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How do we use a legislative hierarchy to protect the environment?

Updated: Oct 18, 2021

Until I worked in a regulatory context, environmental regulation seemed like a big bowl of minestrone soup! All the different bits I needed to understand seemed to be all over the place. What I didn't know then was that there is actually an order to it: the legislative hierarchy (Figure 1).

Figure 1: An example of a legislative hierarchy in Australia, with law or legislation at the top of the pyramid.

In most states in Australia, environmental regulation follows a hierarchy, similar (but not necessarily the same) to the one in Figure 1. The top of the pyramid is always the legislation or acts (law). The further down a legislative pyramid we go, the more specific a tool becomes in relation to how to meet obligations under the Act; a hierarchy of tools under a law. As I am not a lawyer, I won't go into legality of different parts of the hierarchy.

Each part of the hierarchy has a different role. The legislation or law is enforceable; you must abide by it. Environmental protection legislation can include a range of issues such as pollution, what activities need to be licensed or approved, what is defined as pollution or waste, what is illegal dumping etc.

Regulations are the next tier, and they are usually referred too within an Act. Regulations can encompass a broad range of environmental issues including waste, development, activities etc. Regulations often set out specific legal obligations that need to be achieved. For example, regulations may state that you need to have a license if you are accepting so many tonnes of waste per year.

Policies come below regulation and law in the legislative hierarchy. Policy describes how legislation may be achieved; a course of action to achieve a legislated outcome. Policy may set benchmarks, or discuss activities that do (or do not!) help to achieve the legislated outcomes. For water policies, this may include what is considered acceptable levels of salts or nutrients in different types of waterways.

Finally, guidelines and codes give examples of how you can achieve the legislated outcomes; they provide a method or an approach that a regulator will allow (if followed) to achieve the intention of the legislation. This could be in the form of a guideline on how to develop and run a composting facility under a specific State or jurisdictional Act.

Recently, I was looking into the Australian Drinking Water Guidelines. I wanted to know how the guidelines fit into a legislative hierarchy in NSW. This is when I discovered the Public Health Act 2010 – the legislation. This Act actually directly refers to the Australian Drinking Water Guidelines for the purpose of a quality assurance and monitoring programs. This means that the guidelines have been adopted and referred to directly under the Act, and that water treatment plants in NSW must abide by the guidelines for quality assurance. Here the legislation jumps straight to a guideline as part of its legal obligations – we miss some of the steps of regulation and policy in the hierarchy. Policy and regulation may be used to cover other aspects of drinking water, such as land management around dams or waterway management.

I often get questions about how Standards fit into a legislative hierarchy. Standards can be a be a bit like codes and guidelines, as they provide advice on how to achieve good practice.

Standards, however, typically sit outside the regulatory hierarchy.

In the EU and the UK, standards have been developed as a way of demonstrating the outcome required to achieve a legislated directive or regulation. They sit nested inside the legislation.

In Australia, however, Standards are written by a committee within a not-for-profit; Standards Australia. Standards in Australia are typically not obligatory, they often do not fall under a legislative hierarchy and thus do not always fulfil obligations of legislation (i.e. soil and compost standards). They may, however, be adopted by legislation – the hierarchy may reference a particular Standard in order to use it. Some Standards, however, may have been developed specifically for a piece of legislation (i.e. safety standards). When using Standards, it is important to understand how it does or does not help to achieve your legal obligations.

Legislative hierarchies can be useful to look at when navigating environmental regulation. It helps in understanding the legal requirements (legislation and regulation), what the goals are to achieve them (policy) and ways to achieve them through the use of different tools (guidelines and codes). It is also important to understand how the hierarchy works for environment in your own state and jurisdiction, as they are always a bit different.

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