Courts, cattle and constitutions – Australia’s ailing federalism

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.


9 thoughts on “Courts, cattle and constitutions – Australia’s ailing federalism

  1. The overriding political view might be “More Democracy, Not Less”, less indeed we find ourselves, without representation, overruled from distant centres of authority such The Vatican, which, incidentally already has its own schools, hospitals and universities, mainly outside local control.
    For those who doubt, why are we having a Royal Commission into Intitutional Child Abuse if not because certain perpretrators operated beyond the law of the land and denied their victims the protection of the law of the land?
    Federalism? How about national sovreignity as the higher concern?


  2. That’s a big topic, Hamis; I suspect there’ll be a future post or two in that. No doubt you saw the interesting story last week about Italy cutting off credit card facilities to the Vatican due to concerns about money laundering.


  3. Did the judgement raise any issues of the Alpine National Park being adjacent to State boundaries? While the Mountain Cattlemen would maintain their stock are always under control, there are no fences on the high plains.


  4. It seems to eminently foolish in these times of climatic extreme to exclude the local communities, cattlemen or otherwise, from any practical paticipation in the management of threatened landscapes.
    Surely the 60,000 year history of human intervention on this continent belies this leave it to its own devices,it’s a “Wilderness”, nonsense that at least in the Royal National Park south of Sydney led to local species extinctions by wild fires against the protests of the local First Peoples who were agitating for “Cold Burns” to no avail.
    More democracy and fewer authoritarian dictatorships please.


  5. Holden – that’s an interesting idea. No, it wasn’t mentioned in the judgement, but as I say the constitutional issue wasn’t directly raised. If the commonwealth was having real trouble finding a head of power they could try that one.

    Micro & Hamis – obviously we have a disagreement on the merits of the decision. For what it’s worth, and without pretending to be a scientist, it looks to me as if the commonwealth has the better of the case. But I have trouble with the idea that it’s of such national importance that a decision should be made in Canberra; it seems more the sort of thing that really should be decided locally, even if the locals sometimes get it wrong.


  6. I think ‘a special farrago of their resentments’ describes the Mountain Cattlemen’s case. Road-side grazing is being presented as a way to reduce risk of bushfire damage, to and by people in the King Valley, as the background justification for the ‘trial’. This might be good practice, especially in shires with a small rate base and large stretches of roads.

    But, it is an extremely long bow to draw to justify high country grazing. Last big fires in the Alpine National Park burnt for six weeks – while cattle grazing was still going on. They were let burn because nobody lives there, and the risk to firefighters considered not worth it. So how could this have been a controlled experiment?


  7. I am a Victorian resident on a traditional spur approach to the high plains, and the descendent of drovers. I think there is no basis for the Mountain Cattlemen’s claims to represent adequately ‘local opinion’. They are a special interest group who had the ear of an incoming government, who hadn’t expected to win, and promised them the ‘trial’.

    My daily experience of cattle on my property tells me that any claims that cattle reduce fuel or do anything other than damage waterways are nonsense. I have sneaking suspicion the Cattlemen under their rhetorical bluff know this to be the case.

    Were I inclined to get shouty, I’d be jumping up and down about my (State) taxes paying for this legal challenge.


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