Environment Protection and Biodiversity Conservation Bill 1998 & Environmental Reform (Consequential Provisions) Bill 1998
Table of Contents

Chapter two

History of The Commonwealth's Environmental Role

The Commonwealth's Role in Environmental Protection and Management

2.1 Since Federation, the roles and responsibilities of the Commonwealth in environmental protection and conservation of the natural environment have not been concisely or comprehensively determined in a deliberate fashion. The Constitution does not contain any specific clause on the environment. [1]

2.2 As functions of an environmental nature were required to be regulated, such as natural resource management, planning and land use control, States developed the necessary regulatory bodies. States took on this role as a matter of legal ownership over natural resources, proximity to the issues at hand and through the necessity for land-use planning. [2]

2.3 As political and social awareness of the importance of environmental protection grew, it became clear that the transboundary nature of many environmental problems necessitated both international and national approaches. [3] The Commonwealth was presumed to be capable of taking on an environmental protection role with a national perspective. [4] As a result, the Commonwealth legislated over a wide range of environmental issues, including some of the most significant environmental Acts such as the Environment Protection (Impact of Proposals) Act 1974, the National Parks and Wildlife Conservation Act 1975, the Great Barrier Reef Marine Park Act 1975 and the Australian Heritage Commission Act 1975. [5]

2.4 Nevertheless, this legislative role arose on an ad hoc basis as international obligations and national needs had to be fulfilled. [6] Without a direct constitutional head of power, the enactment of environmental legislation has relied in general on a number of constitutional heads of power. Section 51 provides numerous opportunities for the Commonwealth to regulate environmental concerns. Much existing environmental legislation relies on several heads of power under the Constitution to ensure that the legislation does not fail if challenged. [7]

2.5 State challenges to Commonwealth legislation in the environmental field have resulted in court decisions defining the parameters of the Commonwealth's environmental role and responsibilities in an expansive manner. [8] The substantial existing list of exclusive Commonwealth powers provided for under the Constitution enabled the courts to use principles of statutory interpretation to support Commonwealth efforts to regulate the environment.

2.6 An emphasis on cooperative Federalism from the 1980s led to the Intergovernmental Agreement on the Environment (IGAE) on 1 May 1992. This Agreement was a significant development in cooperative environmental relations between the Commonwealth, States and Territories. The IGAE attempted to define the roles of the respective governments in environmental protection through a cooperative approach to the environment and a better definition of the roles of the respective governments. It also aimed to reduce the number of disputes between the Commonwealth and States and Territories over environmental issues, develop a greater certainty of Government and business decision making and achieve better environmental protection. The Agreement focussed on the integration of environmental considerations into government decision making at all levels and aimed to pursue the principles of ecologically sustainable development.

2.7 The IGAE does not constitute a legal document; rather it is considered to be a `political compact'. [9] For this reason it has been difficult to implement the Agreement fully and effectively and to achieve a cooperative approach to environmental management. Issues remaining in need of further clarification include clearer definition of the roles of the Commonwealth and the States, recognition and implementation of the Commonwealth's role in matters of national environmental significance, provision of an accreditation mechanism for State processes, review of triggers for Commonwealth involvement and Commonwealth compliance with State laws.

A Brief Overview of the Evolution of Commonwealth Environment Legislation

2.8 The Commonwealth has enacted over 40 principal pieces of environmental legislation. It is estimated that the Commonwealth has direct and indirect legislative coverage for environmental matters through over 100 Acts. [10] Existing Commonwealth environment protection and conservation legislation covers a wide range of matters including environmental impact assessment, endangered species, heritage and national parks management, as well as giving effect to various international environmental obligations such as trade in wildlife, ozone layer protection and sea dumping.

2.9 In the years 1974-1978, the Commonwealth enacted several key pieces of environmental legislation, including:

• Environment Protection (Impact of Proposals) Act 1974
• Australian Heritage Commission Act 1975
• National Parks and Wildlife Conservation Act 1975

The legislation of the 1970s concentrated principally on establishing statutory office holders, institutions, administrative processes and management approaches.

2.10 In the period 1979 to 1982, a mixture of environment protection and nature conservation legislation was enacted. This legislation covered such issues as whale protection, imports and exports of wildlife, Antarctic resources, sea dumping and Koongarra.

2.11 From 1983 to 1986, only one item of environmental legislation was enacted, the World Heritage Properties Conservation Act 1983. This Act led to the Tasmanian Dams Case. [11] Although this period showed a decline in legislative activity on the environmental front, it did serve as witness to the increasing emphasis on cooperative Federalism and the subsequent desire to deal with matters through political agreement. [12]

2.12 From 1987 to 1990, Australia's international obligations became more significant. Legislation at this time reflected a predominantly environment protection approach, covering such issues as import and export of hazardous wastes, industrial chemicals management and ozone layer protection.

2.13 The period from 1991 to 1994 saw the enactment of two major pieces of legislation, the Endangered Species Protection Act 1992 and the National Environment Protection Council Act 1994. Other legislation enacted during this cycle included the Wet Tropics of Queensland World Heritage Area Conservation Act 1994 and the Great Barrier Reef environmental management charge legislation.

2.14 The period from 1995 until the present has included legislation on ozone licence fees, amendments to the Hazardous Waste (Regulation of Exports and Imports) Act 1989 and the significant Natural Heritage Trust of Australia Act 1997. Most recently, the National Environment Protection Measures (Implementation) Act 1998 received royal assent on 21 December 1998, enabling the implementation of national environment protection measures in respect of certain activities by the Commonwealth.

2.15 As well as the Environmental Protection and Biodiversity Conservation Bill 1998, environmental bills currently before Parliament include the Ozone Protection Amendment Bill 1998 and the Wildlife Protection (Regulation of Exports and Imports) Bill 1998. In addition, the Environmental Reform (Consequential Provisions) Bill 1998 was introduced on 10 December 1998 to provide for the savings and transitional arrangements to accompany the new environmental law regime.

Why the Need for Reform of Commonwealth Environment Legislation?

2.16 While much of existing Commonwealth environmental law is up-to-date and well developed, the reality is that much of it is also rather old, lacking in contemporary notions of environmental protection and contains gaps, inconsistencies and overlaps. Legislative activity has not kept pace with environmental policy trends and developments occurring nationally and internationally. As noted above, some of the most significant Commonwealth environmental legislation was enacted in the 1970s and has not been substantially amended in the past two decades. [13]

2.17 The need to ascertain the role of the Commonwealth in environmental issues has been an issue for some time. As early as 1979, the House of Representatives Standing Committee on Environment and Conservation recommended that Commonwealth involvement in environmental protection should be restricted to geographic areas under the direct control of the Commonwealth, Commonwealth works and activities, activities which the States have referred to the Commonwealth and matters considered by the Commonwealth to be of national significance. The Committee also emphasised the need for the Commonwealth to:

maintain powers that would enable it to intervene in environmental matters of national concern. The Committee further believes that it is for the Commonwealth Government itself to determine if a matter is of national significance. [14]

2.18 In 1983, the need to reform Commonwealth environment legislation and to harmonise conservation and environment protection legislation was recognised by the National Conservation Strategy for Australia.

2.19 In his second reading speech on the Environment Protection and Biodiversity Conservation Bill 1998, the Minister for the Environment, Senator the Hon Robert Hill, stated that:

Reform is necessary because the existing suite of Commonwealth law does not ensure high environmental standards in the areas of Commonwealth responsibility. Just as importantly, the existing legislation does not provide the community with certainty as to the Commonwealth's role, nor does it provide an efficient and timely assessment and approval process. [15]

2.20 Several deficiencies in the current Commonwealth environmental legislative scheme provide a compelling argument for reform. The development of many pieces of earlier legislation was piecemeal rather than part of an integrated conceptual framework. As a result, much of the older legislation no longer reflects current best practice principles and concepts. Much of the legislation only deals with `first-generation' issues rather than taking a more holistic approach to biodiversity conservation in general. Indeed, this older legislation contains few references to `second-generation' issues such as the principles of ecologically sustainable development, biodiversity conservation and access to genetic resources. In the main, the principles of ecologically sustainable development are either not recognised or not adequately implemented to ensure that environmental, economic and social goals are integrated into the development process. [16]

2.21 Moreover, the current suite of legislation does not establish the role of the Commonwealth adequately. In some instances the Commonwealth lacks sufficient legislative capacity to meet its national environmental responsibilities, in areas such as Ramsar wetlands. [17]

2.22 Existing triggers for Commonwealth involvement in environmental matters are further cause for concern in that they are uncertain and imprecise. The possibility of Commonwealth involvement resting only on the existence of a Commonwealth action or decision, such as foreign investment approval, means that the process of project approval and assessment is made uncertain and is often subjected to Commonwealth intervention at a late stage, sometimes when the project is already under way.

2.23 Arguably, the Commonwealth also becomes involved in matters that may be better handled by State, Territory or local governments, especially in those cases where their legislation is more advanced in its environmental approaches than that of the Commonwealth. States and Territories frequently have the infrastructure and experience that the Commonwealth does not have for dealing with numerous environmental issues. However, Commonwealth legislation does not currently recognise the development of comprehensive State and Territory environmental legislation and this prevents integrated approaches to environmental management. [18]

2.24 Many submissions accepted the need for reform of the Commonwealth's environmental legislation. [19] Mr James Pittock of the World Wide Fund for Nature Australia told the Committee that:

WWF welcomes attempts to reform Commonwealth environmental laws. We think that it is long overdue and, indeed, that the Bill contains many welcome measures that in themselves are quite an advance. [20]

2.25 Professor Stephan Schnierer of the College of Indigenous Australian Peoples, told the Committee that:

what the Government is doing in terms of trying to make [environmental management] more cohesive is to be commended. It does reflect what the international thinking is in terms of the protection of the environment. [21]

2.26 Industry representatives also welcomed the need for an overhaul of existing Commonwealth environmental legislation:

The existing legislation suffered from a number of shortfalls, including inappropriate non-environmental triggers, the duplication of Commonwealth and State functions and … uncertain time frames for various approval processes. The other environmental legislation present was at times fragmented and confusing, with many of the environmental management concepts being outdated. [22]

`Saving Our Natural Heritage' and the Government Review Process

2.27 The Government's 1996 pre-election environment policy statement, Saving Our Natural Heritage, contained a commitment to:

Review environmental legislation, as necessary, with the objective of ensuring it reflects the need for world's best environmental practice and actively encourages and promotes environmentally sustainable management. Such reviews will be conducted in consultation with all major stakeholders, including the environmental movement, industry and the States and Territories. [23]

This commitment was also provided in the 1996 Budget statement, Investing in our Natural Heritage.

The COAG Process

2.28 In May 1996, the Council of Australian Governments (COAG) agreed to a Review of Commonwealth/State roles and responsibilities for the environment. The Intergovernmental Committee for Ecologically Sustainable Development (ICESD) appointed a working group to undertake the review and to prepare a report. The Review was intended to focus on a number of key environmental issues which would improve the performance of the Intergovernmental Agreement on the Environment, and to develop a more effective framework for inter-governmental relations on the environment. This was aimed at providing greater certainty for participants in environment issues, minimising duplication of effort to achieve common goals and facilitating improved environmental outcomes.

2.29 The working group called for submissions from the relevant Ministerial Councils and over fifty key non-government environmental and industry organisations in late 1996. Approximately forty submissions were received from conservation, industry, heritage, planning, legal and indigenous organisations. The major conservation and industry organisations formed consortia and lodged consolidated responses. Members of the Working Group also met with some of the key representatives from these organisations and the Minister for the Environment discussed the final position to be put to COAG with environmental groups in late 1997 at the National Environmental Consultative Forum in Canberra. [24]

The COAG Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment

2.30 The COAG meeting of 7 November 1997 resulted in an in-principle endorsement of the Agreement on Commonwealth/State Roles and Responsibilities for the Environment from all Heads of Government and the President of the Australian Local Government Association.

2.31 The Agreement proposes a framework for comprehensive reform of Commonwealth-State roles and responsibilities for the environment. It aims to focus the Commonwealth role on matters of national environmental significance and identifies the Commonwealth's assessment and approval process as a major area for reform. It also agrees that reform is needed in the listing, protection and management of heritage places, compliance with State environmental and planning legislation and better delivery of national environmental programs. [25]

2.32 One of the most important elements of the Agreement is the list of thirty matters of national environmental significance. [26] In that list, there is a subset of environmental matters where it is accepted by all the parties that the Commonwealth should have a role in relation to the assessment and approval of individual actions which may have a significant impact in relation to these matters. Six of the seven matters have been incorporated into the Bill:

• World Heritage properties;
• Ramsar listed wetlands;
• Nationally endangered or vulnerable species and communities;
• Migratory species and cetaceans;
• Nuclear activities;
• Management and protection of the marine and coastal environment.

A further matter of national environmental significance, places of national significance, will be dealt with under the new heritage framework currently under discussion. This matter is discussed in Chapter Three, below.

2.33 The reform process includes the removal of irrelevant and indirect triggers for Commonwealth environmental processes, the reduction of duplication and the streamlining of the approval process. The Agreement also provides for the accreditation of State processes, thereby ensuring a seamless integration of Commonwealth and State environment laws. [27]

2.34 The Commonwealth Government acknowledged the necessity of making changes to its existing environmental legislation quickly in order to implement the Agreement:

There is an expectation, particularly on the part of business and industry, that the Government will introduce legislation quickly to provide certainty of outcome for the review process and deliver its benefits to the community. [28]

The next step taken in the environmental roles and responsibilities process was therefore the development of the Environment Protection and Biodiversity Conservation Bill 1998, which is outlined in the following Chapter.

 

Footnotes

[1] G Bates, Environmental Law in Australia, 4th edition, 1995, p 76.

[2] Bruce W Davis, `Federalism and Environmental Politics: An Australian Overview' in R L Mathews, Federalism and the Environment , 1985, p 2.

[3] TRAFFIC Oceania, Submission 565, p 4: `Australia does not divide up neatly into nine environments … a national oversight by the Commonwealth ensures that the cumulative actions of eight different jurisdictions do not have a negative net effect on matters of national significance.'

[4] Robert J Fowler, Federal-State Relationships in Environmental Management: A Country Study – Australia, paper presented in Kuala Lumpur, Malaysia, 23 August 1996, p 3; Bruce W Davis, `Federalism and Environmental Politics: An Australian Overview', p 2.

[5] Davis terms these four pieces of Commonwealth environment legislation the `cornerstones of national environmental policy', `Federalism and Environmental Politics: An Australian Overview', p 2.

[6] Professor Stephan Schnierer, College of Indigenous Australian Peoples, Proof Committee Hansard, Sydney, 4 February 1999, p 112.

[7] Ross Ramsay and Gerard C Rowe, Environmental Law and Policy in Australia, 1995, p 300.

[8] G Bates, Environmental Law in Australia, pp 79-80.

[9] G Bates, Environmental Law in Australia, p 98; Ross Ramsay and Gerard C Rowe, Environmental Law and Policy in Australia, p 304.

[10] Robert J Fowler, Federal-State Relationships in Environmental Management: A Country Study – Australia, p 3.

[11] Commonwealth v Tasmania (1983) 46 ALR 625.

[12] G Bates, Environmental Law in Australia, p 97.

[13] Senator the Hon Robert Hill, Minister for the Environment, Reform of Commonwealth Environment Legislation: Consultation Paper, February 1998, p 1.

[14] House of Representatives Standing Committee on Environment and Conservation, Environmental Protection: Adequacy of Legislative and Administrative Arrangements, First Report, October 1979, p 39.

[15] Senator the Hon Robert Hill, Minister for the Environment, Senate Hansard, 2 July 1998, pp 4795-4796.

[16] Professor Stephan Schnierer, College of Indigenous Australian Peoples, Proof Committee Hansard, Sydney, 4 February 1999, p 112; Explanatory Memorandum, pp 6-7.

[17] Explanatory Memorandum, p 6; Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1998, p 159.

[18] Explanatory Memorandum, p 6; Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1999, p 159.

[19] For example, The Institution of Engineers Australia, Submission 563, p 1; Environmental Defender's Office Ltd, Submission 15, p 1; Australian Council of National Trusts, Submission 40, p 1; South Australian Fishing Industry Council Inc (SAFIC), Submission 622, p 4.

[20] Mr James Pittock, World Wide Fund for Nature Australia, Proof Committee Hansard, Canberra, 4 March 1999, p 129.

[21] Professor Stephan Schnierer, College of Indigenous Australian Peoples, Proof Committee Hansard, Sydney, 4 February 1999, p 112.

[22] Mr Steven Waller, Woodside Energy Ltd, Proof Committee Hansard, Perth, 26 February 1999, p 66. Also, Mr David Buckingham, Business Council of Australia, Proof Committee Hansard, Melbourne, 18 March 1999, pp 308–309.

[23] Coalition Policy Document, Saving Our Natural Heritage, 1996.

[24] Explanatory Memorandum, p 17.

[25] Council of Australian Governments, Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment, 1997, item 1.

[26] Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment, 1997, Attachment 1, Matters of National Environmental Significance, Parts I and II.

[27] Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment, 1997, Attachment 1, Matters of National Environmental Significance, item 5; Senator the Hon Robert Hill, Minister for the Environment, Senate Hansard, 2 July 1998, p 4796.

[28] Explanatory Memorandum, p 8.