 120 gives the Commission certain powers:

s120(1) The Commission may make orders that National disaster potential contributors reduce carbon output to a target rate determined by the Commission, within a time determined by the Commission, taking into account

a) Commercial realities

b) Theurgent need to reduce carbon output;

c) Theneeds of directly affected parties; and

d) Theneeds of the nation.

s120(14) Where it is proven that a National disaster potential contributor has not met the reduced carbon to the target rate determined pursuant to s120(1), the National disaster potential contributor may be made liable to punishment. Maximum penalty: fine $5 million.

s120(15) Where the National disaster potential contributor has not met the target rate, the Commission may give the National disaster potential contributor more time, to a maximum of 6 months.

s126(16) Where the National disaster potential contributor fails to meet the target rate, pursuant to s120(15) the National disaster potential contributor is liable to a further fine, to a maximum of $10 million.

Meanwhile, the Western Australian State government is most unhappy. It feels that WA has been unfairly targeted by the Commission, and that New South Wales in particular is being let off the hook. New South Wales also has a large energy production companies, including ‘NiceGal NSW’. NiceGal NSW produces 3.5tCO2e per year.

Thus WA passes the National Carbon Contribution Equitable Distribution Scheme 2017.

In his second reading speech, the Minister for Environment makes reference to the following

Australia is facing threats to its existence as a whole due to climatechange;

climate change is created by carbon dioxide, including carbon dioxideemitted outside of Western Australia;

some high emitters of carbon dioxide are escaping liability under theCommonwealth scheme;

the legislation is a critical exercise of parliamentary power to protect the existence of WA and so the Act shall be given great

Section 2 contains definitions, including:

‘Electricity suppliers’ includes all State and privately owned electricity industries.

‘Western Australia disaster potential contributor’ means anything, or anyone, declared by the Minister in accordance with s18(3)as having the potential to cause or contribute to a National disaster.

Section 5 of the Act creates various offences, including

‘s5(5) It is an offence for any employee of an Electricity supplier or Western Australian disaster potential contributor to promote their company or any of their company’s activities in WA. Penalty: 10 years imprisonment.

Section 18(3) states ‘The Minister may declare any Electricity supplier in Australia or Overseas to be a Western Australian disaster potential contributor where it produces more than 0.4tCO2e in one financial year’.

Section 50 states ‘No provision of this Act shall, either by express words or necessary implication, be repealed or amended except by an absolute majority of the Legislative Assembly and Legislative Council’.

NiceGuy WA is most concerned. Pursuant to the Commonwealth legislation, it has been identified as a National disaster potential contributor and has been given a target of 1.5tCO2e to be achieved in 12 months. It will require major investment in new technologies, and it will involve a major disruption to the Western Australia’s energy supply and significant flow on costs to Western Australian energy consumers. It comes to you for advice. Advise NiceGuy WA.

NiceGal NSW, pursuant to the Western Australian legislation, has been identified as a Western Australian disaster potential contributor. Phillip Chaudeau is an employee of NiceGal NSW. He was given the job of marketing NiceGal NSW’s carbon sequestration technology to NiceGuy WA. Phillip was in Western Australia doing his job (spruiking NiceGal’s carbon sequestration) when he was arrested and charged under s5(5) of the National Carbon Contribution Equitable Distribution Scheme 2017 (WA). Phillip comes to you for advice. Advise Phillip.

The Devastating Impact of Global Warming on Australia

Does the Commonwealth legislation prevail over State Legislation?

The Australian Parliament is of sovereign nature and the power of the government is divided between three branches. This separation of governmental powers is known as the doctrine of separation of powers. The three branches of government are the legislature, the executive and the judiciary. In the landmark case of Marbury v Madison 5 US 137 [1803] that the legislature creates the law, the executive implements the laws and the judiciary interprets the law.

The legislature in Australia is divided between the states and the Commonwealth. There are two Houses, the House of the Senate and the House of Representatives and the combined force of both the Houses frames the laws that are known as Statutes or the Acts of the Parliament. The monarch also plays a significant role in the legislature. In Western Australia, a Legislative Assembly and a Legislative Council shall be responsible for framing laws and maintaining peace and order. The Council shall be conferred upon all the functions and powers of the existing Legislative Council.

The executive is responsible for executing the laws framed by the Parliament and the doctrine of responsible government makes sure that the executive is accountable to the government as was stated in Brown v West [1990] 169 CLR 195. The parliament is considered as the storage of supreme power and all the other bodies are accountable to it. Governor acts on the advice of Ministers as observed in NSW v Bardolph [1934] HCA 74-52 CLR 455 and the ministry is nominated by the party that regulates the majority in the lower house. This system demonstrates the Westminster system.

The judiciary comprises the courts and the judges who are empowered to interpret the laws o statutes framed by the legislature and administer justice to the needy. This branch of the government has been the agents of the monarch and the monarch ensured the the courts are making appropriate decision. In Australia, the High Court is regarded as the final appellate court that deals with all the statutory disputes including the disputes arising out from the Constitution of the Country.

The High Court safeguards the Parliamentary powers ensuring the executive is accountable to the Parliament. Further, it also ensures that the legislature does not exceed its powers as stipulated in the Constitution of the country. However, though the High court is empowered to ensure that the legislature and the executive do not exceed the powers conferred upon them, the Parliament body is empowered to act as a check on the High Courts. In other words, the Parliament has the power to dismiss a judge, even though it does not exercise this right too often.

Emergency Legislation to Reduce Carbon Output

These three branches of government are independent with respect to their respective responsibilities. The new Federal government is granted with specific heads of power under section 51 CC. These powers are similar to the powers conferred upon the state. In case the Commonwealth legislates on any particular subject matter and the legislation is conflicting with the legislation of the state, the legislation of the Commonwealth shall prevail over the legislation of the state. This is a how federalism works in relation to legislative power. The doctrine of the intergovernmental immunity refers to the regulation of one government’s branch of the activity towards to the activity of another government’s branch.

The doctrine states that each level of government that is, Commonwealth and State, is independent of the operation of the legislation of the other level of government. There was a presumption that the legislation does not bind the executive (the Crown) and in order to enable the legislation to bind the Crown, it must establish a clear intention for the same. This is because if legislation does not have the intention to bind the executive (the Crown), it would not give rise to the issues related to the intergovernmental immunities as the issues only arise when the legislature binds the executive. However, this presumption is no more in force in Australia as was established in the case of Bropho v Western Australia [1990] 171 CLR 1.

Under the clause 2 CC, the Constitution refers to the Queen and the Governor and the Governor-General exercise the powers of the Queen. However, the governor and the Governor-General acts on the advice of their respective Minister and all the ministers have distinct agendas due to which all of them differ in their respective actions.  In the case of Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [1979] 145 CLR 107 it is observed that the Commonwealth legislation that binds the Crown in right of the Commonwealth was found that it did not have the intention to bind the Crown (the Executive) in right of the State. The crown is regarded as one and indivisible; hence, where a legislation of Commonwealth intends to bind the Crown in right of the Commonwealth, it must also assure that such legislation have the intention to bind the Crown in right of the state as well.

The doctrine of intergovernmental immunity applied both ways that is, the Commonwealth is empowered to regulate the activities of the state and the state was empowered to regulate the activities of Commonwealth. The Engineer’s case is an exception to the doctrine with respect to the Commonwealth regulation of the activities of the State. The state regulation of the activities of the Commonwealth, however, does not completely remain subject to the doctrine. In the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] 28 CLR 129 (the Engineer’s case), it was held that the Crown is regarded as one and indivisible, hence, the Crown is referred in the right of the States and in the right of the Commonwealth. The Court observed that the Constitution of the Commonwealth mandatorily binds the Crown and the legislations made by the Constitutional authorities are binding upon the individuals of the States. In other words, the Constitution of the Commonwealth binds both the states and its individuals.

Understanding the Australian Government's Separation of Powers

The main contention of the states is that their immunity from the control of the Commonwealth with respect to State trading is justified by the rule stated in the case of D’Emden v Pedder [1904] HCA 1-1 CLR 91. The rule states that when a state given its legislative or executive authority to perform any operation which, if rendered as valid, would control or in interfere with the free exercise of the legislative authority of the commonwealth, such attempt shall be considered as inoperative and invalid.

Therefore, a state law which intends to impose a burden on the Crown in the right of the Commonwealth does not succeeds in doing so for two reasons- if such state law is related to the Commonwealth prerogative, the law is held to be offensive to section 61 CC of Commonwealth Constitution. The second reason is that if such state law acts as a hindrance to the enjoyment of a statutory power, it shall be deemed as inconsistent with the power conferred by the legislation of the Commonwealth and shall be rendered as invalid under section 109 CC.

The reasoning stated in the case is that when the state is vested with power, then that state is entitled to exercise such power independently, similarly to the national government except such power is subject to the operation of section 109.

As discussed earlier that, it is understood that the legislation of the Commonwealth can bind the Crown in the right of the Commonwealth but cannot bind the Crown in the right of the State. The Crown is considered as one and indivisible according to which every level of government was immune from the operation of each other. However, the Engineer’s case being an exception to the doctrine stated that the Commonwealth could bind the Crown as well as the subjects of the states.

From the perspective of the State with respect to their binding effect, it can be observed that there are different principles because in effect, the states are inferior to the Commonwealth. This is because the Commonwealth exercises supreme and exclusive power and control over more areas than the state under section 109 of the Constitution of the Commonwealth. It is therefore, established that the Commonwealth is superior to the States and exercise greater control than the States. This rationale behind the fact that the Commonwealth has supremacy over the States is that the power of the States is plenary, especially, when the Commonwealth does not exercise its combined supremacy under section 51 and section 109. The fact is evident from the plenary nature of the words such as ‘good government and peace order’ as used in the Constitution of the State. In the case of Pirrie v McFarlane [1925] 36 CLR 170, An RAF member drove in Victoria without a valid driving license and was charged under the Motor Car Act 1915 (Vic). He stated in his defense that he was following the operation of a relevant Commonwealth Defense and Air Force Acts that overrules the Victorian Motor Car Act, hence, the RAF member is permitted to drive without any valid license.

How Federalism Works in Relation to Legislative Power

However, the High Court dismissed the argument but the defendant stated that with respect to Section 109 CC, there was consistency, as the Commonwealth Legislation did not prohibit any RAF members from obeying to the civil law.  Nevertheless, based on the reasoning given in the Engineer’s case, the High Court stated that when a power is conferred upon the state, the State becomes entitled to be independent while exercising such power similar to the National Government, provided such power is not subjected to section 109. Therefore, it is evident from the above-mentioned cases that the powers vested in the State are plenary unless they are inconsistent or such powers are related to any matter over which the Commonwealth exercises exclusive control and power.

The ordinary rule of statutory interpretation entails relationship between the following three essential interconnected elements:

  • The doctrine of Parliamentary Sovereignty;
  • The capability of the parliament to bind its successor;
  • The doctrine of Parliamentary supremacy

If further requirements are added to an existing piece of legislation, it becomes more difficult to change or amend the legislation. It affects the capability of the successor members of the Parliament to amend the legislation as they are unable to follow the standard democratic procedure and are compelled to act in compliance with the restrictive procedures. Consequently, the majority are unable to govern in their way, thus, amounting to an impediment to the concept of democracy, which is all about the majority rules.

The majority rules signifies the doctrine of Parliamentary Sovereignty, which implies that the Parliament is empowered to do anything that it wishes to do, owing to the fact that it represents the majority of the electors, but at the same time, it must enact laws for the welfare of the subjects of the country. Although the state parliaments have plenary power or sovereignty but there are certain matters over which the state parliaments are not empowered to exercise its exclusive control and power.

Therefore, in order to deal with the concept that the State Parliament has plenary power but are subject to certain limitations, the term Parliamentary Sovereignty is usually replaced with the term Parliamentary Supremacy.

Section 2 of the Constitution Act 1889 [WA] states that the existing Legislative Council shall be replaced by a Legislative Assembly and a legislative Council. Her majesty is empowered to make laws for good government, peace and order for the Colony of Western Australia and its Dependencies, with and on the consent and advice of the Assembly and Council. The Assembly and the Council are empowered with all the functions of the existing Legislative Council.

In Building Construction Employees and Builders’ Laborers Federation of New South Wales v Minister for Industrial Relations [1986] 7 NSWLR 372 [the BLF case], the Chief Justice observed the State parliaments are not supreme, as per section 5 of the Constitution Act 1902 (NSW). The section stipulates that the state legislature shall be empowered to make laws for the welfare, good and good government of the New South Wales; however, such laws shall be subjected to the provisions of the Commonwealth of Australia Constitution Act. The issue in the BLF case was whether the provision under section 5 of the Constitution Act NSW 1902 conferred any plenary or sovereign power on the State legislature. His Honor held that the legislative provision did not confer any plenary or sovereign power on the state Parliament, rather the plenary powers conferred on the state is subject to certain limitations.

The sovereign powers of the State legislature are limited to the requirement of the welfare, peace and good government of New South Wales. The restriction is extensive in nature and laws that are contrary to peace, order, welfare and good government of the Parliamentary democracy shall be repealed and rendered as unconstitutional. However, in Union Steamship v King [1988] 166 CLR 1, the court reversed the decision held in the BRF’s case and stated that the power to make laws for the welfare, peace, order and good government of any territory can be regarded as the widest law-making powers that is appropriate and sufficient enough to be described as sovereign powers. The court further held that the power to frame laws for the peace and order, welfare and good government of any territory is as plenary and sufficient as the power conferred on and exercised by the Imperial Parliament.

The words’ for the welfare, peace and order and a good government cannot be described as words that restricts the power conferred upon the State legislature. These words does not confer upon the state courts any jurisdiction to repeal any law merely on the ground that such legislation fails to secure peace and order and a good government of a territory.

However, as per the initial proposition that whether section 2 of the Constitution Act [1889] [WA] confers any plenary power on the State legislature, it can be observed that the section does confer plenary power on the State Parliament, however, such powers are subjected to limitations. Nevertheless, the words ‘welfare, peace and order and a good government’ does not define the limitation so imposed on the State legislature.

In the given scenario, with the increase in the sea level, there is an increase in the storm activities, which are affecting most of the beaches of Australia. The Commonwealth government introduced a raft of emergency legislation that would have the effect of immediate implementation all across the country of Australia including the Electricity Suppliers Carbon Output Reduction Act 2017 [Cth].

According to section 25[3] of the Act, a national disaster potential contributor refers to anyone or anything that, in the opinion of the Minister, contributes or has the potential to contribute or cause a National disaster. Further, the Minister is empowered to declare an Electricity supplier to be a national disaster potential contributor if such thing or person produces 0.4tCO2e in a single financial year.

In the given scenario, a company named, NiceGuy, has been declared accountable for the production of electricity in Western Australia. The company is said to produce 3tCO2e per year and is entirely owned by the Western Australian government. The WA passes the National Carbon Contribution Equitable Distribution Scheme 2017 according to which the Minister may proclaim any Electricity supplier or overseas to be a Western Australian disaster potential contributor if such person or thing produces more than 0.4tCO2e in one financial year.

Here, the WA government was discontented with the fact that the Nation’s Commission has only targeted the WA and has overlooked the NSW owned energy production companies like NiceGal NSW, which produces 3.5tCO2e every year.

Now, according to the doctrine of intergovernmental community, each level of government that is, Commonwealth and State, is independent of the operation of the legislation of the other level of government. The doctrine of intergovernmental immunity applied both ways that is, the Commonwealth is empowered to regulate the activities of the state and the state was empowered to regulate the activities of Commonwealth as was observed in the case of Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [1979. However, there is an exception to this doctrine that was established in the Engineer’s case, which states that the Commonwealth can bind the Crown as well as the subjects of the states.

Further, the State with respect to their binding effect is inferior to the Commonwealth. This is because the Commonwealth exercises supreme and exclusive power and control over more areas than the state under section 109 of the Constitution of the Commonwealth. Therefore, established the Commonwealth is superior to the States and exercise greater control than the States.

As discussed earlier in Pirrie v McFarlane [1925] when a power is vested in the state, the State becomes entitled to be independent while exercising such power just like the National Government, provided such power is not subjected to section 109. Therefore, it is evident that the powers vested in the State are plenary unless they are inconsistent or such powers are related to any matter over which the Commonwealth exercises exclusive control and power. Furthermore, the doctrine of Parliamentary supremacy implies that the Parliament is empowered to do anything  it wishes to do, as it represents the majority of the electors, but at the same time, it enact laws for the welfare of the subjects of the country.

In the given case, the Minister of Environment asserts that the existence of the country is threatened by a change in the climate, which is the direct impact of the excessive production of carbon dioxide, including emission outside the Western Australia.  The Legislation is considered as a critical exercise of the powers conferred upon the parliament; hence, the statute must be implemented immediately.

On the other hand, the legislation enacted by the WA did not have the intention to reduce the excessive emission of carbon dioxide. The legislation was passed by the state legislature as it was discontented about the fact that the national commission has declared NiceGuy as the disaster potential contributor and overlooked the NSW NiceGal energy production company. As discussed above, Section 2 of the Constitution Act 1889 [WA] states that the section confers plenary power on the State Parliament, however, such powers are subjected to limitations.

Further, as per section 5 of the Constitution Act 1902 (NSW) the state legislature shall be empowered to make laws for the welfare, good and good government of the New South Wales; however, such laws shall be subjected to the provisions of the Commonwealth of Australia Constitution Act. In the BLF’s case, it was held that the sovereign powers of the State legislature are limited to the requirement of the welfare, peace and good government of the territory. The restriction is extensive in nature and laws that are inconsistent with the intention to serve peace, order, welfare and good government of the Parliamentary democracy shall be repealed and considered as unconstitutional.

In this given case, although section 2 of the Constitution Act [WA] confers plenary powers on the state legislature to act independently of their operation, but such powers are subjected to such restrictions. If the laws passed by the state legislature does not serve the purpose of securing peace and order and a good government in a territory, such laws shall be held unconstitutional. Furthermore, according to section 2 of the WA Constitution Act, Her majesty is empowered to make laws for good government, peace and order for the Colony of Western Australia and its Dependencies, with the consent of the Assembly and Council.

Conclusion 

As discussed above that section 2 of the Constitution Act 1889, [WA], the Commonwealth has the conferred plenary powers on the state legislature to pass laws provided such laws aim at securing and maintaining peace, order and good government in a territory. Iun this case, the legislation enacted by the WA government did not aim at reducing the carbon emission for the welfare of the citizens of the country; instead, it was enacted to bring out the carbon energy production company NiceGal NSW in the limelight of the Commonwealth Commission as another significant potential carbon contributor.

On the other hand, the legislation passed by the Commonwealth legislation purported to reduce the excessive emission of carbon dioxide and safeguard the Australian citizens who are residing along the Australian coastline, whose lives are threatened by the excessive rise in the storm activities, resulting from increased global warming. However, as stated in the Union Steamship v King [1988] that the power to frame laws for the peace and good government of any territory is as plenary and sufficient as the power conferred on the Imperial Parliament. The words ‘welfare, peace and a good government does not confer upon the state courts any jurisdiction to repeal any law merely on the ground that such legislation fails to secure peace and order and a good government of a territory.

Therefore, the NiceGuy energy production companies shall be subject to the provisions stipulated by the legislation passed by the Commonwealth Government including the Electricity Suppliers Carbon Output Reduction Act 2017 (Cth). According to section 120 (1) of the Act, the commission may pass orders against the NiceGuy Company in NSW, to reduce the carbon production to 1.5tCO2e in a year. Phillip of NiceGal Company in NSW shall be held liable under section 18(3) as the company is situated overseas and have been identified as National disaster Potential contributor as its carbon output is more than 0.4tCO2e per year.  He shall further be held liable to 10 years of imprisonment under section 5 of the WA legislation for promoting company’s carbon sequestration technology.

Section 50 of the WA legislation states that the provisions of the legislature shall be subject to amendment provided such amendment is made either expressly or impliedly by an absolute majority of the legislative Council and legislative Assembly. Therefore, as held in the BLF’s case, the laws made by the state legislature purporting the welfare, good and good government of the New South Wales; shall be subjected to the provisions of the Commonwealth of Australia Constitution Act.  This is because the powers vested in the State are plenary unless they are inconsistent or are related to any matter over which the Commonwealth exercises exclusive control and power as was held in the Engineer’s case.

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