¹ By virtue of the Maastricht Treaty on European Union (TEU), signed in Maastricht on 7 February 1992, “the High Contracting Parties established among themselves a European Union” founded on the European Communities — Title I, Article A — and supplemented by the policies and forms of co-operation established by the TEU. With the entry into force of the TEU on 1 November 1993, the term EU has replaced in common usage the term EC when referring to: the Member States comprising the EU, their combined population, GNP, market, population, etc; the EU's representation in international affairs; and the EU as a negotiating partner. When discussing events prior to 1 November 1993 the author will continue to use the terms EEC or EC. Reference will be made throughout this article to the term EC or European Community if the context has to do with specific legal competencies coming under the Treaties establishing the Communities.

² Bowett states that the ability of EC institutions, specifically the Commission, to take decisions binding on States without the intervention of the States is clearly a hall-mark of a supra-national authority: D W Bowett, The Law of International Institutions (4th ed 1982) at 211.

³ See M Auster, “The Harmonisation of Environmental Law: A European-Australian Comparison” (1988) 5 EPLJ 276.

⁴ In the EU context, the Single European Act 1986 (SEA) introduced a series of new articles on the environment which for the first time mandated Community action in this area. In the Australian context, the Commonwealth has relied on various constitutional powers in s 51 to enact environmental legislation which the High Court of Australia has upheld; see belown29.

⁵ The TEU replaces the term “European Economic Community” with the term “European Community” - Article G, Title II. The EC Treaty has been amended in accordance with Article G of Title II. This article will indicate the EC Treaty provisions which have been inserted or amended by the TEU.

⁶ For example, some aspects of economic policy such as Customs duties and freedom of movement of goods, capital and persons.

⁷ The supremacy of Community law over conflicting national law was established in Costa v ENEL [1964] ECR 585.

⁸ InAmministrazione delle Finanze dello Stato v Simmental S.p.A. [1978) ECR 629, the ECJ stated at 645: “A national court which is called upon within the limits of its jurisdiction to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means”.

⁹ Commonwealth laws “covering the field” operate directly within the States. They override corresponding State legislation to the extent of any inconsistency. The Ozone Protection Act 1989 (Cth) is an example of such an Act.

¹⁰ The High Court of Australia has traditionally sought to maintain a high degree of legalism in its decision-making, preferring the literal approach to judicial activism. For example, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, especially at 151, 152 and 160 per Isaacs J.

¹¹ Especially insofar as the implication of guarantees in the Constitution is concerned: eg,General Practitioners Society v The Commonwealth (1980) 145 CLR 532 at 564-565 per Murphy J; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 581-585 per Murphy J;Australian Capital Television v Commonwealth(1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1;Stephens v West Australian Newspapers Ltd (1994) 124 ALR 80.

¹² Department of Foreign Affairs and Trade, European Community Section, “Australia- European Union Relations”, March 1995.

¹³ The first such agreement concluded between the EU and an industrialised country outside Europe. The Agreement was formally approved by the Council on behalf of the EU on 27 June 1994-Council Decision 94/457 /EC, OJ 188/17.

¹⁴ Agreement relating to Scientific and Technical Co-operation between the European Community and Australia, Article 2.

¹⁵ Article 4(2) (emphasis added).

¹⁶ Paragraph 16.

¹⁷ Joint Communique - EC/ Australia Ministerial Consultations -16 May 1995.

¹⁸ Ibid.

¹⁹ Carlo Ripa di Meana, former Commissioner for the Environment, Nuclear Safety and Civil Protection - European Community Environmental Legislation - (General Policy )(1) 1992.

²⁰ For example, the Package Travel Directive - Council Directive 90/314 /EEC, OJ L 158/59,13 June 1990 which affects Australian business operating in the EU travel market.

²¹ Agreement relating to Scientific and Technical Co-operation between the European Community and Australia, Article 4(1)d.

²² Ibid, Preamble.

²³ The Environment Protection (Impact of Proposals) Act 1974 (Cth).

²⁴ National Parks and Wildlife -Conservation Act 1975 (Cth); World Heritage Properties Conservation Act 1983 (Cth); Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth).

²⁵ Australian Heritage Commission Act 1975 (Cth); Historic Shipwrecks Act 1976 (Cth).

²⁶ Environment Protection (Sea Dumping) Act 1981 (Cth); Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth).

²⁷ Ozone Protection Act 1989(Cth).

²⁸ See generally J Crawford, “The Constitution and the Environment” (1991) 13 Syd LR 11.

²⁹ For example, The Tasmanian Dam Case (Commonwealth v Tasmania (1983) 48 ALR 625);Queensland v Commonwealth (1988) 62 ALJR 143.

³⁰ DP McCrory, “Air Pollution Legislation in the United States and the Community” (1990)15ELRev 298 at 304.

³¹ Ibid.

³² Harmonisation is intended to reduce the differences between national laws to make such laws approximate. The terms “approximation” and “harmonisation” are used interchangeably.

³³ For example, Directive 64/54/EEC, OJ L 161/64, 27.1.64 on the approximation of the laws of the Member States concerning preservatives in foodstuffs intended for human consumption; Directive 70/357/EEC, OJ L 157/31, 18.7.70 on antioxidants in foodstuffs intended for human consumption; Directive 79/112/EEC, OJ L 33/1, 18.12.78 on the approximation of the laws of the Member States relating to labelling, presentation and advertising of foodstuffs.

³⁴ For example, Directive 73/405/EEC, OJ L 347/53, 17.12.73 relating to approximation of legislation on methods of testing the biodegradability of anionic surfactants; Directive 67/548/EEC, OJ L 196/1, 16.08.67 on the approximation of laws, regulations and administrative provisions regarding the classification, packaging and labelling of dangerous substances.

³⁵ For example, Directive 70/220/EEC, OJ L 76/1, 6.4.1970 prescribing measures against air pollution by gases from positive-ignition engines of motor vehicles; Directive 70/157 /EEC, OJ L 42/16, 23.02.70 on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles (recently amended by Council Directive 92/97 /EEC, 10.1_1.92); and Directive 78/1015/EEC, OJ L 349/21, 13.12.78 on the approximation of the laws of the Member States on the permissible sound level and exhaust system of motorcycles.

³⁶ For example, Directive 73/404/EEC, OJ L 347/51, 17.12.73, the object of which is to eliminate disparities between Member States on the biodegradability of detergents.

³⁷ For example, Council recommendation 79/3/EEC of 19 December 1978 to Member States regarding methods of evaluating the cost of pollution control to industry.

³⁸ D Vignes, “The Harmonisation of National Legislation and the EEC” (1990)15 EL Rev. 358.

³⁹ The Summit conference is said to have generated the impetus for the creation of much of the environmental legislation enacted over the past two decades or so in the Community, including the first Environmental Action Programme. The Summit participants recognised that economic expansion is not an end in itself, but that it “... should result in an improvement of the quality of life as well as in standards of living ... [and that] particular attention should be given to the intangible values and to protecting the environment, so that progress may really be put at the service of mankind”. (Report of the Commission of the European Communities to the United Nations Conference- on Environment and Development, Rio De Janeiro - June 1992, at 28.)

⁴⁰ (1980) ECR 1099 at 1106.

⁴¹ D Vignes, above n 38 at 368.

⁴² [1989] ECR 1615 at 1616.

⁴³ (1985) ECR 531 at 549.

⁴⁴ Ibid.

⁴⁵ [1988] ECR 4607.

⁴⁶ Ibid at 4609.

⁴⁷ Ibid at 4630.

⁴⁸ [1974] ECR 837.

⁴⁹ [1979] ECR 649 at 662.

⁵⁰ Ibid.

⁵¹ For a more complete discussion of Article 30 of the Treaty and of the “rule of reason”, see GA Moens, “Freedom of Movement of Goods in the European Community” (1990) 17 MULR 733, particularly at 734-738.

⁵² Commission v Denmark [1988] ECR 4607 at 4632.

⁵³ Ibid at 4630.

⁵⁴ Ibid at 4629.

⁵⁵ Denmark and the United Kingdom are known to be reluctant integrationalists and favour inter-governmentalism and the giving up of a modicum of sovereignty, over supra-nationalism (where the EU institutions have the power to override the Member States).

⁵⁶ For a comprehensive analysis of the evolution of the EC's competence to act in the environmental sphere, see S Bronitt, F Burns and D Kinley, Principles of European Community Law (1995), ch 12.

⁵⁷ Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436.

⁵⁸ Retailers selling non-refillable bottles were bound to accept empty returns and pay the higher refund whether or not the original product had been sold by them.

⁵⁹ Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 477.

⁶⁰ Ibid at 474.

⁶¹ Ibid.

⁶² Ibid at 480.

⁶³ TC Hartley, The Foundations of European Community Law (2nd ed 1989)at 146. Cf R v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd [1996] QB 197.

⁶⁴ Castlernaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473.

⁶⁵ The Single European Act was promulgated in 1987. It amended the EEC Treaty and made environmental protection one of the Community's stated objectives. The Single European Act contains a specific chapter on environment policy setting out the objectives and principles of such policy.

⁶⁶ The new-found concern for environmental protection is evidenced by the convocation of high level conferences and the emergence of agreements such as the Agreement of the Representatives of the Governments of the Member States meeting in Council on 5 March 1973 aimed at possible harmonisation throughout the Communities of urgent measures concerning the protection of the environment. OJ C 009 /1, 15.03.73.

⁶⁷ UN Conference on the Human Environment 1972 (Stockholm).

⁶⁸ OJ 1973 Cl12/l, 22.11.73.

⁶⁹ DP McGrory, above n 30 at 304-305.

⁷⁰ E Rehbinder and R Stewart, “Legal Integration in Federal Systems: European Community Environmental Law” [1985] 33 The American Journal of Comparative Law 371 at 400-401.

⁷¹ Ibid at 412, 413 and 443-446. Rehbinder and Stewart state that: “Economic considerations may militate in favour of a common solution, especially in the area of product standards. The institutional mechanisms of the Community afford the member states a forum for exchanging innovations in environmental policy. Harmonisation removes the economic disadvantages each member state would incur when introducing environmental controls individually because it imposes equal or at least similar economic burdens on industry throughout the Common Market. Finally, where transboundary pollution is involved, the problem can, as a practical matter, be addressed only by the Community” (at 412-413).

⁷² Ibid at 444.

⁷³ Ibid at 426.

⁷⁴ Rehbinder and Stewart remark that in Member States such as Italy and Belgium “there is a large implementation gap which allows them to agree to rather strict Community, measures because they anticipate that they will not have to be fully implemented.” Ibid at:417. See S Bronitt, F Burns and D Kinley, above n 56 at 560 for recent data on thel implementation deficit

⁷⁵ W Kennet (ed), The Futures of Europe (1976).

⁷⁶ Speech made by then Vice-President of Commission of European Communities Andriessen, on the occasion of the signing of the SEA in Luxembourg on 17 February, 1986.

⁷⁷ D P McCrory, above n 30 at 305.

⁷⁸ Title VII (which has since been replaced by Title XVI -TEU).

⁷⁹ Towards sustainability: A European Community Programme of policy and action in relation to the environment and sustainable development (1993) at 49.

⁸⁰ Consider Title 1, Article A on the manner in which integration is to be achieved.

⁸¹ Council Directive 85/337 /EEC of 27 June 1985 embodies the “preventive approach” to environmental protection, now elevated to the status of a “principle” in Article 130r(2) of the Treaty. The Directive provides in Article 2 that before the consent of a Government body is given to certain development projects which are likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location, they must be subjected to an assessment of possible environmental impacts. Article 4 (1) states that such projects are listed in Annex 1 of the Directive and include oil refineries, large thermal power stations, nuclear power stations and reactors (those not serving national defence purposes), radioactive waste storage and disposal installations, iron and steelworks, asbestos extracting and processing installations, motorway, expressway, railway line and airport construction, ports and inland waterways, hazardous waste landfill, incineration or treatment installations. If a project is likely to have significant effects on another Member State, the Member State must forward the information submitted by the developer to the affected Member State. Such information will then serve as a basis for consultations between them (Article 7).

⁸² Council Recommendation 75/436/Euratom/ECSC/EEC of 3 March 1975, although not legally binding, originally described the application of the “polluter pays” principle, which in 1987 was raised to a constitutional principle by the amendment of the EEC Treaty (Article 130r). The Recommendation states that: “[N]atural or legal persons governed by public or private law who are responsible for pollution must pay the costs of such measures as are necessary to eliminate that pollution or to reduce it so as to comply with the standards or equivalent measures ... laid down by the public authorities (Principle 2 - Annex)”.

⁸³ Greece v Council (1990) ECR I - 1527

⁸⁴ Nonetheless, the integration principle is limited in reality by the requirement in Article

130s that certain decisions be taken unanimously by the Council. According to K Bosselmann, “this has inevitably led to policies of the lowest common denominator”: “Greening of the EU Treaty System: Framework of Environmental Policies in the European Union” [1995] 12 EPLJ 278 at 280.

⁸⁵ Brundtland observed that: “ ... Governments' general response to the speed and scale of global changes has been a reluctance to recognise sufficiently the need to change themselves. The challenges are both interdependent and integrated, requiring comprehensive approaches and popular participation. Yet most of the institutions facing those challenges tend to be independent, fragmented, working to relatively narrow mandates with closed decision processes. Those responsible for managing natural resources and protecting the environment are institutionally separated from those responsible for managing the economy. The real world of interlocked economic and ecological systems will not change; the policies and institutions concerned must”. See Report of the World Commission on Environment and Development, Our Common Future (1987) at 9.

⁸⁶ For example, Prime Minister's statements on environmental policy in July 1989 and March 1990; and Inter-Governmental Agreement on the Environment (IGAE) 1992, Section 3.

⁸⁷ Supported by Council Recommendation 79/3/EEC of 19 December 1978 (Cost Allocation which offers a brief scheme containing principles, definitions and methods according to which the Member States should evaluate the cost of pollution control measures to industry and communicate the results of such studies to the European Commission. Its purpose is the harmonisation of the information collected in the Member States and the development of an overview of these costs throughout the Community.

⁸⁸ D P McGrory, above n 30 at 306.

⁸⁹ See below text accompanying n 177.

⁹⁰ Article 130d, EC Treaty, pursuant to which the Cohesion Fund is set up.

⁹¹ Article 1 of Council Regulation 93/792/EEC of 30 March 1993 establishes a “cohesion” financial instrument to provide Community support for projects in the fields of the environment and trans-European transport infrastructure networks. OJ L 79/74, 1.4.93.

⁹² Preamble, IGAE 1992.

⁹³ Council Regulation 93/792/EEC, Art 5(1).

⁹⁴ Spain, Italy and Greece head the table for most breaches of EU Green rules (see Economist “The dirty dozen” 20th-26th July 1991). This serves to highlight the so-called “enforcement deficit” in EU environmental law. Whilst Article 171 of the EC Treaty has always obliged Member States to comply with the judgments of the ECJ, enforcement has always been a problem. The new Article 171(2), inserted by the TEU, empowers the ECJ, upon application by the EU Commission, to impose “a lump sum or penalty payment” upon defaulting Member States. Fischer and Neff comment that this provision is analogous to the common law judicial power of contempt of court, but foreshadow a reluctance on the part of the EU Commission to seek, and the ECJ to impose, a penalty, “bearing in mind that negotiation is the order of the day in the EU”: TC Fischer and SC Neff, “Some American Thoughts about European Federalism” [1995) 44 International and Comparative Law Quarterly 904 at 907.

⁹⁵ K Bosselmann, “Greening of the EU Treaty System: Framework of Environmental Policies in the European Union” [1995)12 EPLJ 278 at 279.

⁹⁶ The co-operation procedure allows the Council to adopt legislation by qualified majority and strengthens the powers of the European Parliament by granting it two readings of a proposed law and limiting the power of the Council to adopt legislation which is inconsistent with the opinion of the Parliament.

⁹⁷ Specifically provided for in Article 7a, EC Treaty. (Note that, under Title 11, Article G (9) of the TEU, the former Article Sa becomes Article 7a.)

⁹⁸ An implied or inherent power in the Commonwealth derived from its status as a national government: see Attorney-General (Vic) v Commonwealth (Pharmaceutical Benefits case) (1945) 71 CLR 237; Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 at 375, 397 and 412. The High Court, however, rejected this power as the basis for the legislation in Tasmanian Dam case. Leslie Zines in a paper titled “The Environment and the Constitution”, presented at a seminar on Federalism and the Environment at the Australian National University, Canberra in 1984 noted that the scope of this power is somewhat uncertain but opined that “the acquisition and maintenance by the Commonwealth of historic places or structures as part of our natural heritage” might be found to be within this power.

⁹⁹ Murphyores Inc. Pty Ltd v Commonwealth (1976) 136 CLR 1;Commonwealth v Tasmania (1983)46 ALR 625; Richardson v Forestry Commission (1988) 164 CLR 261; Queensland Commonwealth (1988) 62 ALJR 143.

¹⁰⁰ See generally, W Campbell, “Implementation of International Environmental Law ir Australia”, Paper presented at a series of seminars, November 1991 for the Internationa Law Section, Law Council of Australia.

¹⁰¹ K Murchison, “Environmental Law in Australia and the United States: A ComparativE Overview- Part 1” (1994)11 EPLJ 179 at 184.

¹⁰² Advisory Committee on the Distribution of Powers, Report of The Advisory Committee to the Constitutional Commission (1987)at paragraph 8.28.

¹⁰³ Ibid.

¹⁰⁴ M Auster, above n 3 at 280.

¹⁰⁵ Ibid

¹⁰⁶ Ibid.

¹⁰⁷ L Zines, “The Environment and the Constitution” in Mathews (ed), Federalism and the Environment,(1985) 13 at 16.

¹⁰⁸ Ibid at 17.

¹⁰⁹ Ibid.

¹¹⁰ Preamble IGAE, 1992.

¹¹¹ The Commonwealth and the States were required to pass uniform and complementary legislation to establish the National Environment Protection Authority (NEPA), a statutory Ministerial Council established under the terms of Schedule 4, clause 2 of the IGAE, and introduce or amend environment protection legislation to ensure that National Environment Protection Measures (NEPM) are adopted within their jurisdictions (see IGAE, Schedule 4, clause 16).

¹¹² “Commission Communication on the principle of subsidiarity”. Bull EC 10-1992 at 116.

¹¹³ M Auster, above n 3 at 280.

¹¹⁴ “Commission Communication on the principle of subsidiarity”,above n 112 at 125.

¹¹⁵ Ibid at 119.

¹¹⁶ The public perception, by the Commission's own admission, (Bull EC 10-1992 at 119) h that the Commission is mainly to blame for any rules or regulations which seem to conflic with the subsidiarity principle.

¹¹⁷ Economist,“Scapegoat passes buck”, 3 October 1992.

¹¹⁸ “Commission Communication on the principle of subsidiarity”,above n 112 at 119.

¹¹⁹ Economist, above n 117.

¹²⁰ K Bosselmann, above n 95 at 282.

¹²¹ “The Subsidiarity principle” (27 October 1992) Bull EC 10-1992 at 117.

¹²² Ibid at 118.

¹²³ These powers are strictly limited by the requirements of Article 235.

¹²⁴ Directorate-General for Research, Fact Sheets of the European Parliament and the Activities of the European Union (1993)at 22.

¹²⁵ Jacques Delors, former President of the Commission, Bull EC 11-1992 at 12.

¹²⁶ Bull EC 10-1992 at 120.

¹²⁷ Bull EC 10-1992 at 117.

¹²⁸ Ibid.

¹²⁹ DP McGrory, above n 30 at 307.

¹³⁰ The principle by which certain Community legislative provisions have direct application in national law in the sense that nationals of Member States can lay claim to rights which the national courts are bound to protect: Van Gend en Loos v Nederlandse Administratie Der Belastingen [1963] ECR 1. Pursuant to this principle, an individual is entitled to invoke a Community measure before a national Court, requesting it to not apply provisions of national law that contravene directly effective Community law.

¹³¹ SeeVan Duyn v Home Office [1974] ECR 137; Publico Ministero v Ratti [1979] ECR 1629; Ursula Becker v Finanzamt Muenster-Innenstadt [1982] ECR 53. Legal writers have noted that environmental directives will rarely satisfy the pre-conditions for direct effect, namely clarity and unconditionality, which casts some doubt on the effectiveness of directives as a means of protecting the environment: S Bronitt, F Bums and D Kinley, above n 56 at 565.

¹³² COM (93) 423.

¹³³ Bull EC 9-1993 at 42.

¹³⁴ COM (93) 680.

¹³⁵ Bull EU 6-1994. Another example of a proposed framework directive is the amended Commission proposal for directive on packaging and packaging waste (COM (93) 416; Bull EC 9-1993, point 1.2.106) which provides for the Member States to adopt measures aimed at preventingthe production of packaging waste, reusing packaging, and recycling and recovering packaging waste. Member States will be authorised to set higher targets provided the measures cause no distortion of the internal market and in no way prevent the other Member States from complying with the directive.

¹³⁶ Bull EC 11-1992 at 12.

¹³⁷ Bull EC 10-1992 at 126.

¹³⁸ Economist,above n 117.

¹³⁹ EU Background Report,“Adapting Community Legislation to Subsidiarity”,June 1994.

¹⁴⁰ Ibid.

¹⁴¹ Emile Noel, Working Together — The Institutions of the European Community (1993) at 26;Frontier Free Europe Monthly Newsletter No 5/1995.

¹⁴² Eur -Op News (4 (1)) Spring 1995.

¹⁴³ For example, M Crommelin, “Commonwealth Involvement in Environment Policy: Past, Present and Future” (1987) 4 EPLJ 101 at 110: “[I]t is not enough to ask whether the Commonwealth has the power to be involved. Nor should it be assumed that power necessarily begets responsibility. The issue is which level of government can better perform the tasks of devising and implementing the various aspects of environment policy”.

¹⁴⁴ R Fowler, “New National Directions in Environmental Protection & Conservation” in B Boer, R Fowler et al (eds), Environmental Outlook- Law and Policy (1994)113 at 128, citing Communique from Premiers' meeting in Adelaide in November 1991.

¹⁴⁵ K Wiltshire, “Australia's New Federalism: Recipes for Marble Cakes"(1992) 22 Publius 165.

¹⁴⁶ Financial Review, “Feds may extend Control over the Environment”,7 October 1994.

¹⁴⁷ The Commonwealth Environment Minister may, pursuant to the EP(IP) Act, require an environmental impact statement (EIS) for projects (“proposed activities” of Commonwealth Departments or statutory authorities or proposals requiring Commonwealth approval or finance) likely to have significant impacts on the environment. It has, as Fowler notes, been applied frequently to developments being undertaken within State boundaries which require export or foreign investment approval (eg, mining, forestry, pulp mill and tourism projects) for whichCommonwealth EIS is justified by the Constitution. Thus there is inevitably scope for overlap with State EIA. See R Fowler, above n 144 at 121.

¹⁴⁸ Ibid.

¹⁴⁹ IGAE, Schedules 3 and 4 (clause 10 ).

¹⁵⁰ G Bates, Environmental Law in Australia (4th ed 1995) at 145.

¹⁵¹ R Fowler, “Environmental law and its Administration in Australia” (1984) 1 EPLJ 10 at 47.

¹⁵² Article 189, EC Treaty.

¹⁵³ M Crommelin,above n 143.

¹⁵⁴ This Ministerial Council shares some of the functions of the ad hoc dialogue groups established under the EU's Fifth Environmental Action Programme (1993-2000) to institute reforms, in so far as both have responsibility for the better preparation of measures and the achievement of overall policy coherence through improved consultation and co-operation arrangements.

¹⁵⁵ IGAE, Schedule 4.

¹⁵⁶ IGAE, Schedule 4, clause 5.

¹⁵⁷ IGAE, Schedule 4, clause 2. Other Ministerial Councils require full consensus in decision-making.

¹⁵⁸ IGAE clauses 15, 16 and 17. But note that Commonwealth Parliament can veto a measure of NEPA.

¹⁵⁹ IGAE clause 3.

¹⁶⁰ Noted by K Murchison, above n 101 at 185.

¹⁶¹ For instance, the Commonwealth came to an agreement with the States in 1979 whereby it recognised the States' interests in respect of the seabed and its resources within a 3 mile limit; this occurred after the High Court had confirmed the Commonwealth's powersover the territorial sea in New South Wales v Commonwealth (1975) 8 ALR 1.

¹⁶² A Gardner, “Federal Intergovernmental Co-operation on Environmental Management: A Comparison of Developments in Australia and Canada” [1994] 11 EPLJ 104 at 111-112.

¹⁶³ Ibid.

¹⁶⁴ IGAE, s 2.2.

¹⁶⁵ IGAE, s 2.3.

¹⁶⁶ IGAE, s 2.4.

¹⁶⁷ IGAE, s 1.5.

¹⁶⁸ Ibid.

¹⁶⁹ IGAE, ss 2.5.1.2 and 2.5.1.4.

¹⁷⁰ IGAE, ss 2.5.1.l(iii) and 2.5.1.3.

¹⁷¹ A Gardner, above n 162 at 116.

¹⁷² The Western Australian Government's withdrawal from the IGAE at the end of 1993, does, however, cast doubt on the viability of the IGAE.

¹⁷³ IGAE, s 3. 2.

¹⁷⁴ IGAE, s 3. 3.

¹⁷⁵ Closure of Jean Monnet Centenary Symposium, Brussels, 10 November 1988.

¹⁷⁶ However, the legal instruments provided for by the TEU to promote co-operation on justice and home affairs, having been found inadequate to meet real needs (“Maastricht Treaty: a term report” EU News, Vol 18, No 5 June/July 1995) is subject to review at the 1996 Intergovernmental Conference.

¹⁷⁷ Article 189 c.

¹⁷⁸ For example, on the basis of Parliament's opinion (OJ No C 190/178, 20.7.87 and OJ No C 167, 27.6.88) which proposed l.lg or l.3g/test as the limit value for particulate pollutant emissions from motor vehicles with diesel engines (Commission 1.3 or 1.7 test) the Council responded by setting the figure at l.lg or l.4g/test, a net reduction: Council Directive 88/436/EEC, OJ L 214/1, 6.8.88. In addition the “co-decision” procedure set out in Article 189b of the TEU strengthens the influence of the Parliament by giving it a power of veto in specified areas including the environment.

¹⁷⁹ M Auster, above n 3 at 277, citing G C Rowe, “Aspects of Australian Federalism and the European Communities compared” in M Cappelletti, M Seccombe and J Weiler (eds), Integration Through Law: Europe and the American Federal Experience (1986) Vol. 1.

¹⁸⁰ E Rehbinder and R Stewart, above n 70 at 416.

¹⁸¹ M Crommelin, above n 143 at 110.

¹⁸² J Siourthas, “Supranational Federations: The European Community as a Model” (1993) 19 Monash University Law Review 273 at 303.

¹⁸³ The extent to which EU affairs are decided outside the direct control of elected members of Parliament.

¹⁸⁴ Economist,“Santer cracks the whip”, 5 November 1994.

¹⁸⁵ Ibid

¹⁸⁶ J Siourthas, above n 182.

¹⁸⁷ R Bieber, J-P Jacque and J Weiler, An Ever Closer Union: A critical analysis of the Draft Treaty establishing the European Union, (1985) at 105.

¹⁸⁸ Bull EC 1/2-1993, 1.1.1. (Parliament resolution adopted on 20 January 1993).

¹⁸⁹ Speech titled “Subsidiarity in the Constitution of the European Community”.

¹⁹⁰ Murchison concludes, in his overview of environmental law in Australia and the United States that “the differences between Australia and the United States preclude mimicry in the search for solutions to environmental problems”: K Murchison, “Environmental Law in Australia and the US: A Comparative Overview - Part 2” (1994) 11 EPLJ 254 at 265. This applies equally to the differences between the EU and Australia. However, the arrangements presently in place to promote collaboration and information exchange between the EU and Australia in this field have the potential to maximise solution sharing where this is deemed desirable and appropriate.

¹⁹¹ K Murchison, above n 190 at 265.

¹⁹² Ibid at 268.

¹⁹³ The European Community has set standards for three air-borne pollutants, sulphur dioxide (Council Directive 80/779/EEC OJ L 229/30, 30.8.80), suspended particulates in the atmosphere (Council Directive 80/779/EEC OJ L 229/30, 30.8.1980) and lead (Council Directive 82/884/EEC OJ L 378/15, 31.12.82). The Community has also set limit values for nitrogen dioxide (Council Directive 85/203/EEC OJ L 87/1, 27.3.85). The Community air pollution programme also directs large combustion plants with a thermal output of 50 Megawatts (MW) or more to reduce by 58% sulphur dioxide emissions in the Community as a whole by the year 2003 and nitrogen oxides by 40%. This is to be accomplished by means of a combination of two phases of ceilings and targets for reduction of emissions of sulphur dioxide and nitrogen oxides from existing plants and strict emission limits on new plants (Council Directive 88/609/EEC OJ L 336/1, 7.12.88).

¹⁹⁴ Council Decision 81/462/ EEC of 11 June 1981, OJ L 171/11, 27.6.81 on transboundary Air Pollution approves on behalf of the Community (Article 1) the Geneva Convention on long-range transboundary air pollution, which had been drawn up under the auspices of the United Nations Economic Commission for Europe (ECE). The Convention, signed in 1979, came into force in the Community on 6 March 1983. The purpose of the Convention is “to protect man and his environment against air pollution” (Article 2) by monitoring, limiting and gradually reducing air pollution (Articles 2 and 3), in particular transboundary air pollution by sulphur dioxide (Article 9). It provides for the exchange of information (Article 8), research and monitoring, and the development of policies to combat the discharge of pollutants (Article 4). A co-operative programme for the monitoring and evaluation of the long-range transmission of air pollutants in Europe (EMEP) was set up in 1986 by Council Decision 86/277/EEC.

¹⁹⁵ K Murchison, above n 101 at 184.

¹⁹⁶ Ibid.

¹⁹⁷ Indeed Murchison states that two political realities support further expansion of Commonwealth power: (1) the environmental movement is likely to focus on national reforms; and (2) established businesses and States with advanced environmental laws are likely to favour uniform national regulations to avoid competition from businesses which locate in less regulated States ( ibid at 185).

¹⁹⁸ K Murchison, above n 101 at 183. The writer states that these cases provide the theoretical basis for Commonwealth action on the pollution front.

¹⁹⁹ K Murchison, above n 101 at 180-185.

²⁰⁰ Proposed by E Rehbinder and R Stewart, above n 70 at 445-446.

²⁰¹ For example, Helping Europe's Regions —Europe on the Move (1992).

²⁰² The Committee of the Regions is a consultative body consisting of 222 representatives of sub-national units of government. Members are appointed for a 4 year term by the Council acting unanimously and must be consulted by the Commission or Council in accordance with the EC Treaty. The Committee of the Regions provides a formal mechanism through which the regions can express their views on proposed legislation.

²⁰³ J Siourthas, above n 182 at 304-305.

²⁰⁴ For instance four million people _living along the Meuse and Rhine rivers in Germany, Belgium and the Netherlands now share use of town halls, schools and conference centres; French and Spanish regions either side of the Pyrenees now collaborate to maximise the benefits of the single market for locals.

²⁰⁵ D Cass, “Subsidiarity and the European Community”, Paper delivered at the First Annual Meeting of the Australian & New Zealand Society of International Law, 28 May 1993, Australian National University, Canberra.

²⁰⁶ Ibid at 4.

²⁰⁷ The author does not intend to imply that the Commonwealth has implemented all of its international obligations as required. Indeed, the Hinchinbrook Channel development proposal has recently highlighted the deficiencies of the World Heritage Properties Conservation Act 1983 as a means of protecting World Heritage values, and has led to questions of whether Australia is in fact meeting its international obligations in respect of the management of its World Heritage areas.

²⁰⁸ Article 7(1) of the Agreement stipulates that co-operative activities shall be subject to the availability of funds.

²⁰⁹ Defined in Article 1 of the Agreement to include joint research.

²¹⁰ Article 1 of the Agreement defines “participants” as “any person, legal entity, research institute or any other body participating in a research project under this Agreement including the parties themselves”.

²¹¹ “EU - Australia S&T Agreement off to a good start”, European Union News 13(8), October / November 1995.

²¹² The constitution of the Single European Market has arguably provided the impetus for the formation of the North American Free Trade Agreement (NAFTA) and more recently, the Asia-Pacific Economic Co-operation (APEC) agreement to promote free trade among the participating States. The stage is set for the conclusion in the not too distant future of similar agreements comprising the rest of Asia, Africa and Central and South America.