Chapter Eleven
Administration
Precautionary Principle and the Principles of Ecologically Sustainable
Development
11.1 The Bill legislates for the precautionary principle. It must be
taken into account under fourteen listed areas where the Minister has
decision making powers. The Bill defines the precautionary principle as:
`that lack of full scientific certainty should not be used as a reason
for postponing a measure to prevent degradation of the environment where
there are threats of serious or irreversible environmental damage'. [1]
Inappropriate Definition of the Precautionary Principle
11.2 Industry submissions were concerned that the precautionary principle
is not properly defined in the Bill. The Minerals Council of Australia
stated that: `The critical words “cost-effective” have been
left out … In this way, the Bill adopts, for the first time within
Australian law, its own variation on the theme of the precautionary principle.'
[2]
11.3 The Committee does not agree that the definition of the precautionary
principle in the Bill is inappropriate. There is no single definition
of the precautionary principle in international agreements. [3]
The definition in the Bill closely reflects the definition under the National
Strategy for Ecologically Sustainable Development, which was endorsed
by the Council of Australian Governments after considerable consultation
with all sectors of the community:
Where there are threats of serious or irreversible environmental damage,
lack of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation. [4]
11.4 The Committee also notes that where decisions must take into account
the principles of ecologically sustainable development, such as the giving
of approvals under Part 9 of the Bill, the Minister must consider the
adoption of `cost-effective and flexible measures' in accordance with
clause 134(3)(vi).
Other ESD Principles
11.5 A number of submissions considered that the Bill does not adequately
implement other principles of ecologically sustainable development:
The principles of ecologically sustainable development have been incorporated
into the Bill in an almost token fashion. While the Bill requires the
Minister to have regard to the precautionary principle in making some
decisions under the Bill, there are other principles which have not been
referred to. In particular, considerations of intergenerational equity
should be included as a matter for consideration by the Minister in making
decisions under the Act. [5]
11.6 The Committee disagrees with the claim that the principles of ecologically
sustainable development have been implemented in a token fashion. From
the outset, the objects of the Bill provide for the promotion of ecologically
sustainable development in clause 3(1)(b). In interpreting a provision
of the Bill, preference must be given to a construction that promotes
the purpose or object. [6]
11.7 Clause 136(2)(a) provides that the principles of ecologically sustainable
development must be taken into account when the Minister makes decisions
about an approval or conditions to be attached to an approval. The principles
of ecologically sustainable development must also be considered in making
recovery plans (clause 270(3)(c)), threat abatement plans (clause 271(3)(c)),
wildlife conservation plans (clause 287(3)(c)), and conservation orders
(clause 464(3)).
11.8 The principles set out under clause 136(3) have been drawn directly
from the National Strategy for Ecologically Sustainable Development, as
agreed by the Commonwealth and States and Territories following extensive
consultation with all sectors of the community. Clause 136(3) includes
the principles of inter-generational and intra-generational equity.
11.9 The Committee believes that indiscriminate application of the principles
of ecologically sustainable development would be inappropriate, for example
in the listing of endangered species, where the Bill currently requires
the Minister to consider only matters that relate to the survival of the
species. Introducing a requirement also to consider the principles of
ecologically sustainable development in that situation would complicate
the decision and deviate from the real intent of ensuring that the species
survives.
11.10 The Bill is consistent with the Government's commitment to legislate
for the principles of ecologically sustainable development. [7]
The principles of ecologically sustainable development form an integral
part of the Bill and the Committee feels that they have been applied to
appropriate provisions in the Bill.
Enforcement
11.11 Many submissions supported the inclusion of strong enforcement
provisions in the Bill, but expressed doubt about the likelihood of these
provisions being used to their full extent:
The enforcement regime is strong and the penalties are substantial. However,
experience shows prosecutions are rare and penalties are usually insignificant
and far from the maximum legislated for. [8]
11.12 The Committee considers that this concern does not relate to the
content of the Bill itself, rather it concerns implementation and enforcement.
The Bill contains a number of new offence provisions, and establishes
a more efficient and integrated permit and enforcement regime than is
possible under the current separate pieces of legislation. It employs
an improved range of enforcement tools and remedies. This expanded range
should overcome current problems in some existing legislation where the
only enforcement choices available are either to take no action or totally
prohibit an activity. [9]
11.13 The Bill has signalled a clear intent to treat environmental breaches
as serious matters, with appropriately high penalties. Undoubtedly, courts
will recognise this intent and reflect it accordingly in their judgments.
The Committee considers that the reinvigorated enforcement regime under
the Bill will result in improved compliance.
Wardens, Rangers and Inspectors
Qualifications
11.14 The Bill provides for the appointment of wardens, rangers and inspectors
and sets out their enforcement functions and powers. [10]
11.15 A number of witnesses suggested that the Bill should specify the
minimum qualifications, training or experience required by persons appointed
as wardens, rangers and inspectors, in view of the powers which these
officers can exercise. [11]
11.16 The Committee does not consider that it is either necessary or
appropriate to have the Bill include such specifications. These are administrative
matters which are inherent in the appointment process itself. The Minister
is responsible for ensuring that actions taken under the Bill are fulfilled
properly, and would ensure the choice of appropriately qualified personnel
for these tasks.
Powers
11.17 Some industry submissions suggested that the powers of authorised
officers were too wide. [12] They had particular
concerns with powers relating to boarding of vessels, inspection, seizure
of goods and monitoring of compliance:
Similarly, the ability to retain (s446) or dispose (s449) is of concern,
particularly as it applies to Australian Platforms. This is not only very
confrontational for the owners or operators of such Platforms, but again
introduces a degree of Sovereign Risk into any investment decision. [13]
11.18 The Committee does not consider that the powers provided for authorised
officers under the Bill are too wide. They are necessary for the efficient
enforcement of the Bill. They exist in every other jurisdiction and it
would be detrimental to the implementation of the Bill if these powers
were not provided for under this Bill. The Bill also provides for the
Commonwealth to enter into arrangements allowing State and Territory officers
to perform the functions, and exercise the powers, of inspectors, rangers
and wardens. [14]
National Wildlife Service or Automatic State and Territory Inspectors
11.19 TRAFFIC Oceania suggested that the Bill establish a national wildlife
inspection or enforcement unit similar to the United States Fish and Wildlife
Service. [15] Alternatively, they suggested that State wildlife
inspectors be automatically appointed as inspectors under the Bill.
11.20 The Committee believes that it would be inappropriate for the Commonwealth
to establish an agency similar to the US Fish and Wildlife Service. The
Committee notes that the US agency employs approximately 7,500 people
at facilities right across the United States, including seven regional
offices and nearly 700 field units and installations. [16] Among these are national wildlife refuges and fish
hatcheries, ecological field offices, and law enforcement offices.
11.21 Clearly, the Australian context is very different. The Commonwealth
Government does not have the same regulatory or enforcement role in wildlife
management as the US Federal Government. The creation of a US-style body
would require a large allocation of Commonwealth resources beyond what
is currently available and would duplicate existing State and Territory
wildlife enforcement services.
11.22 It would also be inappropriate to make State and Territory officers
ex officio wildlife inspectors under the Bill, as the Commonwealth
has no power to direct State and Territory departments or agencies unilaterally
to perform Commonwealth functions or to require the expenditure of State
and Territory resources on those functions. The Bill makes adequate provision
for the Minister to enter into an arrangement with the appropriate Minister
of a State or Territory to enable State and Territory officers to be inspectors.
Directed Environmental Audits
11.23 The Bill provides for directed environmental audits. [17]
The Minister can require the holder of an environmental authority to carry
out an audit if the Minister believes, or suspects on reasonable grounds,
that the holder has contravened, or is likely to contravene, a condition
of the authority. [18] The Bill also deals
with the appointment of an auditor, the carrying out of the audit, the
nature of the audit and the audit report.
11.24 Industry groups submitted that the audit provisions are not in
line with modern practice in the area of environmental audits. They considered
the auditing provisions to be heavy-handed, old-fashioned and encroaching
on State and Territory responsibilities. [19]
11.25 Contrary to the above claims, the Committee considers that the
audit provisions in the Bill are in line with contemporary environmental
legislation across Australia. For example, the provisions are equivalent
to environmental auditing provisions under the New South Wales Protection
of the Environment Operations Act 1998 and the Australian Capital
Territory's Environment Protection Act 1997. [20]
Some States have significantly higher penalties for audit-related offences
than those in the Bill.
11.26 Directed environmental audits will enable the Commonwealth to investigate
possible breaches of environmental authorities for which the Commonwealth
alone has responsibility. This is a legitimate role for the Commonwealth
and will not impact on State and Territory responsibilities.
11.27 The Committee notes that the audit provisions will not apply to
approvals which have been granted by a State or Territory pursuant to
a bilateral agreement. In such cases the State or Territory alone will
be responsible for monitoring compliance with, and investigating breaches
of, approval conditions.
Conservation Orders
11.28 Conservation orders enable the Minister to control activities and
to require people to take specified actions in Commonwealth areas, in
order to protect listed threatened species or ecological communities.
In making a conservation order, the Minister must be satisfied that making
the order is justified and have regard to economic and social considerations
consistent with the principles of ecologically sustainable development.
The Minister must also consult with any relevant Commonwealth agencies
and must seek the Secretary's advice. Where a delay might cause significant,
irreparable damage to a listed threatened species or threatened ecological
community, the Minister does not have to consult or seek advice. [21]
Scope Too Narrow
11.29 Conservation groups argued that the Bill should provide for conservation
orders to protect any of the matters covered by the Bill, and that such
orders should apply beyond Commonwealth areas. [22]
11.30 The Committee notes that the relevant provisions in the Bill have
been carried over from the Endangered Species Protection Act 1992.
Conservation orders are a useful means for requiring beneficial actions
to be undertaken and prohibiting or restricting harmful activities in
relation to listed threatened species. [23] However, they are only an adjunct to recovery plans
and threat abatement plans, which are the principal tools for protecting
threatened species and communities.
11.31 The Committee considers that it is unnecessary to expand the scope
of conservation orders to include other matters covered by the Bill. In
the Committee's view, the Bill already provides for sufficient mechanisms
to regulate activities with respect to matters protected under the Bill,
including the requirement for approvals following environmental assessment,
management plans for protected areas, wildlife conservation plans, and
relevant offence provisions.
11.32 The Committee does not see the extension of conservation orders
beyond Commonwealth areas as appropriate because State and Territory legislation
already provides for similar orders. [24]
Standing
Injunctions and Judicial Review (Clauses 475 and 487)
11.33 Current environmental legislation encompasses a range of approaches
to standing in relation to judicial review of government decisions and
the ability to seek an injunction to prevent a breach of legislation.
The Bill provides for a consistent approach to standing based on the provisions
of the Hazardous Waste (Regulation of Exports and Imports) Amendment
Act 1996. [25] Clause 475 of the Bill enables
the Minister, an interested person or a person acting on behalf of an
unincorporated organisation that is an interested person, to apply for
an injunction in relation to a contravention of the Bill. Under clause
475(6) the definition of an `interested person' includes not only individuals
and organisations whose interests are affected by the alleged contravention,
but also those that have engaged in a series of activities for protection
or conservation of, or research into, the environment at any time in the
previous two years (in the case of an organisation, its objects or purposes
must also have included the protection or conservation of, or research
into, the environment).
11.34 Clause 487 similarly extends, but does not limit, the meaning of
the term `person aggrieved' under the Administrative Decisions (Judicial
Review) Act 1977 (ADJR Act).
11.35 The Committee notes that two divergent views arose with respect
to the standing provisions. While industry and some State Governments
argued that the Bill has extended standing provisions too far, conservation
groups argued that standing should be available to `any person'.
Standing Too Wide
11.36 Those who objected to the extension of standing argued that the
provisions would increase the likelihood of frivolous and vexatious litigation,
thereby delaying environmental assessment and approvals. [26]
11.37 The Committee does not agree with the claims that the standing
provisions will `open the floodgates' of litigation. [27]
The Committee notes that the standing provisions under the Bill are consistent
with those already provided in existing Commonwealth environmental legislation,
such as the Hazardous Waste (Regulation of Exports and Imports) Act
1996. As such, this approach to standing has already been successfully
used by the Commonwealth and does not represent a radical departure from
current legislation.
11.38 The Committee considers that there are adequate safeguards to prevent
vexatious litigation under the Bill. Where a person is not an `interested
person' or `aggrieved person' in the meaning applied by the courts or
given under the ADJR Act, the Explanatory Memorandum makes it clear that
the person must demonstrate a genuine and consistent pattern of activities
related to the protection or conservation of the environment. [28] Courts also have the capacity to screen out vexatious
and frivolous applicants seeking injunctions and judicial review. In deciding
whether or not to award an injunction, the court must have regard to the
effects on both parties. [29] Court costs that may be awarded against the applicant
also serve to deter vexatious litigation.
Standing Too Narrow
11.39 Those who supported standing for `any person' argued that it is
inappropriate to prevent individuals with a legitimate interest in a government
decision or contravention of the Bill from taking action if they could
not demonstrate an involvement in activities relating to environment protection
and conservation over the previous two years:
Why should standing be refused to a person who may have a legitimate
interest in having a decision reviewed merely because the person has not
in the prior two years `engaged in a series of activities' (whatever that
means) `for protection or conservation of or research into the environment'?
NELA encourages the Government to follow the lead taken in various State
legislation to enable `any person' to take proceedings to enforce compliance
with the Act. [30]
11.40 The Committee notes that the Bill requires a person with standing
to have an interest in a government decision or alleged contravention,
which is beyond that of an ordinary member of the public. The Committee
considers that the requirement for involvement in environmental or conservation
activities at any time in the previous two years is not unreasonable and
is a test likely to be met by any person or organisation genuinely seeking
to use the Bill's provisions for environmental protection and conservation
purposes. In the case, suggested by the Law Council of Australia, of a
recently formed group with a legitimate grievance, it is clear that standing
provisions under the ADJR Act would still enable persons whose interests
are adversely affected by a decision, such as residents and landowners,
to seek judicial review. [31]
11.41 The Committee concludes that the standing provisions of the Bill
reach a fair balance between enabling public involvement in enforcement
of the Bill and ensuring that decisions under the Bill are not unnecessarily
delayed or impeded by vexatious litigation. The Bill also provides certainty
as to which persons have standing.
Undertakings as to Damages
11.42 Numerous industry submissions raised a concern with clause 478
of the Bill, which states that the Federal Court cannot require an applicant
for an injunction to give an undertaking as to damages as a condition
of granting an interim injunction. [32]
11.43 An interim injunction is a holding order, made to `preserve the
status quo pending a final determination of the merits of the case at
trial.' [33] In the area of environmental law,
interim injunctions are useful as they enable any change to the environment
resulting from a contravention of environmental legislation to be stopped
on a temporary basis before the final determination of the court. [34] This is especially important where the potential
for damage may be irreversible, for example where an action may cause
the extinction of a species or ecological community.
11.44 The requirement that there be an undertaking as to damages in the
area of environmental protection has not been amenable to the public interest
nature of bringing an action to prevent a breach against an environmental
statute:
This rule has its origins in private litigation where the court needs
to strike a balance between competing private interests, but once again
it may be seen as anomalous in public interest litigation where the applicant
is not seeking any personal advantage. Traditionally, refusal to give
such an undertaking will generally result in the court's discretion being
exercised against the plaintiff, especially where the complainant is a
private individual rather than the Crown. … if persons are deliberately
encouraged by statutory provisions … to assist in enforcement of
public environmental law, restrictive common law rules which discourage
such participation should be relaxed. … public interest litigants
are usually at a financial disadvantage from the outset in funding the
costs of litigation without having to find extra funds for a bond. [35]
The Committee considers that requiring undertakings as to damages would
be an unnecessary hurdle to persons or organisations seeking to enforce
provisions of the Bill in the public interest. As noted above, there are
adequate safeguards against vexatious or unsupported applications.
Damage to the Environment
11.45 Clause 479 provides that the Federal Court may grant a prohibitory
or mandatory injunction in relation to a contravention of the Bill, whether
or not there is a significant risk of injury or damage to human beings
or the environment.
11.46 A number of submissions have expressed a concern with this provision:
SAFIC strongly opposes the premise in (s479) that damage to the environment
does not need to be considered before the granting of an injunction. Industry
cannot exist under such insecure processes. The wording from the Endangered
Species Protection Act should be retained. [36]
11.47 The Committee does not agree with this view. Clause 479 will ensure
that courts are not tied up in arguments as to whether the damage resulting
from a contravention of the Bill is likely to be significant or not. It
is sufficient to establish that the action in question is a breach of
the Bill.
Merits Appeals
11.48 A number of submissions argued that merits appeals should be incorporated
into the Bill, including in relation to listing decisions. [37]
Most of the requests for merits appeals related to the existing merits
appeals provisions under the Endangered Species Protection Act 1992,
sections 94 to 96, pertaining to permits:
All rights to third party merit appeals have been stripped under the
Bill. These rights currently exist under the Endangered Species Protection
Act (see s96) and the Whale Protection Act (s18). The Bill contains a
number of provisions that allow permits to kill, injure, take, trade,
keep or move listed species, ecological communities, migratory species,
whales and other cetaceans, and marine species. (See Chapter 5, Division
1, Subdivision B; Chapter 5, Division 2, Subdivision B; Chapter 5, Division
3, Subdivision F; Chapter 5, Division 4, Subdivision B). These should
continue to be subject to third party merit appeals. Some other decisions
under the Bill ought to be made subject to third party merits review.
These include decisions not to assess proposals, and decisions as to the
adequacy of EIA documents. [38]
11.49 The Committee notes the concerns relating to provision of merits
appeals under the Bill. The Committee notes, however, that the Bill essentially
maintains the status quo in relation to merits review of decisions in
existing legislation. For example, merits review is not available currently
under the EPIP Act, the National Parks and Wildlife Conservation Act (although
it is available for some decisions under the regulations) and the World
Heritage Properties Conservation Act. There are provisions for limited
merits review under the Endangered Species Protection Act and the Whale
Protection Act.
11.50 The Committee does not think that it would be appropriate to extend
the current situation for merits review in the Bill. In particular, merits
review of assessment and approvals decisions would involve unnecessary
delays and uncertainty. Merits review of listing decisions would also
frustrate the purpose of the listing process. The status quo should be
maintained, especially in light of the availability of judicial review
for all decisions made under the Bill.
11.51 The Committee does note, however, that merits appeals in relation
to application for permits or cancellation of permits to undertake actions
in relation to threatened species and communities currently exist, but
are not continued under the Bill. The Consultation Paper indicated that
merits review, consistent with the established Commonwealth position,
would not be expanded beyond those environmental decisions that are already
subject to merits review. As such, the Committee considers that it would
be preferable that sections currently enabling merits review of threatened
species permit applications and cancellations are retained under the Bill.
[39]
Recommendation 28
The Committee recommends that existing provisions in the Endangered
Species Protection Act 1992 relating to merits review for permits
be reintroduced into the Bill.
Civil Penalties
11.52 Under the Bill the Minister can apply on behalf of the Commonwealth
to the Federal Court for an order that a person contravening a civil penalty
provision of the Bill pays a pecuniary penalty to the Commonwealth. [40]
In determining the level of the pecuniary penalty, the Court must have
regard to all relevant matters, including the nature and extent of the
contravention, any loss or damage, the circumstances in which the contravention
took place and whether the person has previously been found by the Court
to have engaged in any similar conduct in proceedings taken under the
Bill. [41] Civil penalty provisions are expressed
to be so by the relevant provisions within the Bill. Contravention of
a civil penalty provision is not an offence under the Bill. [42]
11.53 The use of civil penalties under the Bill has been recognised as
a beneficial addition by a number of submissions. For example, the Environmental
Defender's Office saw merit in the fact that `the civil standard is lower
than the criminal standard of proof, and therefore easier to demonstrate.'
[43] Professor Robert Fowler considered it
to be an innovative provision, `because it provides an informal and more
effective means of enforcement than does criminal prosecution.' [44]
11.54 On the other hand, there was concern that the use of civil penalties
in relation to serious environmental contraventions would signal that
`we as a society do not regard offences affecting the environment with
the same seriousness as other offences'. [45] It was also suggested that the Bill be amended
to:
allow the prosecuting authority the choice of civil or criminal proceedings,
depending on seriousness, for those offences where only civil proceedings
are currently prescribed. In addition, amend cl 483, and insert criminal
sanctions in clauses where only civil penalties are currently provided.
[46]
11.55 The Committee does not agree that the use of civil penalties under
the Bill lessens the seriousness of environmental offences. Civil penalties
will increase the chances of a successful action in the court, given the
lower burden of proof. Civil penalties also carry very high monetary value:
for example, $5.5 million for a body corporate and $550,000 for an individual.
[47]
11.56 The Committee does consider, however, that it would be beneficial
for the prosecuting authority to be able to make a choice as to whether
or not to take civil or criminal proceedings, depending on the seriousness
of the offence charged. This would enable an expert decision to be taken
on the merits of a case and the likelihood of conviction for an alleged
offence.
Recommendation 29
The Committee recommends that in relation to environmental protection,
consideration be given to amending the Bill to provide for the prosecuting
authority to have a choice between civil and criminal proceedings in consideration
of the seriousness of the offence.
Duty to Provide Accurate Information
11.57 Part 17, Division 17 makes it an offence punishable by imprisonment
for a term of up to two years or a fine of up to $13,200, to provide false
or misleading information in response to a requirement or request under
Parts 7, 8, 9 or 16. It is also an offence to provide false or misleading
information in response to a requirement to provide information to an
environmental authority or to an authorised officer, the Minister, an
employee or officer of the Department or a commissioner carrying out a
duty under the Bill.
11.58 A defence is available under clause 492. Where the person who provided
the information or documentation has explained to the person receiving
it that it is false and misleading and in what way it is false and misleading,
this can be used as a defence to the charge.
11.59 The Environmental Defender's Office foresaw a possibility of the
defence under clause 492 being abused:
Cl 492 provides a recipe for abuse of the documentary provisions of the
Bill and for confusion and deception of people subsequently reading the
documents. It allows for provision of misleading documents in certain
circumstances, providing the misleading parts are explained to the person
to whom the information was provided. However, if the documents are obtained
under FOI, or as part of the Court process, any such explanation will
not be available. [48]
11.60 The Committee disagrees with this assessment. The defendant bears
the evidentiary burden of proving that an explanation was given as to
how information or a document was false and misleading. The Committee
is confident that all necessary administrative steps will be taken to
ensure that any such explanation will be properly documented and available
under FOI legislation, where the legislation applies.
Liability of Corporate Officers
11.61 Division 18 of Part 17 of the Bill makes provision for the liability
of corporate officers. In certain circumstances, the executive officers
of a body corporate will be liable for contravention by the body corporate.
The Bill provides for civil and criminal penalties and a defence of due
diligence is available.
11.62 Industry submissions raised a concern that the definition of an
executive officer under clause 493 was so wide that it could include any
employee of a corporation. [49]
11.63 The Committee emphasises that an employee of a body corporate must
be concerned in or take part in the management of the body. Thus,
if an officer has an ability to influence the management of the body corporate,
it is reasonable to assume that that person is under a duty of care to
carry out the managerial functions in a responsible manner. The Bill provides
a list of actions to assist the court in determining whether or not an
executive officer took reasonable steps to prevent the contravention and
these actions reflect the contemporary management processes that most
bodies corporate are likely to have implemented. [50]
Remedying Environmental Damage
11.64 Part 18 of the Bill provides for remedying environmental damage.
If the Minister suspects that an act or omission constitutes a contravention
of the Bill or the regulations, the Minister may cause to be taken such
steps as he or she thinks proper to repair or remove any condition, to
mitigate damage or to prevent any damage that arises or is likely to arise
from the act or omission. [51]
11.65 In addition, a person who contravenes the Bill is liable to another
person who suffers loss or damage as a result of the contravention. [52]
The amount must be equal to the other person's loss or damage.
11.66 The Minerals Council of Australia submitted that the provision
concerning liability for loss or damage caused by a contravention would
increase the potential for vexatious claims. [53]
The Australian and New Zealand Minerals and Energy Council felt that State
legislation adequately provides for remedial action for environmental
damage and that the Commonwealth did not need to be involved in this.
[54]
11.67 Liability for loss or damage does not arise under clause 500 unless
the wrongdoer has contravened either a criminal offence or a civil penalty
provision in the Bill. The Committee would therefore see it as reasonable
that the wrongdoer be liable to pay an amount covering the loss or damage
caused by a contravention of the Bill. The amount is payable only to affected
parties who suffer loss or damage and will not therefore involve non-genuine
vexatious claims.
11.68 It is appropriate that the Commonwealth have the ability to seek
remedial action under the Bill subsequent to contraventions of the Bill.
It would be unusual and irresponsible to insist that the Commonwealth
not have this ability to remedy damage and be able to recover any debt
created from remedying a breach of the Bill.
Committees Established Under the Bill
11.69 The Bill makes provision for the creation of two principal organisations,
the Threatened Species Scientific Committee and the Biological Diversity
Advisory Committee. [55] In addition, the Bill also enables the Minister
to establish advisory committees. [56]
Threatened Species Scientific Committee
11.70 The Bill establishes a Threatened Species Scientific Committee.
The Committee has an advisory role in relation to a number of matters
set out in the Bill. [57] The Minister is to determine the composition and
qualifications of members of the Committee in writing. [58]
11.71 The composition of the Scientific Committee has concerned a number
of submitters. State and Territory governments have suggested that they
have the opportunity to select members of the Committee. [59]
Some submissions sought direct community involvement on the Committee.
[60] Indigenous groups were concerned that
provision has not been made for the inclusion of an indigenous representative
on the Committee. [61]
11.72 The Committee notes the concern that particular representatives
seek assurance of inclusion on the Scientific Committee. The purpose of
the Scientific Committee is to provide scientific advice. The Bill enables
the Minister to choose the appropriate members of the Scientific Committee
as the needs arise. There is nothing to prevent the inclusion of community,
indigenous and other representatives on the Scientific Committee if the
Minister considers their inclusion beneficial to the functions to be carried
out by the Scientific Committee.
11.73 The Committee does not think that the Bill should be amended to
provide for States and Territories to choose members of the Scientific
Committee. The Committee feels that this would create a potential for
delays in settling membership and as it is principally a Commonwealth
committee, it is appropriate that the Minister select its members.
Biological Diversity Advisory Committee (BDAC)
11.74 The Bill establishes a new Biological Diversity Advisory Committee
to advise the Minister on matters relating to the conservation and ecologically
sustainable use of biological diversity; and to perform such other functions
as are conferred on the Committee by the Bill or its regulations. [62]
The BDAC is currently an administrative body. [63]
11.75 The Bill sets out the membership requirements of the BDAC. The
Minister must ensure that the membership includes members appointed to
represent the Australian and New Zealand Environment and Conservation
Council (ANZECC), conservation organisations that are not authorities
of the Commonwealth or of any State or Territory, the scientific community
(both terrestrial and marine), the rural community, the business community
and the Commonwealth. [64]
11.76 The Committee notes that there has been some concern about the
membership of the BDAC. The current BDAC has requested input into the
establishment of the new BDAC and has raised a concern that local government
and indigenous representatives have not been included in the BDAC. [65]
Indigenous people have also requested the inclusion of indigenous representation
on the BDAC. [66] The Australian Local Government
Association also sought representation on the BDAC.
11.77 The Committee notes the concern of the current BDAC seeking input
into the new BDAC but that remains a matter for the Minister and does
not concern the Bill.
11.78 The Committee notes that the Bill has made provision for a wide
group of representatives. The Committee considers that community involvement
will be assured through the inclusion of conservation organisations and
the rural community provisions. The role of local government will be recognised
in several ways, such as through the ANZECC members, conservation organisations
and the rural community. The Committee notes that the required membership
is not exclusive of any other members that the Minister considers to be
appropriate either.
11.79 The Committee considers, however, that the Bill should also provide
for representation of indigenous people on the BDAC as a specific requirement,
in recognition of the significant contribution made by indigenous people
to the conservation and sustainable use of biodiversity.
Recommendation 30
The Committee recommends that the Bill be amended to make provision
for the inclusion of an indigenous representative on the Biological Diversity
Advisory Committee in recognition of the significant contribution made
by indigenous people to the conservation and sustainable use of biodiversity.
Advisory Committees
11.80 The Committee notes that the Bill enables the Minister to establish
an advisory committee to provide advice on specified matters relating
to the administration of the Bill, except in relation to the management
of a cooperatively managed reserve. [67] The Minister is able to determine the composition
and necessary qualifications of the advisory committee members in writing.
[68]
11.81 Similar concerns were raised in relation to the composition of
advisory committees as with the Committees discussed above. The main concern
raised related to the need for inclusion of indigenous representatives
on the Advisory Committees. [69] Some submissions also called for the creation of
an Indigenous People's Committee. [70]
11.82 The Committee notes this concern. The Committee does not consider
that it would be appropriate to establish a separate indigenous people's
committee. Clearly the Minister can determine the composition of any advisory
committee set up under the Bill and the Minister will give due consideration
to the inclusion of indigenous people where their interests are concerned.
The advisory committee membership is left open under the Bill and the
Committee does not think that it would be appropriate to specify any particular
sector of the community as requiring inclusion on the committee as this
will obviously depend on the functions required of the committee at the
relevant time.
Ethics Committee
11.83 Several submissions also sought the inclusion of an animal ethics
committee as part of the Bill's committee structure:
AA recommends a national committee be established, with adequate nominees
from the major national animal welfare organisations (including AA) to
assist the Minister with the assessment of proposals which include animal
welfare aspects. [71]
11.84 The Committee notes this request. The Committee considers, however,
that adequate structures are already in place for regulating the animal
welfare aspects of research. The NHMRC Australian Code of Practice for
the Care and Use of Animals for Scientific Purposes provides a code to
ensure the humane care of animals used for scientific purposes. [72] It was prepared by a joint working party consisting
of such bodies as the CSIRO, the Australian Research Council, the Australian
Vice-Chancellor's Committee and representatives of State and Territory
governments and animal welfare organisations.
11.85 The Code is applicable, among other things, to research, field
trials and environmental studies. It establishes Australian Ethics Committees
to verify that the case for animal use is justified and to ensure adherence
to the principles of Replacement, Reduction and Refinement. Any research
institute using animals must be registered and have an Animal Ethics Committee.
11.86 In addition, the Department of Agriculture, Fisheries and Forestry
has a National Consultative Committee on Animal Welfare to assess and
advise the Commonwealth Government on the national implications of welfare
issues affecting animals, including advising on the effectiveness of national
codes of practice, guidelines and legislation to safeguard or further
the welfare of animals and liaising with other bodies such as the Agriculture
and Resource Management Council of Australia and New Zealand's Animal
Welfare Committee.
11.87 The Committee considers that animal welfare issues are most effectively
addressed through the current structures. The Committee suggests, however,
that the Minister may wish to give consideration to requiring adherence
to the NHMRC guidelines when issuing permits that involve animal welfare
issues.
Research
11.88 The Committee notes that some concern has been raised about the
need for recognition of the importance of research and guaranteed funding:
there appears to be no general or specific commitment in the Bill to
support needed research. It is implied in relation to strategic assessments,
the making of lists of threatened species and threat and abatement plans
and international the establishment of the Scientific Committee, etc but
not stated clearly in relation to any section. [73]
11.89 The Committee believes that the Bill adequately recognises the
importance of research. It is clear that research is considered to play
a significant role within the Bill. For example, research will be a key
activity in the identification and monitoring of components of biodiversity
(clause 171), and the preparation of inventories and surveys of species
on Commonwealth land (clause 172) and in Commonwealth marine areas (clause
173). Considerable research is also drawn upon in the development of the
various plans for species and protected areas and bioregional plans.
11.90 The provision of funding for research is not a matter for this
Bill to cover. Budgetary allocations are dealt with through appropriations
bills.
Senator Alan Eggleston
Chair
Footnotes
[1] Clause 391.
[2] Minerals Council of Australia, Submission
335, p 28. Also, Dr Gordon Brown, Australian Academy of Technological
Sciences and Engineering, Proof Committee Hansard, Melbourne, 18
March 1999, p 288; Ms Rosemary Streeter, New South Wales Minerals Council,
Proof Committee Hansard, Sydney, 4 February 1999, p 101.
[3] Warwick Gullett, `Environmental Impact Assessment
and the Precautionary Principle: Legislating Caution in Environmental
Protection', Australian Journal of Environmental Management, 1998
Vol 5, p 147.
[4] National Strategy for Ecologically Sustainable
Development, 1992, p 8.
[5] National Environmental Law Association,
Submission 522, p 2. Also, Law Council of Australia, Submission 610, p
4; Blue Mountains Conservation Society, Submission 250, p 2; Environmental
Defender's Office, Submission 15, pp 4, 46; Ms Rachel Cowling, Submission
5, p 2.
[6] Section 15AA, Acts Interpretation Act
1901 (Cth).
[7] See section 21 of the Natural Heritage
Trust of Australia Act 1996, and Coalition Policy Document, Our
Living Heritage, 1998, p 31.
[8] Canberra and South East Region Environment
Centre, Submission 295, p 1. Also, Mr Peter Saffin, Submission 26, p 2;
Australian Conservation Foundation Gold Coast Inc, Submission 156, pp
5-6; Lane Cove Bushland and Conservation Society Inc, Submission 526,
p 1; Associate Professor Janet McDonald, Submission 152, p 6; Curl Curl
Lagoon Friends Inc, Submission 85, p 1.
[9] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment D, p 10.
[10] Clauses 392-402.
[11] For example, Animals Australia, Submission
384, p 6; Otway Planning Association, Submission 502, p 4; The Coastwatchers
Association Inc, Submission 24, p 7.
[12] For example, Woodside Energy, Submission
504, p 13; Association of Mining and Exploration Companies Inc, Submission
436, p 29; Mr Steven Waller, Woodside Energy, Proof Committee Hansard,
Perth, 26 February 1999, p 68.
[13] Woodside Energy, Submission 504, p 13.
Woodside Energy also suggests that authorised officers be made to conduct
their duties `according to facility and company safety rules'.
[14] Clauses 393, 398.
[15] TRAFFIC Oceania, Submission 565, p 12;
Ms Jane Holden, TRAFFIC Oceania, Proof Committee Hansard, Sydney,
4 February 1999, p 91.
[16] See `Activities – U.S. Fish and
Wildlife Service', .
[17] Part 17, Division 12.
[18] Clause 458.
[19] For example, Minerals Council of Australia,
Submission 335, p 29; Association of Mining and Exploration Companies
Inc, Submission 436, p 30; Australian and New Zealand Minerals and Energy
Council, Submission 545, p 25; Woodside Energy Ltd, Submission 504, p
13.
[20] Also, Environmental Protection Act
1994 (Qld), section 72; Environmental Management and Pollution
Control Act 1994 (Tas), section 30; National Environment Protection
Measures (Implementation) Act 1998 (Cth).
[21] Clause 464.
[22] Environmental Defender's Office, Submission
15, p 53.
[23] Environmental Defender's Office (Qld)
Inc, Submission 99A, p 11.
[24] See Butterworths, Halsbury's Laws of
Australia, `Conservation Orders and Stop Work Orders', in Natural
Resources, pp 342, 691 ff.
[25] Senator the Hon Robert Hill, Minister
for the Environment, Reform of Commonwealth Environment Legislation:
Consultation Paper, p 39.
[26] For example, Government of Western Australia,
Submission 241, p 3; South Australian Fishing Industry Council Inc, Submission
622, p 5; Mr David Buckingham, Business Council of Australia, Proof
Committee Hansard, Melbourne, 18 March 1999, p 309; Minerals Council
of Australia, Submission 335, pp 29-30.
[27] For arguments that the floodgates argument
is inaccurate, see Environmental Defender's Office, Submission 15, p 54;
Ms Emily Harris, Environmental Defender's Office, Tasmania, Proof Committee
Hansard, Hobart, 19 February 1999, p 27.
[28] Explanatory Memorandum, p 111.
[29] G Bates, Environmental Law in Australia,
1995, p 513.
[30] National Environmental Law Association,
Submission 522, p 3. Also, Law Council of Australia, Submission 610, p
6; Ms Emily Harris, Environmental Defender's Office, Tasmania, Proof
Committee Hansard, Hobart, 19 February 1999, p 27; Greenpeace Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 134.
[31] Law Council of Australia, Submission 610,
p 6 and Mr Mark Dwyer, Law Council of Australia, Proof Committee Hansard,
Canberra, 4 March 1999, p 117. See clauses 475 (6)(a), 7(a), clause 487,
referring to the Administrative Decisions (Judicial Review) Act 1977,
section 3(4).
[32] For example, Tuna Boat Owner's Association
of Australia Inc, Submission 631, p 6; Minerals Council of Australia,
Submission 335, p 29; Mr David Buckingham, Business Council of Australia,
Proof Committee Hansard, Melbourne, 18 March 1999, pp 309-310;
Australian Seafood Industry Council, Submission 154, p 5.
[33] S D Hotop, Principles of Australian
Administrative Law, 1985, p 293.
[34] Ross Ramsay and Gerard C Rowe, Environmental
Law and Policy in Australia, 1995, p 798.
[35] G Bates, Environmental Law in Australia,
p 510.
[36] South Australian Fishing Industry Council
Inc (SAFIC), Submission 622, p 8. Also, Minerals Council of Australia,
Submission 335, p 30; Woodside Energy Ltd, Submission 504, p 14; Australian
Seafood Industry Council, Submission 154, p 5.
[37] For example, see Mr Rowan Silva, Environmental
Defender's Office of North Queensland, Proof Committee Hansard,
Brisbane, 28 August 1998, p 295; Ms Jane Holden (TRAFFIC Oceania), Proof
Committee Hansard, Sydney, 4 February 1999, p 89; Ms Nicola Beynon,
Humane Society International, Proof Committee Hansard, Sydney,
4 February 1999, p 89.
[38] Environmental Defender's Office, Submission
15, p 54. Also, Environmental Defender's Office, Submission 15, p 38;
Miss Emily Harris, Environmental Defender's Office, Proof Committee
Hansard, Hobart, 19 February 1999, p 31; Australian Seafood Industry
Council, Submission 154, p 4.
[39] Senator the Hon Robert Hill, Minister
for the Environment, Reform of Commonwealth Environment Legislation:
Consultation Paper, February 1998, p 39.
[40] Clause 481(1).
[41] Clause 481(3).
[42] Clause 483.
[43] Environmental Defender's Office, Submission
15, p 55.
[44] Professor Robert Fowler, Australian Centre
for Environmental Law, University of Adelaide, Proof Committee Hansard,
Adelaide, 12 March 1999, p 197.
[45] Environmental Defender's Office, Submission
15, p 54.
[46] Environmental Defender's Office, Submission
15, p 55. Also, Professor Robert Fowler, Australian Centre for Environmental
Law, University of Adelaide, Proof Committee Hansard, Adelaide,
12 March 1999 p 197.
[47] Clauses 12, 16, 18, 20
[48] Environmental Defender's Office, Submission
15, p 56.
[49] Minerals Council of Australia, Submission
335, p 30; Woodside Energy Ltd, Submission 504, p 15.
[50] Clause 496.
[51] Clause 499.
[52] Clause 500.
[53] Minerals Council of Australia, Submission
335, p 30. Also, Woodside Energy Ltd, Submission 504, p 15.
[54] Australian and New Zealand Minerals and
Energy Council Inc, Submission 545, p 26.
[55] Clauses 502, 504.
[56] Clause 511.
[57] See clause 503 – the matters on which
the Committee can advise are the making of recovery and threat abatement
plans; amending and updating species and communities lists; matters relating
to the administration of the Bill; such other advice as is provided for
in the Bill; and to perform such other functions as are conferred on the
Committee by the Bill.
[58] Clause 502.
[59] Government of South Australia, Submission
523, p 16; Mr John Scanlon, Department for Environment, Heritage and Aboriginal
Affairs (SA), Proof Committee Hansard, Adelaide, 19 March 1999,
p 186; Government of the Northern Territory, Submission 613, p 10.
[60] For example, National Council of Women
of Australia Inc (Victoria), Submission 355, p 5.
[61] ATSIC, Submission 276, p 4.
[62] Clauses 504, 505.
[63] The current BDAC was created in 1991 by
the Minister responsible for the environment. It consisted of 11 members,
initially representing wide-ranging scientific disciplines, non-government
organisations, two State governments and the National Farmers' Federation.
Later, four members were added from the forestry, fishing, tourism and
mining industries.
[64] Clause 504(4).
[65] Biological Diversity Advisory Council,
Submission 620, p 3.
[66] Professor Stephan Schnierer, College of
Indigenous Australian Peoples, Proof Committee Hansard, Sydney,
4 February 1999, p 107; ATSIC, Submission 276, p 3.
[67] Clauses 511-514.
[68] Clause 511(3).
[69] For example, Mr Greg McIntyre, Kimberley
Land Council, Proof Committee Hansard, Perth, 26 February,
1999, p 80; Australian Humanists, Submission 359, p 4.
[70] ATSIC, Submission 276, p 3; Mr William
Eldridge, ATSIC, Proof Committee Hansard, Canberra, 4 March
1999, p 140; Professor Stephan Schnierer, College of Indigenous Australian
Peoples, Proof Committee Hansard, Sydney, 4 February 1999, p 110.
[71] Animals Australia, Submission 384, p 6.
Also, Project Jonah, Submission 63, pp 7-8; Ms Janet Oliver, Wildlife
Preservation Society of Queensland, Proof Committee Hansard, Brisbane,
28 August 1999, p 287.
[72]
[73] National Council of Women of Australia
Inc Ltd, Submission 355, p 6. Also, Australian Humanists, Submission 359,
p 1; Professor Derek Anderson, Centre for Plant Biodiversity Research,
Proof Committee Hansard, Canberra, 4 March 1999, p 149.
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