I mentioned last week a few areas where Australia is out of step with world trends. We could probably now add federalism to the list: while other countries are rediscovering the value of devolving power to smaller units, the Great and Good in Australia keep telling us that states are an anachronism and all power should be concentrated in Canberra.

So it was interesting on Friday to read the decision in which the Federal Court rejected a challenge by the Victorian government to what appeared, on its face, a remarkable overreach of commonwealth power – namely last year’s decision to block the reintroduction (on a “trial basis”) of cattle grazing in Victoria’s high country.

Unfortunately the challenge did not directly raise the constitutional issue. Three of the four grounds raised fairly narrow issues of statutory interpretation; without having studied them in detail, it looks to me as if Judge Kenny was probably right in finding in favor of the commonwealth on all three.

It was the fourth ground (actually second in the application, but dealt with last by the judge) that raised, if only obliquely, the question of the constitutional limits of federal power.

The Environment Protection and Biodiversity Conservation Act 1999, under which the decision to block the trial was made, relies on a number of limbs to try to bring itself within the scope of commonwealth power, but the key one for this case was protecting “the National Heritage values of a National Heritage place [of which the high country is one] in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.” (s. 15B(5)).

Protecting biodiversity in terms of the Convention would bring the matter within the external affairs power under the precedent of the Tasmanian Dam Case. But Victoria claimed that because the federal minister had recited other reasons in addition to biodiversity for the ban on grazing, it exceeded the powers given in the Act.

Judge Kenny’s response to this was twofold: firstly, that the points about biodiversity were clearly enough to sustain the decision on their own, and that the fact the minister had mentioned other considerations as well was immaterial. Secondly, that the restriction to matters covered by the Biodiversity Convention didn’t limit the minister’s powers of approval but was only relevant when construing the penal provisions in the Act – that is, it would only become an issue if the Victorian government (or the cattlefolk) defied the ban and were prosecuted for it.

I’m not so sure about this second argument; it does seem to leave the minister’s powers vulnerable to constitutional attack. But as long as the first argument is accepted there’s not much point in testing it by a further appeal.

The commonwealth also argued that even if the decision was based on matters other than biodiversity, this still wouldn’t take it outside the scope of the Biodiversity Convention. Given the rest of her findings it wasn’t strictly necessary for the judge to consider this argument, but she made it clear that she thought it had very little merit. The fact that, for example, aesthetic and recreational values were mentioned in the Convention did not mean that the Act could enforce a decision to protect them. And (although she didn’t say so explicitly) if the Act were interpreted that way, then to that extent it would presumably be unconstitutional.

So if you accept that Judge Kenny’s statutory interpretation is reasonable, and if you think the Tasmanian Dam Case was correctly decided, then the mountain cattlefolk are left without a leg to stand on. But federalism, while wounded, may still live to fight another day.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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