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

Chapter Three

Overview of the Bill Process

The Legislation Reform Process and Public Consultation

3.1 Following the COAG Review, the Government undertook a Review of Commonwealth Environment Legislation. In the 1997-98 Statement on the Commonwealth's Environment Expenditure, the Minister for the Environment, Senator Hill, indicated that the Government would formally initiate a review of Commonwealth environmental law by releasing a discussion paper on possible reforms.

3.2 The Review was undertaken by the Department of the Environment, through its Legislation Reform Task Force. The Minister for the Environment released a Consultation Paper, Reform of Commonwealth Environment Legislation, which outlined the Government's proposals for new environment legislation. The Consultation Paper originally envisaged the creation of two Acts, the Environment Protection Act and the Biodiversity Conservation Act. It also foreshadowed the reform of heritage legislation. [1] Other issues discussed under the Consultation Paper included the objectives of the review of environmental law, and enforcement and compliance.

3.3 A substantial number of key organisations made submissions to the Department in response to the Consultation Paper. The comments from over three hundred submissions were taken into consideration in the development of the Bill and the Minister held discussions with key interests. [2]

Consultation on the Reforms

3.4 It is the Committee's view that consultation with stakeholders on the development of the Bill has been extensive. The review of Commonwealth-State roles and responsibilities for the environment preceded the reform of Commonwealth environmental legislation and culminated in the Heads of Agreement on Commonwealth-State roles and responsibilities for the environment, endorsed in principle by COAG on 7 November 1997.

3.5 The initial period of consultation with key stakeholders occurred in 1996, when a discussion paper was provided on Commonwealth/State roles and responsibilities for the environment. The Bill implements key outcomes of the COAG Heads of Agreement.

3.6 During the period 1996–1998, the Minister, the Minister's office and Environment Australia held a series of meetings on legislation reform with key industry bodies, conservation organisations, indigenous groups, and the States and Territories.

3.7 The Minister released a Consultation Paper on reform of environmental legislation on 25 February 1998. Five thousand hard copies of the paper were distributed to relevant State and Territory agencies, industry bodies, conservation groups, community organisations, professional organisations, scientific institutions, indigenous groups, legal interests, and interested individuals. The Consultation Paper was also made available on the Internet, which recorded several thousand hits during the consultation period.

3.8 More than 325 submissions were received in response to the discussion paper, including a number from consortia.

3.9 At the time of introduction of the Bill in July 1998, several hundred copies of the Bill, Explanatory Memorandum, and the second reading speech were sent to key interest groups and individuals. The Bill and Explanatory Memorandum are also available from Government Bookshops and on the Internet. The availability of the Bill and Explanatory Memorandum on the Internet was made widely known.

3.10 The Minister, Minister's office, and Environment Australia continue to consult with States and Territories, industry bodies, conservation organisations, and indigenous interests about the Bill. In addition, the Senate Committee has had over 600 submissions, with public hearings in every capital city, and has been conducted over a nine-month period. [3]

3.11 The Committee believes that stakeholders have had ample opportunity over the past nine months to provide their views on the Bill directly, through the Senate process. The Committee is mindful that the Department and the Minister's office have been continuing to consult with key stakeholders during the process of the Senate inquiry. The Committee also notes that the Department has maintained an `open door' policy with respect to people wishing to provide their views to the Department. [4] The Committee does not believe that the Bill should be withdrawn for further consideration.

The Senate Inquiry into the Bill

3.12 Concerns were also raised in relation to the Committee's own inquiry process, including access to the Bill. [5] Some witnesses expressed a concern about the ability of organisations to respond adequately within a small timeframe to an inquiry as well. [6]

3.13 The Committee acknowledges the difficulty experienced by community organisations and individuals who do not have instant access to networks of information and who may easily miss a newspaper advertisement. The Committee did, however, undertake extensive advertising of this Inquiry in all major Australian newspapers. Moreover, the Committee continued to receive submissions until late into the inquiry process and provided those who had submitted late submissions with the opportunity to be heard at the various hearings throughout Australia.

3.14 In relation to obtaining copies of the Bill, the Committee notes that the Department of the Environment and Heritage sent out several hundred copies of the Bill to all the States and Territories, key interest groups and individuals and that the Bill and Explanatory Memorandum are available from Government Bookshops and the Internet. The Committee also sent out over one hundred copies of the Bill to individuals seeking to make submissions to the Committee. The Committee also undertook to send copies of the subsequent Environmental Reform (Consequential Provisions) Bill 1998 to all witnesses appearing before the Committee after 10 December 1998.

3.15 The Committee notes the frustration experienced by some submitters but considers that the majority of persons seeking to make submissions to the inquiry were able to obtain copies of the Bill either from the Committee or from the Department. The Committee also notes that not only did the time allotted for submissions conform with the usual time granted for consideration of a Bill before a Senate Committee, but also that submitters had many additional months to make submissions with the intervention of the election and the subsequent months of the Committee's inquiry.

Delivery of Reforms Through the Bill

3.16 The Environment Protection and Biodiversity Conservation Bill 1998 implements key outcomes of the COAG Heads of Agreement on Commonwealth and State roles and responsibilities for the environment. [7] Senator Hill stated in his second reading speech that:

The Bill represents the only comprehensive attempt in the history of our Federation to define the environmental responsibilities of the Commonwealth. It proposes the most fundamental reform of Commonwealth environmental law since the first environment statutes were enacted by this Parliament in the early 1970s. [8]

3.17 The Bill replaces five existing pieces of Commonwealth environmental legislation. These Acts are:

• Environment Protection (Impact of Proposals) Act 1974;
• National Parks and Wildlife Conservation Act 1975;
• Whale Protection Act 1980;
• World Heritage (Properties Conservation) Act 1983; and
• Endangered Species Protection Act 1992.

3.18 A number of complaints were levelled at the size and complexity of the Bill. [9] The Committee acknowledges the difficulty of reading such a large Bill and acknowledges that the original intent was to create two separate Bills. However, the Explanatory Memorandum points out that the original intent was to implement two separate Acts but it was considered that, from a point of view of administrative convenience and the obvious links between environment protection and biodiversity conservation, one piece of legislation would be more effective. [10]

3.19 The Committee considers that it is appropriate for the two subject areas to be combined, as this will ensure that their linkages are actively recognised and will also avoid repetition. Moreover, combining the two areas ensures that this Bill will serve as the principal piece of Commonwealth environmental legislation.

3.20 The Committee notes the endeavour to make the Bill more readable through the use of outline clauses and the division of the Bill into chapters. The Committee commends the use of these drafting mechanisms. The Committee observes, however, an inconsistency in the use of these mechanisms. For example, clause 4 outlines Chapter 2 but there is no corresponding outline for Chapter 3 and Part 8 has an outline but Part 4 does not.

3.21 The chapters of the Bill cover a breadth of material usually placed in a number of parts. The Committee notes that all parts of the Bill would benefit from the inclusion of outlines clauses.

3.22 The Committee also observes inconsistent chapter, part, division and subdivision numbering, which makes it difficult to follow the discrete components of the Bill. The chapters and parts are numbered independently, yet divisions and subdivisions are dependent on the part in which they are located. The Committee notes that other lengthy and complicated Acts which have consolidated areas of law, such as the Corporations Law, have consistent numbering for chapters, parts, divisions and subdivisions.

Recommendation 1

The Committee recommends that summary clauses be inserted for all chapters and parts of the Bill and a consolidated outline be included in Part 1 of the Bill.

Recommendation 2

The Committee recommends that the parts of the Bill be renumbered so that their parent chapter can be identified. For example, Parts 2 and 3 should be renumbered as either Parts 2A and 2B or Parts 2.01 and 2.02.

Related Processes

3.23 There are a number of environmental matters that have not been included in this Bill because they are addressed comprehensively through other means. [11] For example, environmental issues such as ozone depletion, hazardous wastes and sea dumping are dealt with through other legislation.

3.24 Other issues are dealt with through programs, such as the National Feral Animal Control Program and the National Weeds Program, jointly administered by the Department of the Environment and Heritage and the Department of Agriculture, Fisheries and Forestry. These programs are part of the Natural Heritage Trust, the Government's program for coordinating an integrated and long-term approach to the conservation and sustainability of Australia's land, vegetation, water, biodiversity, coasts and oceans.

3.25 At the same time that this Bill is before Parliament, there are related processes which have an impact on the EPBC Bill. The Committee draws attention to these other processes as they assist in understanding the Commonwealth's wider environmental role.

Environmental Reform (Consequential Provisions) Bill 1998

3.26 The Environmental Reform (Consequential Provisions) Bill 1998 repeals the relevant Acts and makes relevant amendments to affected pieces of Commonwealth legislation. This Bill also provides for the savings and transitional arrangements to enable a smooth transition to the new schemes for existing processes such as environment assessment and permitting arrangements. This Bill is discussed in Chapter Four.

Wildlife and Trade

3.27 Some submitters were concerned that the issue of wildlife trade had not been incorporated into the Bill. [12] The Committee notes, however, that this Bill does not subsume wildlife trade, even though the Consultation Paper did allude to its being included when discussing various provisions. [13] Instead, the original Wildlife Protection (Regulation of Imports and Exports) Act 1982 continues in operation, ensuring that there is no lacuna in protection of wildlife from illegal trade and possession. In addition, this Act is to be strengthened by a Bill currently before Parliament, the Wildlife Protection (Regulation of Imports and Exports) Amendment Bill 1998. The Act will be strengthened through tighter controls on the illegal import, export and possession of products containing endangered species and by making it a criminal offence to import, export or possess a product containing material from an endangered species.

Heritage

3.28 Reform of national heritage legislation is intended in the near future as part of the environmental roles and responsibilities reform process. [14] The COAG Agreement identified listing, protection and management of heritage areas as priority areas for reform. COAG agreed to rationalise existing Commonwealth/State arrangements for heritage through development of a cooperative National Heritage Places Strategy. The need for such a National Strategy was endorsed at the meeting of the National Heritage Ministers in October 1997.

3.29 The new heritage proposal is still under discussion with the States and Territories through the COAG Roles and Responsibilities process, with the Australian Heritage Commission responsible for this process. It is intended that this will lead to finalisation of the National Places Strategy later this year. Once the National Strategy has been finalised, it is intended to include the heritage process as the third tier of the reform process, possibly being accommodated within the framework of the Bill. [15]

3.30 Public consultation will be sought during the development of the National Strategy. The proposed National Strategy will:

• set out the respective roles and responsibilities of the Commonwealth and the States;
• identify criteria, standards and guidelines, as appropriate, for the protection of heritage by each level of government;
• provide for the establishment of a list of places of national heritage significance; and
• maximise Commonwealth compliance with State heritage and planning laws.

3.31 Some concern arose relating to the repeal of some sections of the Australian Heritage Commission Act 1975 under the Environmental Reform (Consequential Provisions) Bill 1998. [16] The Committee does not consider that this is an issue for concern. The amendments are necessary as a consequence of the repeal of the Environment Protection (Impact of Proposals) Act 1974 and the consequent establishment of the new Commonwealth environmental assessment and approvals scheme under the Bill. They are transitional arrangements to ensure consistency with the Bill.

3.32 The powers of the Australian Heritage Commission have not been removed. For example, the reference to the Director in section 8 of the Australian Heritage Commission Act 1975 is replaced with a reference to the Minister responsible for Commonwealth reserves. The remaining repealed provisions deal with the relationship between environmental impact assessment legislation and the functions related to the National Estate. They are no longer appropriate to the new environmental assessment and approvals, which focus on matters of national environmental significance. All existing obligations of Commonwealth Ministers remain in place under the Bill. [17]

3.33 The Government has no intention of abdicating from its leadership role in relation to the management of Australia's heritage and its responsibilities to maintain an active and improved role in relation to places of national heritage significance. The Minister has stated that the Government will maintain the role that the Australian Heritage Commission has in relation to education, training, promotion of community awareness and world-class conservation practices. [18]

3.34 The current Australian Heritage Commission Act, while able to offer some protection through identification of heritage places by alerting the community and decision makers to their significance, does not provide the Commonwealth with any real capacity to preserve those places. The National Strategy will redefine the Commonwealth's role to focus attention on places of national heritage. This will result in some real legislative protection for those places, ensuring a better regime for heritage protection in the future than what currently exists.

3.35 The Committee finds that there will not be a significant impact on the operation of the Australian Heritage Commission Act or to the Australian Heritage Commission.

Cultural and Indigenous Cultural Heritage

3.36 The other main heritage concern related to a lack of consideration of cultural heritage in general and indigenous cultural heritage in particular. [19] The Committee acknowledges the concerns of the major heritage organisations that the issue of cultural heritage, especially that of indigenous cultural heritage, be considered under the Bill. [20]

3.37 Given the fact that the heritage reform process is still under consideration, the Committee feels that consideration of cultural heritage is not an issue related to the context of the Bill as it currently stands. Nevertheless, the Committee notes that the Government intends to establish a three million dollar (annually) Cultural Heritage Projects Program to support the conservation and restoration of places of cultural significance.

3.38 In relation to indigenous cultural heritage, the Committee draws notice to the fact that the Department of the Environment and Heritage now has administrative responsibility for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Committee notes that the Government has transferred the responsibility for the Aboriginal and Torres Strait Islander Protection Act 1984 as recognition of the `inextricable links between natural and cultural heritage places.' [21] The Australian Heritage Commission Act also provides for indigenous cultural heritage.

3.39 The Committee feels that the issue of cultural heritage and indigenous cultural heritage is being addressed by the Department of the Environment and Heritage through the current reform process and the transfer of administrative responsibility.

Quarantine

3.40 Another process relating to this Bill is the amendment of the Quarantine Act 1908 by the Quarantine Amendment Bill 1998. The amendments arise from the Government's response to the report Australian Quarantine : A Shared Responsibility (the Nairn Report). The Committee notes that in the Coalition's policy document, Our Living Heritage, the Government stated its intention to amend the Quarantine Act in order to establish a role for the Minister for the Environment and Heritage to advise on the importation of plants and animals that could have a significant impact on the environment. [22] The Coalition Policy Launch Statement, A Stronger Australia, stated that:

The Coalition places a high priority on stopping new pests being introduced. During the past two years, the Howard/Fischer government has:

• provided funds, through the Natural Heritage Trust, to the Australian Quarantine and Inspection Service (AQIS) to develop a new Weed Risk Assessment to avoid the importation of potential weeds;
• proposed amendments to the Quarantine Act to ensure environmental concerns are addressed in AQIS' risk assessment process.

During the next Parliament, the Coalition will introduce additional amendments to the Quarantine Act to further strengthen environmental considerations in quarantine decisions.

New provisions will ensure that the Commonwealth Environment Minister will be formally consulted if a proposed importation of plants, animals or goods is likely to have a significant impact on the environment. The Minister for the Environment will be asked to advise on:

• the risk assessment process;
• whether the importation should occur; and if so
• what particular conditions should be imposed to prevent significant risk to the environment. [23]

3.41 The amendments of relevance to the EPBC Bill are those requiring the Director of Quarantine to consult the Environment Minister before making certain decisions. The inclusion of reference to the environment in the Quarantine Amendment Bill 1998 provides formal recognition to the important role that quarantine plays in protecting indigenous flora and fauna from exotic pests and diseases. [24]

3.42 Where the Director of Quarantine makes a decision under the Quarantine Act that is likely to result in a significant risk of harm to the environment, the Director must ensure that the Environment Minister is told of the Director's intention to make that decision. The Director must also provide the Environment Minister with an assessment of the potential impact on the environment of the proposed decision. The Environment Minister may give written advice to the Director of Quarantine as to the action that should be taken to prevent or limit any harm that may be caused to the environment as a result of the implementation of the decision. The Director must ensure that the any advice from the Environment Minister is taken into account in making the decision, and the Environment Minister must be informed as to how the advice has been taken into account. [25]

 

Footnotes

[1] Senator the Hon Robert Hill, Minister for the Environment, Reform of Commonwealth Environment Legislation: Consultation Paper, February 1998, pp 7, 19, 33.

[2] Senator the Hon Robert Hill, Minister for the Environment, Senate Hansard, 2 July 1998, p 4798; Explanatory Memorandum, p 17.

[3] Department of the Environment and Heritage, supplementary information, 1 April 1999, Attachment C, p 1.

[4] Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1999, p 165.

[5] Mrs Leanne Said, Submission 551, p 1; Ms Emma Brooks Maher, Haberfield Association Inc, Proof Committee Hansard, Sydney, 4 February 1999, pp 125-126.

[6] Ms Linley Grant, National Council of Australian Women, Proof Committee Hansard, Hobart, 19 February 1999, p 35.

[7] Explanatory Memorandum, p 10.

[8] Senator the Hon Robert Hill, Minister for the Environment, Senate Hansard, 2 July 1998, p 4795.

[9] For example, North Coast Environment Council, Submission 13, p 2; Mr John Connor, Nature Conservation Council of New South Wales and Associate Professor Paul Adam, Coasts and Wetlands Society Inc, Proof Committee Hansard, Sydney, 4 February 1999, pp 130-131; Mr Michael Krockenberger, Australian Conservation Foundation, Proof Committee Hansard, Melbourne, 18 March 1999, p 281.

[10] Explanatory Memorandum, p 10.

[11] Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1999, p 160.

[12] For example, The Wildlife Preservation Society of Queensland, Submission 155, p 3; Ms Jane Holden, TRAFFIC Oceania, Proof Committee Hansard, Sydney, 4 February 1999, p 89; Animals Australia, Submission 384, p 2.

[13] Senator the Hon Robert Hill, Minister for the Environment, Reform of Commonwealth Environment Legislation : Consultation Paper, February 1998, pp 21, 31, 39.

[14] Australian Heritage Commission, National Heritage Convention Background Paper, , pp 7-8.

[15] Senator the Hon Robert Hill, Minister for the Environment, Senate Hansard, 2 July 1998, p 4798; Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1999, p 161.

[16] Sections 25, 28, 29 and 44.

[17] Mr Roger Beale, Department of the Environment and Heritage, Proof Committee Hansard, Canberra, 4 March 1999, p 161.

[18] Senator Alan Eggleston, Chair, Proof Committee Hansard, Sydney, 4 February 1999, p 126.

[19] Mr Barry Jones, Australia ICOMOS Inc, Proof Committee Hansard, Canberra, 4 March 1999, pp 152-153.

[20] Dr Susan Marsden, Australian Council of National Trusts, Proof Committee Hansard, Canberra, 4 March 1999, p 153.

[21] Coalition Policy Document, Our Living Heritage, 1998, p 60.

[22] Coalition Policy Document, Our Living Heritage, 1998, p 5.

[23] A Stronger Australia, 20 September 1998, pp 30 – 31.

[24] Explanatory Memorandum, Quarantine Amendment Bill 1998, p 2.

[25] Quarantine Amendment Bill 1998, Schedule 1, Part IIA, sections 11C(a), 11C(b), 11D, 11E.