DUCK SHOOTING PART 2

[Syd Curtis <>]

Greetings Andrew and Birding-aus,

Andrew, on March 18 you wrote: 

> From: Andrew Taylor <>
> Reply-To: Andrew Taylor <>
> Date: Sat, 18 Mar 2006 16:04:56 +1100
> To: 
> Subject: Re: [BIRDING-AUS] DUCK SHOOTING PART 2
> 
> On Fri, Mar 17, 2006 at 09:10:52PM +1100, Damien Farine wrote:
>> Isn't it Federal law that states that all native Australian animals
>> (vertebrates at least) are protected?  If so, then how can the states
>> over-rule that and legalise killing of native Australian ducks?
> 
> I was hoping someone with a legal background would reply but here
> is my understanding.  The Australian constitution largely neglects
> environmental & conservation matters ...


You are correct in blaming the Australian Constitution.  The Commonwealth of Australia was formed by the union of the several independent British Crown colonies.  The preamble begins:

> "Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania ... have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland ..."

However,"the people" were concerned for their individual State rights and the Constitution is written on the basis of specifying the matters for which the new Commonwealth Government could legislate.  Thus Section 51 commences:

> 51.  The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
>
> > (i.)  Trade and commerce with other countries, and among the states;
> > (ii.)  Taxation; but so as not to discriminate between States or parts of States;
> > (iii.)  etc.,
  
The Section goes on to list 39 items.  Anything not included remains the prerogative of the States and the Commonwealth can't legislate to override the States (with certain exceptions).   The administration of land and protection of wildlife are not included in S. 51, and therefore in general, the Commonwealth cannot legislate to protect native animals or establish and manage national parks.   

The obvious exception is that the Commonwealth Government can do so with respect to Commonwealth territories.  For example,  most of the great Barrier Reef is Commonwealth territory and is not part of Queensland.   Therefore we have the Great Barrier Reef Marine Park established by Commonwealth law.

A less obvious exception arises from paragraph (xxix.) of S. 51, which simply reads "External Affairs".  This allows the Commonwealth Government to enter into international agreements, and where there is such an agreement the Commonwealth can legislate to implement the agreement, if necessary, overriding State legislation.  

But for most of the geographical extent of Australia, nature conservation, protection of native plants and animals, creation of reserves (all land administration matters, in fact), remain the responsibility of the individual States.

Cheers

Syd Curtis (Brisbane)

[BTW, slightly off topic but not entirely so, in any consideration of Australia becoming a republic, always remember that it is our Constitution that has to be altered or replaced.  And the critical thing is how any proposed new Constitution will affect the legislative position with respect to whatever matters are of concern to you.  This, I suggest, is of far greater practical importance, than who is our Head of State.]