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.
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