1.2 Sources of environmental law
There are two sources of law in Australia. These are legislation and common law.
In the Northern Territory, legislation (also called statute law) means Acts and regulations made by the Northern Territory Parliament or Commonwealth Parliament, or by-laws made by local councils.
The Northern Territory has approximately 25 Acts that regulate environmental matters. These include Acts made by the Northern Territory Parliament[i] and Acts made by the Commonwealth Parliament.[ii]
When Acts are passed, they can provide for further legislation to be made which will set out in more detail how the Act will work. This type of legislation is called subordinate legislation. It includes regulations made by the Northern Territory Parliament (e.g. Water Regulations) and other statutory instruments.[iii]
Policies and guidance documents can also be prepared by government departments to assist in administering the law. Although these documents are not laws, they may affect how the law is administered or enforced in practice. They can often be an important source of information for decision-makers.
The Northern Territory Parliament is made up of the Legislative Assembly and the Administrator. The Legislative Assembly is the house of parliament where draft laws (called bills) are debated. Legislation is passed when a majority of the members of the Legislative Assembly approve a bill and it is presented to the Administrator for approval (called assent). The Administrator of the Northern Territory is the Queen’s representative and acts on the advice of the Northern Territory Government. The Administrator is appointed by the Governor-General of Australia.
Common law is law made by the courts. It is also called “judge-made” law or case law. The decision of a court (a judgment) can form a precedent. This means that other courts at the same level or of a lower level are bound to follow an earlier decision of a court in a later case. Examples of laws which have been developed by the courts are: trespass, negligence and nuisance.
Australia is a signatory to a number of international treaties on environmental issues. These international laws do not have direct legal effect in the Northern Territory unless the Commonwealth Parliament passes a law to make its international obligations part of national law. For this reason, you cannot generally rely on international environmental laws in legal proceedings in the Northern Territory, although courts and tribunals may use them to help decide how the law should be interpreted.
How to find laws
Acts, regulations and by-laws of the Northern Territory can be accessed from the Current Northern Territory Legislation Database. You can search for laws alphabetically or by the Government department that administers the law.
You can find bills that have been proposed to the Legislative Assembly and laws that have been passed but are not yet in force in the Register of Legislation. Note that Acts in the Northern Territory do not usually include the year in which they were passed in their citation.
You can search for Commonwealth legislation on the Australian Government Comlaw website. The Australian Government Department of Sustainability, Environment, Water, Population and Communities also has a list of Commonwealth environmental legislation.
You can find judgments and decisions of some Northern Territory courts and from the Lands, Planning and Mining Tribunal on the Department of Justice website. In cases before the Lands, Planning and Mining Tribunal where a decision was not handed down, you can make an application to the Registrar to obtain a copy of the final order made by the Tribunal.
The Australasian Legal Information Institute website also has legislation and cases from the Northern Territory and Commonwealth, and other States and Territories.
[iii] E.g. the Northern Territory Planning Scheme.