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Book Review: Environmental Law in Australia: An Introduction

This work is the legal contribution to the University of Queensland Press Australian Environment Series. The author, Dr Douglas Fisher, Senior Lecturer in Law at the Australian National University, makes no claim to comprehensive treatment of Australian environmental law. On the contrary, he modestly describes the work as "an introduction", an attempt to "put together a few ideas on the subject" drawing upon material from each State and from the Commonwealth. The book is intended for non-legal, as well as legal, readers and particularly for those students at tertiary institutions who are required to acquire some knowledge of the legal aspects of environmental studies. The strength of the work is its rigorous conceptual analysis of environmental legislation. The author has sought to identify common characteristics of environmental controls, to consider the principles which they implicitly embody, and to measure the success of existing legal techniques. The result is a stimulating work which must assist to reduce the conceptual amorphousness so frequently encountered in this area. The first chapter outlines the nature of environmental law, examining the extent to which that law has moved from being anthropocentric to ecocentric and the effect of an inter-disciplinary approach to decisionmaking. Recognition of new interests heightens the potential for conflict and the need for more sophisticated decision-making techniques. The author persuasively argues the case for breaking the nexus with property: "The jurisprudence of environmental law is the conception of interest rather than of right" (page 11). This notion leads logically to the theme of the second chapter: the fragmentation of legal authority. Given the recognition of interests and the multiplicity of authorities supporting those interests, conflict is inevitable. Typically, dispute resolution involves a determination whether one interest is to overwhelm the other or whether the environmental entrepreneur must comply with two sets of rules. Occasionally an attempt is made to provide a single set of rules for a project, as by a special Act of Parliament. More frequently there is conflict between contending . rules and concepts. Particular attention is given to the conflict with property interests, with aboriginal law and in federal-State relations. The third chapter deals with the institutional framework, with particular emphasis on present systems of legal control and decisionmaking. Fisher frankly admits the dependence of those systems on executive discretion and the extent to which Ministers by-pass the machinery of environmental impact statements and environmental enquiries.