Courts and case law


The Australian judicial system consists of a hierarchy of courts. In the ACT the Magistrates Court is at the first level of the ACT courts system, followed by the Supreme Court of the ACT, the ACT Court of Appeal and the High Court of Australia being the highest court of appeal. If a case in the Magistrates Court is unsuccessful, it can generally be appealed to the Supreme Court, and then to higher courts (subject to specific rules and requirements about what can be appealed). The lower courts are bound by the decisions of higher courts; these decisions are known as legal ‘precedents’. This practice provides continuity and stability to judicial decisions.

Broadly speaking, there are two main types of cases that come before the different courts: criminal cases and civil cases. A brief overview of the differences between criminal and civil law, and of some general areas of civil law that may be important in the context of environmental law, is provided below.

Criminal law

In a criminal case, it is the government (referred to as the Crown) that usually brings an action to prosecute a criminal offence. The two parties involved in these cases are known as the prosecution and the defendant. The penalty for a person convicted of a criminal offence will generally be a fine or imprisonment. Due to the serious consequences of convicting a person of a crime, the prosecution is required to prove its case beyond reasonable doubt.

The Environment Protection Act 1997 (ACT) contains many examples of criminal offences. For example, it is an offence for a person to knowingly or recklessly cause serious environmental harm, with a penalty of 2,000 penalty units (currently a $300,000 fine for individuals and a $1,500,000 fine for corporations), five years’ imprisonment or both (s 137) (see Chapter 10 of this Handbook for more information on offences against the environment). The Nature Conservation Act 2014 (ACT) also contains criminal offence provisions. For example, section 128 makes it an offence to interfere with the nest of a native animal, with a penalty of currently $3,000 for individuals and $15,000 for a corporation (see Chapter 5 of this Handbook for more information on offences against biodiversity).

Civil law

Civil law involves disputes between two or more parties. The party bringing the action is referred to as the plaintiff or applicant and the party being sued is referred to as the defendant or respondent. The parties can include individual persons, organisations, corporations and governments. Depending on the type of dispute, the successful party may obtain damages (an award of money as compensation for loss or injury) and/or costs, which are the expenses incurred as a result of bringing the matter before the court. Remedies sought in a civil dispute can include an order such as an injunction, which requires the other party to do, or stop doing, something. An injunction can be a useful remedy in environmental cases because it can prevent environmental damage being done, or ensure that action is taken to remedy a problem. In order to succeed in a civil action, a party must convince the court that its case has been proven on the balance of probabilities (see Chapter 12 of this Handbook for more information on commencing civil action before the courts).

Nuisance and negligence

Two areas of civil law that may be relevant to environmental protection are nuisance and negligence. Both these areas of the law are known as ‘torts’ (civil wrongs) and are mainly governed by the common law (case law), rather than by legislation. Defamation, which is another area of tort law, is discussed in Chapter 12.

The law of nuisance broadly concerns the protection of a person’s land from damage or from activities that interfere with the enjoyment of that land. Nuisance can involve, for example, water escaping from a dam, pollutants escaping from a mining operation, fumes escaping from an industrial process or noxious weeds spreading from one property to another. However, nuisance is of limited use in protecting the environment because it only protects an individual’s interest in land. Many of these situations are now dealt with by legislation dealing with pollution and other environmental harms (see Chapter 10 of this Handbook for information on environmental harm).

In an action for negligence, it is necessary to show that the defendant owed the claimant a duty of care, that he or she breached that duty, and that the claimant suffered damage as a result. It is possible that the law of negligence could apply in some situations where there has been environmental damage. In some circumstances, governments can also be sued for breach of their statutory duties.

It should be noted that a disadvantage of bringing a legal action for negligence or nuisance is that, as with most court action, it will often be time-consuming, complex and expensive.

Administrative law

This branch of civil law deals with both the quality and lawfulness of decisions made by ministers, departments and government authorities. Individuals and community groups seeking to protect the environment may be able to use this branch of law to challenge government decisions that affect the environment.

There are various avenues for review of government decisions. This chapter briefly mentions two: merits review by the ACT Civil and Administrative Tribunal (ACAT) and judicial review by a court.

In 2008 the ACT passed legislation which abolished a number of ACT tribunals, including the Administrative Appeals Tribunal (AAT), and consolidated them in a single tribunal, being ACAT (see Chapter 12 of this Handbook for more information on ACAT).

In reviewing a decision by a minister or other official, ACAT deals with the merits of the decision, that is, it stands in the shoes of the original decision-maker and decides whether the decision is a good one or not. It can support the existing decision, attach conditions to it, make an entirely new decision, or send the matter back to the original decision-maker with directions on how to reconsider that decision. Most of the ACT legislation includes a schedule towards the end of each Act which lists exactly what are the ‘reviewable decisions’ made pursuant to that Act. For example, Schedule 1 of the Planning and Development Act 2007 lists decisions made under the Act that are reviewable, such as a decision made under section 162 to refuse or approve a development application in the impact track.

The schedules also list what entity or party is eligible (has standing) to ask for a review of the decision. Using the above example, a decision under section 162 of the Planning Act to approve a development application in the impact track may be reviewed by the applicant for the DA or an entity such as an individual or organisation subject to the stated conditions (s 408A and Sch 1 col 1 item 5 & 6). The procedures in ACAT are relatively informal and usually each party bears its own costs. This is a very important avenue of review for decisions affecting the environment in the ACT.

Most decisions are also subject to judicial review by the courts. Judicial review generally involves a challenge to the lawfulness of the procedure that has been undertaken, rather than the merits of the decision. Reasons for judicial review could include a breach of natural justice. This can occur where the decision-maker does not observe the procedures required by law when making the decision, or was without the jurisdiction to make the decision. These and other grounds are noted in section 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) which contemplate procedural errors in decision-making and allow an opportunity for the decision to be judicially reviewed. Some decisions are exempt from review pursuant to the ADJR Act and are specifically listed in Schedule 1 of that Act – ‘Decisions to which this Act does not apply’.

In the ACT, decisions are judicially reviewed in the Supreme Court and are much more complex (and expensive to run) than cases in ACAT. Alternative options, such as making complaints to the Ombudsman or the ACT Commissioner for Sustainability and the Environment, are discussed in Chapter 12.

For decisions made by Commonwealth officials, judicial review is usually available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the Federal Magistrates Court, Federal Court and High Court. For some types of decisions, review of the merits of the decision is also available in the Commonwealth Administrative Appeals Tribunal.

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