Chapter Five
General and preliminary matters
Part 1 – GENERAL MATTERS
Overview
5.1 The Committee noted several major concerns raised by witnesses and
submissions that relate to the Bill generally. These are discussed in
Part 1.
Philosophy of the Bill
Command and Control
5.2 The Committee notes that many industry organisations feel that the
Bill takes a `command and control' approach to environmental protection.
[1]
In its command and control approach to most issues, in its encouragement
of adversarial approaches and in the excessive powers associated with
impact assessment and auditing, the Bill appears to be outdated in its
approach and lacking in even handedness. It appears to need significant
modernisation in this respect. [2]
5.3 The Committee notes, however, that this view was not unanimous:
We understand the term to `command and control' to mean environmental
regulation requiring direct and specific regulation – for example,
specifying the use of particular regulatory bodies only being concerned
with ensuring compliance with their standards rather than the environmental
outcomes. … Just to give an example, an air pollution inspector requiring
the use of scrubbers to minimise emissions may not have considered the
disposal issues raised by the hazardous waste materials collected in the
scrubber. While the particular factory or whatever complies, the pollutant
might still end up affecting the environment. [3]
5.4 The Committee does not consider that the legislation presents a command
and control approach to protection of the environment. Command and control
approaches are highly prescriptive, setting specific technical standards
that must be strictly complied with. [4]
5.5 The Bill is not prescriptive, it does not seek to regulate pollution
matters and does not concern itself with setting exacting standards. Such
regulatory legislation is the domain of the States and Territories.
5.6 The Committee considers that the Bill is based on objectives and
outcomes, not on standards. Significantly, there is nothing in the Bill
that prevents industry from continuing to use voluntary best practice
methods, such as environmental management systems and environmental monitoring.
Ministerial Discretion
5.7 A number of submissions have criticised the Bill for having unfettered
Ministerial discretion. [5]
5.8 The Committee disagrees with the contention that ministerial discretion
under the Bill is too wide. The Bill contains a range of checks and balances
to ensure that all relevant factors are taken into account in decision
making. For example, the Bill sets detailed processes for environmental
assessment and approval, including factors that the Minister must consider
and requirements for developing a range of instruments such as bilateral
agreements.
5.9 Mr Roger Beale, Secretary of the Department of the Environment and
Heritage, addressed this criticism:
The Bill sets out in detail the matters that the Minister must consider
in making decisions. These are set out in clauses 136 to 141. The Bill
also sets out a detailed process that must be followed, including consultation
with other Ministers and the States, and ample opportunity for public
comment. In this way, the Bill, in fact, sets out more by way of obligations
and process for the Minister than has been the case in the past under
similar legislation. [6]
5.10 Transparency and accountability in decision making are also achieved
through the public consultation processes throughout the Bill, the publication
of a range of decisions, along with reasons, judicial review with appropriate
standing provisions and annual reporting on the operation of the legislation
under clause 516. Ultimately, the Minister is responsible to Parliament
for the proper administration of the Bill and is accountable for the proper
discharge of powers committed to the Minister under the Bill.
Public Participation in Environmental Decision Making
5.11 The Committee noted a general perception that the Bill does not
provide an adequate role for public participation in environmental decision
making:
NCWA Ltd would prefer to see clauses in the Bill which provide adequate
opportunity for community involvement prior to all major decisions, as
outlined in the objects. [7]
5.12 The Committee believes that the Bill ensures ample opportunities
for public input into environmental decision making. Principal areas in
which the community is given an extensive opportunity for participation
include the carrying out of environmental impact assessments (for example,
clauses 93, 97(5), 98, 102(5), 103, 110 and 146(2)(b)), the preparation
of management plans for protected areas (clause 368), the nomination of
listed threatened species, ecological communities and key threatening
processes (clause 191), the preparation of recovery plans for endangered
species and threat abatement plans (clauses 275 and 276), the preparation
of wildlife conservation plans for listed migratory species, listed marine
species and cetacean species (clauses 290 and 291) and the monitoring
of State compliance with bilateral agreements (clause 57).
5.13 Furthermore, the Bill contains appropriate standing provisions,
allowing people and organisations with a recent history of genuine environmental
interest and activity to take action in the courts.
Commissioner for the Environment
5.14 A constituency for the creation of a commissioner for the environment
was evident throughout the hearings of the Committee. [8]
The concept derives from both overseas precedents in Canada and New Zealand
and Australian precedents in the Australian Capital Territory and Victoria.
[9] The suggestion was made that an office of
Commissioner for the environment should be established.
5.15 The various submissions suggest a range of possible roles for the
proposed environmental commissioner. Principally, it appeared that the
role of an environmental commissioner would consist of independent review
of government environmental agencies and performance, including review
of bilateral agreements, auditing of compliance with approvals and agreements
made under the Bill and establishing whether the Commonwealth has met
sustainable development strategies. [10] It
could include the development of sustainable development strategies and
assessment of whether the Commonwealth had met its obligations under such
strategies. [11] In addition, the commissioner
could be involved in the creation or coordination of periodic State of
the Environment reports. [12]
5.16 Mr Beale did not consider that a Commissioner of the Environment
would be an appropriate mechanism under the Bill:
It is a very bureaucratic approach. We have not seen the necessity to
build such a role into the Bill. The Minister – and, serving the
Minister, the Department – will, of course, have an obligation to
monitor and evaluate, for example, State compliance with bilateral agreements.
… I am going to have to report to the Parliament on that every year
and no doubt be examined in relation to it. But it is not a case of setting
up a separate bureaucratic arm for that. [13]
5.17 The Committee does not consider that it would be appropriate to
establish a commissioner for the environment under this Bill. The Bill
contains adequate safeguards to ensure accountability for the operation
of bilateral agreements and of the Act, including review and reporting
mechanisms. The Secretary is under an obligation to report to Parliament
annually on the operation of the Bill and the report must be laid before
both Houses of the Parliament. [14] The Auditor-General
will be able to conduct audits on matters related the implementation of
the Bill under the Auditor-General Act 1997.
5.18 The Committee considers further that the suggested functions of
the proposed environmental commissioner extend well beyond the scope of
the Bill. For example, the development of sustainable development strategies
by Commonwealth agencies and the coordination of State of the Environment
reporting are much broader concepts than the Bill's focus on environmental
assessment and approvals and biodiversity conservation. The Committee
considers that the underlying assumption that there needs to be a legislative
basis for such processes as State of the Environment reporting is also
questionable, as the current administrative basis for this is very successful.
[15]
5.19 The Committee does not consider this Bill to be the appropriate
vehicle for the creation of what is essentially an independent statutory
review body. To be effective, such a position would need its own legislative
basis.
Duty of Care for the Environment
5.20 The Environmental Defender's Office suggested that the concept of
a duty of care for the environment be included in the Bill, citing the
Industry Commission's support of the principle:
This duty should apply to all developers and industry, as well as every
natural resource owner, manager or user. It should entail three subsidiary
duties: (i) a requirement that in formulating policy, making decisions
or taking action, all reasonable and practical steps be taken to prevent
harm to the environment; (ii) a requirement to identify, assess and manage
the risks of harming the environment, and (iii) a requirement to inform
and consult with those at risk of foreseeable harm from an environmental
hazard or its management. [16]
5.21 The Committee notes that it is not within the Commonwealth's constitutional
authority to legislate for a general duty of care.
5.22 The Committee is aware of the Industry Commission's report and recommendation
for a general duty of care for the environment. The Committee notes, however,
that the duty of care concept envisaged by that report focussed on encouraging
land-holders to take reasonable and practical measures to prevent harm
to the environment. The examples provided by the Industry Commission for
application of the general environmental duty of care principally concern
regulation of such natural resource management matters as soil and land
degradation, vegetation clearance, water resources protection, pollution
and control of pests and weeds. [17]
5.23 Additionally, the Committee notes that the usual application of
the general environmental duty of care concept is to pollution control
within State jurisdictions. [18]
5.24 The Committee believes that the Bill and various Commonwealth programs
already adequately address the natural resource areas that the proposed
general environmental duty seeks to cover. For example, the objects of
the Bill provide for the promotion of a cooperative approach to the protection
and management of the environment involving governments, the community
and land-holders, providing a clear encouragement to land-holders to take
proactive approaches to environmental protection through the use of such
mechanisms as voluntary conservation agreements.
5.25 From the Commonwealth perspective, the Commonwealth and its agencies
must take all reasonable steps to act in accordance with recovery, threat
abatement and wildlife conservation plans.
5.26 If the Bill were to go any further than this and impose a general
duty of environmental care, it might create a perception of uncertainty
as to the other obligations created under the Bill. Ultimately, the Committee
does not feel that this duty would provide any further value to the implementation
of the Bill.
PART 2 – PRELIMINARY MATTERS
Chapter One
5.27 Chapter 1 of the Environment Protection and Biodiversity Conservation
Bill 1998 concerns preliminary matters. It deals with such elements as
objectives, commencement, application and the relationships with international
agreements and State law.
Commencement – Clause 2
5.28 Various submissions raise a concern with the commencement date of
the Bill, firmly believing that bilateral agreements should be completed
before the Bill becomes operative:
The Bill cannot operate effectively without bilateral agreements in place.
In our judgment, this Act should not come into effect until bilateral
agreements are in place covering all relevant matters of national environmental
significance. [19]
5.29 The unavailability of regulations also concerned many submitters:
The regulations, of which there are potentially many and which can be
introduced without reference to the States, are of parallel importance
to the bilateral agreements. A full assessment of the Bill and its costs
and benefits cannot be undertaken in the absence of the regulations. Industry
is of the strong view that all regulations must be produced and debated
contemporaneously with the legislation. [20]
5.30 The Committee notes the concern raised by submitters in relation
to having both bilateral agreements and regulations in place before the
Bill commences. The Committee notes that the concern principally relates
to uncertainty.
5.31 The Committee notes that the Minister has stated that there will
be public consultation. [21] The Committee
notes that the framework is already being developed for bilateral agreements.
The Department of the Environment and Heritage has commenced discussions
on bilateral agreements. Mr Howard Bamsey, Deputy Secretary of the Department
of the Environment and Heritage, told the Committee that:
We have certainly started talking to the States about bilaterals. We
have been working from the framework in the Bill itself and we are using
that framework to devise the standards that would apply in the bilaterals.
It is true to say that we are at the beginning of the process of negotiating
bilaterals and, to some extent too, just as with the matters discussed
earlier, the content of bilaterals will, of course, have to comply with
the Act as it is adopted. … We understand the need to develop bilaterals
to demonstrate that the Bill will work as it is designed to do. [22]
5.32 The Committee sees an inherent difficulty in requiring the Commonwealth
to await the creation of all bilateral agreements before commencement
of the Bill. This request presumes that there is a finite number of such
agreements to be made and therefore limits their utility as a flexible
tool capable of use as the need arises in accrediting State and Territory
processes. [23] It also leaves the Commonwealth
open to potential stalling and inevitable uncertainty:
were you to take that approach, it would be quite clear that the passage
of this legislation would itself be hostage to the formation of those
agreements. That does not seem to be a firm basis on which to set out
the Commonwealth's responsibilities in this area. [24]
5.33 In relation to the request for draft regulations, the Committee
notes that the Bill aims to set in place the overall structure for provision
of objectives and outcomes, to which the details will be gradually added.
Mr Beale informed the Committee that it is not unusual for subordinate
legislation to be provided at a later stage because:
the aim of the fundamental legislative instrument is to set objectives
and describe processes and then to allow for the proper development of
subordinate legislation which, in turn, is subject to the normal parliamentary
checks and balances. [25]
5.34 Drafting the regulations before being certain of the Bill's obligations
would be difficult without certainty as to the final shape of the Bill:
Obviously, before you draft regulations, it is extremely desirable to
have a firm view of what legislative heads of power and obligations you
are drafting those regulations to complement. I would have thought that
this would be something that is extremely difficult to parallel track,
although one might have a general policy idea of the sorts of regulations
that would complement the provisions of the Bill. [26]
5.35 The Committee accepts that the development of the regulations is
under consideration but that their finalisation is gradual. [27]
The Department of the Environment and Heritage is aware of the need to
have some regulations in place before the commencement of the Bill:
We have identified the regulations which need to be in place in order
for the Bill to operate effectively. Those would obviously need to have
priority when the time came to draft the regulations. [28]
5.36 The Committee notes that the Minister has stated that community
concerns on what the regulations will contain will be considered:
Many of the submissions … raised issues that will ultimately be
in that regulatory form. That form of consultation is continuing. The
parliamentary committee has got submissions from the public as well which
raise the same issues. We read those submissions, listen to the debate
and obviously respectfully take account of the views of the parliamentary
committee when it reports. [29]
Objects of the Bill – Clause 3
5.37 The Committee notes the important environmental objectives and outcomes
laid out in the objects clause of the Bill. These objects include protection
of the environment, focussing on matters of national environmental significance,
the promotion of ecologically sustainable development and biodiversity
conservation, the promotion of a cooperative approach and assisting in
the cooperative implementation of Australia's international environmental
responsibilities. [30]
Objects Clause in Need of Strengthening
5.38 Numerous submissions call for a strengthening of the objects of
the Bill. Generally, it is suggested by such submissions that the objects
clause be amended by deleting the words `to provide' and `to promote'
and replacing them with the terms `to protect' and `to ensure'. [31]
Professor Janet McDonald stated that since:
the objects clause of any legislation is hortatory at best, the objects
clause should contain the strongest possible statement of what the legislation
aims to do. Merely providing for or promoting ESD is insufficient as the
object of the Bill – its object should be to actually achieve
those outcomes – the rest of the provisions should be what promotes
or provides for that result. Accordingly, this author suggests that the
objects clause be amended to make it clear that the object – the
purpose – of the Bill is outcomes-based, namely to protect the
environment and guarantee that Australia pursues a path of ecologically
sustainable development. [32]
5.39 The Committee notes the extent of interest in amendment of the objects
clause. The Committee considers, however, that the current clause is effective.
It clearly provides that the protection of the environment and the conservation
of biodiversity are the foremost objectives. The Bill frequently makes
express reference to the need for the objects clause to be considered
and requires that decisions be made consistent with the objects of the
Bill.
5.40 For example, the Minister cannot enter a bilateral agreement unless
it accords with the objects and in making recovery, threat abatement and
wildlife conservation plans, regard must be had to the objects. It is
through such provisions as these, that persons implementing the Bill will
ensure the promotion and achievement of the Bill's objects. As the eminent
Australian authority on statutory interpretation, Professor Dennis Pearce,
has said:
It has also to be borne in mind when considering an objects clause that
it alone will not represent the object of the legislation. Intention is
to be gleaned from the whole of the Act and regard must also be had to
other sections. [33]
Reform Process not Reflected in the Objects
5.41 The Minerals Council of Australia did not consider that the objects
clause reflected the objectives of the reform process to deliver better
environmental outcomes by promoting certainty and minimising duplication.
The submission also stated that clause 3(2) contained assertions rather
than objectives. [34]
5.42 The Committee thinks that the objects clause does reflect the reform
principles of timeliness, efficiency and certainty. The Bill seeks to
obtain a cooperative relationship with industry by reducing Commonwealth
and State duplication and introducing a streamlined development approval
process, thereby providing industry with a certain, timely and efficient
process. Moreover, the Committee does not find clause 3(2) contains mere
assertions – this clause provides guidance for achieving the objects
and these clearly encompass the reform principles.
Crown Liability – Clause 4
5.43 Clause 4 provides that the Act binds the Crown and clarifies that
the Crown is not liable to be prosecuted for an offence but that it must
not do anything that would be an offence against the Act if done by anyone
else. Concerns about this clause relate to a belief that the Commonwealth
will therefore not be held liable for any breaches:
One of the biggest sources of potential environmental damage comes from
decisions and activities undertaken by government. The Bill should exert
control over the discretion and acts of the government as a developer
and manager of activities having impact on the environment, including
through the imposition of liability for prosecution. [35]
5.44 The Committee disagrees that this clause will result in a lack of
control over the activities and decisions of the Commonwealth. The clause
does not render Commonwealth employees, servants or agents who breach
offence provisions in the Bill immune from prosecution. Commonwealth officers,
servants and agents of the Crown, in fact, have no immunity from the ordinary
criminal law.
5.45 Neither does this clause provide any immunity to bodies that are
outside the shield of the Crown, such as government business enterprises
(GBEs), as they are subject to criminal liability in the same manner as
other corporations. Most, if not all, of the Commonwealth's trading and
business activities are carried on by GBEs, which will be subject to the
criminal provisions of the Bill.
5.46 There are a number of reasons for preserving the immunity of the
abstract entity known as `the Crown' from criminal prosecution. One main
reason is the reality that it is very difficult to establish the mental
state of the Crown and therefore establish the fault elements of an offence,
namely intention, knowledge, recklessness or negligence. Establishing
the mental state of the Crown is far more difficult than that of corporate
criminal responsibility because it involves a body politic.
5.47 Another crucial reason for not subjecting the Crown to liability
is the incongruity of having the Crown, which has sole responsibility
for criminal prosecutions, prosecuting itself. Notably, in spite of the
immunity to prosecution for the Crown, injunctions remain available to
remedy a contravention of the Bill by government. [36]
Application of the Act – Clause 5
5.48 The Bill applies to external territories. Except where the contrary
intention appears, the Bill applies only to acts, omissions, matters and
things within the Australian jurisdiction. [37]
The Australian jurisdiction is defined to mean the land, waters, seabed
and airspace under or above Australia, an external territory, an exclusive
economic zone or the continental shelf. [38]
In the Australian jurisdiction, the Bill applies to everyone. Where the
Bill applies outside the Australian jurisdiction, it applies only to Australian
citizens and certain other persons domiciled in Australia, Australian
corporations, Australian aircraft, Australian vessels, Commonwealth agencies
and the Commonwealth. [39]
Extraterritorial Application of the Bill
5.49 Various industry submissions were concerned about the extraterritorial
application of the Bill:
Section 5(3) therefore prompts the question of whether the Bill is intended
to apply to the activities of an Australian corporation in, for example,
Indonesia … It would be helpful if the Bill were to give some indication
of its effect beyond the EEZ. If, for example, the intention is merely
to continue the present extra-territorial effect of the Whale Protection
Act, then it will be simpler to say so. [40]
5.50 The Committee finds that clause 5(2) makes it clear that the Bill
applies to only the Australian jurisdiction unless the Bill expressly
provides otherwise. The Committee notes that the only provisions of the
Bill that expressly apply beyond the Australian jurisdiction are those
pertaining to whales and cetaceans. [41]
Application of the Bill to Norfolk Island
5.51 The Government of Norfolk Island submitted that the Bill should
not be applied to Norfolk Island:
The Norfolk Island Government's view in respect of this Bill is that
it should not be extended to Norfolk Island. Perhaps I should have prefaced
that statement by saying that, under the terms of the Norfolk Island Act,
not all Commonwealth Acts extend to Norfolk Island. In fact, the majority
do not … This is one of those bills where, when it is given the force
of law, the Norfolk Island Government is of the view that it should not
be extended to Norfolk Island. [42]
5.52 The Committee notes that section 18 of the Norfolk Island Act
1979 provides that Commonwealth Acts only apply to Norfolk Island
when the Commonwealth Act expressly extends its application. In relation
to the National Parks and Wildlife Conservation Act 1975, section
4 expressly extends the application of the Act to every external territory,
which includes Norfolk Island. Regulation 3(4) of the National Parks and
Wildlife Conservation Act, however, provides that the regulations do not
apply to the Norfolk Island National Park or the Norfolk Island Botanic
Garden. In relation to the other four Acts repealed by the Bill, each
of these extends their application to the external territories, including
Norfolk Island. [43]
5.53 The Committee is aware that there is a range of Norfolk Island conservation
legislation. [44] The Committee does not think
that there is adequate reason, however, to exclude Norfolk Island from
the application of this Bill. The Bill aims to provide a national environmental
scheme, which produces an effective and efficient national approach to
environmental management. It would not be appropriate to exclude one self-governing
territory. To do so would result in an undesirable gap in environment
protection and biodiversity conservation in Australia. Given that there
are matters of national environmental significance on Norfolk Island,
the Committee considers that it would not be appropriate to exclude application
of the Bill to Norfolk Island.
5.54 The Committee points out that concerns of the Norfolk Island Government
relating to on-the-ground management in Commonwealth areas being under
the control of the Norfolk Island will be allayed through the creation
of bilateral agreements between the Commonwealth and the Government of
Norfolk Island. The Committee notes the confidence of the Norfolk Island
Government that it could successfully complete bilateral agreements with
the Commonwealth. [45] In relation to the concern
about harvesting the eggs of the sooty tern, the Committee believes that
this traditional practice could be accommodated under a wildlife conservation
plan. [46]
Recognition of Local Government under the Bill
5.55 Numerous submissions considered that the Bill should recognise local
government and its role in protecting the environment and conserving biodiversity.
[47]
The Bill makes no reference to Local Government despite the resources
currently committed by Local Government to environmental management and
the critical role it plays in this issue. The National Strategy for the
Conservation of Australia's Biodiversity recognises that resources
need to be allocated to Local Government so that they can play a major
role in nature conservation. This is not reflected in the Bill. [48]
5.56 The role of local government is vital to environmental protection
and biodiversity conservation. For that reason, the Commonwealth Government
has made a number of environmental program commitments directly concerning
local government. For example, the Cities for Climate Protection Australia
program aims to have three hundred local councils participating in the
current pilot program by the year 2003, enabling local councils to take
a significant role in Australia's domestic response to climate change.
[49] Local government also benefits directly
from many of the initiatives under the Natural Heritage Trust, such as
Bushcare, the Endangered Species Program, the Coasts and Clean Seas Program
and the National Reserve System. [50]
5.57 In relation to the Bill, while not specifically mentioned, local
government can be involved in the operation of the Bill. Local government
can have a role to play in the implementation of bilateral agreements.
Local government can be involved in aspects of biodiversity conservation;
for example, local government can approach the Minister to seek assistance
under the bioregional provisions of the Bill for the preparation of a
bioregional plan. [51]
5.58 The Committee does not think, however, that the Bill should have
direct provisions for local government. Indeed, the Constitution does
not provide express legislative competence with respect to local government.
Noting that local government has a legitimate interest in this Bill and
its administration, Mr John Scanlon, Chief Executive of the South Australian
Department for Environment, Heritage and Aboriginal Affairs, suggested
that, in relation to bilateral agreements:
State Governments would elect to engage directly local government in
those negotiations, given its role in administering particular legislation
like the Development Act but we would suggest it need not be prescribed
in the Bill and that will be a matter for the State Government to engage
in with its own local governments. [52]
5.59 Mr Beale also commented on the role of local government, noting
that `the States are the sovereign entities,' [53]
and that:
Local governments are creatures of the States and our government-to-government
agreement would be with the State. I am not sure that that is not saying
that it would necessarily preclude a State saying that, within this bilateral
agreement, local government has certain responsibilities. But the government-to-government
agreement, under the legislation, would be with the State and it would
be the State's duty then to ensure that local government met its obligations
under the State element of the bilateral agreement. [54]
5.60 The Committee is confident that the interaction between the State
and its local governments in pursuit of meeting the requirements under
this Bill will ensure that the role of local government will be adequately
recognised. The Committee notes that there is an increasing trend to encourage
environmental management responsibility and control at the local level
and that this is being reflected in State legislation. [55]
Native Title Rights
5.61 Clause 8 of the Bill states that `nothing in this Act affects the
operation of section 211 of the Native Title Act 1993 in relation
to a provision of this Act'. Section 211 of the Native Title Act provides
that native title holders may carry out certain activities, in the exercise
or enjoyment of native title rights and interests in relation to land
or waters, without authorisation required by other laws. These activities
are defined by section 211(3) of the Native Title Act as hunting, fishing,
gathering, a cultural or spiritual activity, or any other kind of activity
prescribed for this purpose. Clause 8 replaces, in part, section 70 of
the National Parks and Wildlife Conservation Act 1975, which states:
Traditional use of land and water by Aboriginals
- Subject to subsection (2) and to the operation of this Act in relation
to parks, reserves and conservation zones, nothing in this Act prevents
Aboriginals from continuing, in accordance with the law, the traditional
use of any area of land or water for hunting or food-gathering (otherwise
than for purposes of sale) and for ceremonial and religious purposes.
- The operation of subsection (1) is subject to regulations made for
the purpose of conserving wildlife in any area and expressly affecting
the traditional use of the area by Aboriginals.
5.62 Under section 211 of the Native Title Act, the exemption from the
need to obtain an authorisation does not apply where a Commonwealth law
provides that an authorisation is only to be granted for research, environmental
protection, public health or public safety purposes. Such authorisation,
for example, will be required in relation to the taking of listed threatened,
migratory and marine species under the Bill. However, the permitting provisions
in the Bill explicitly recognise indigenous tradition in the use of species.
For example, clause 201(3)(c) enables the Minister to issue a permit for
the taking of a listed threatened species or listed ecological community
if the action is of particular significance to indigenous tradition and
will not adversely affect the survival or recovery in nature of the species
or community. Similar provisions apply to permits for listed migratory
species and listed marine species (clauses 216(3)(c) and 258(3)(c), respectively).
These provisions are modelled on section 89 of the Endangered Species
Protection Act 1992.
5.63 The Northern Land Council (NLC) submitted that clause 8 was not
a substitute for section 70 of the National Parks and Wildlife Conservation
Act and that `removal of the protection allowed to Aboriginal people for
subsistence hunting, food gathering and land use under s.70 of the Act
appears to amount to, or foreshadow an acquisition, not on just terms,
of their rights to native flora, fauna and traditional land use'. [56]
5.64 The NLC objected to the permit-related clauses 201(3)(c), 216(3)(c)
and 258(3)(c) on the basis that they are inconsistent with clause 8 and
stated that:
The proposal for traditional people to prove to the satisfaction
of the Minister that “the action is of particular significance in
Indigenous tradition” is unacceptable. It will be difficult to enforce,
but its existence will create conflict and disaffection between government
offices, such as Park Rangers and Aboriginals living on their traditional
country, it will undermine joint management regimes and insofar as it
applies to Kakadu national park, it could constitute a breach of clause
2 of the leases which provides for reservation of traditional rights.
[57]
5.65 The NLC recommended that the current protection under section 70
of the National Parks and Wildlife Conservation Act be maintained and
that licensing of traditional activities be substituted by a process of
cooperative monitoring of these species with indigenous people. [58]
5.66 Related to the issue of traditional use was the suggestion by some
witnesses that Article 10(c) of the Biodiversity Convention be provided
for in the Bill. [59] The Article states that
each Contracting Party shall, as far as possible and as appropriate `protect
and encourage customary use of biological resources in accordance with
traditional cultural practices that are compatible with conservation or
sustainable use requirements'.
5.67 The Committee considers that clause 8 is necessary to ensure consistency
between the Bill and the Native Title Act 1993. The Committee notes
that the rights enjoyed under clause 8 are substantially equivalent to
those under section 70 of the National Parks and Wildlife Conservation
Act 1975 and the Endangered Species Protection Act 1992.
5.68 The Committee considers that the requirement to obtain a permit
to take listed threatened, migratory and marine species is justified,
in view of the conservation status of those species and Australia's international
obligations regarding their conservation. The Committee believes that
the Bill adequately provides for consideration of indigenous peoples'
interests in relation to permits through clauses 201, 216 and 258.
5.69 The Committee notes that traditional use of wildlife could be addressed
in wildlife recovery plans or conservation plans for listed threatened,
migratory and marine species. Traditional activities which are taken in
accordance with such plans would not require a permit. [60]
Traditional use could also be addressed in conservation agreements, which
could provide for cooperative monitoring of wildlife, as suggested by
the Northern Land Council. [61]
5.70 The Committee notes that in relation to Commonwealth reserves, the
traditional activities such as hunting, gathering and fishing are likely
to be preserved as a prior usage right under clause 359. The Committee
notes that under the Bill the traditional use of non-listed wildlife in
Commonwealth reserves would not require a permit unless the regulations
specified that the taking of such wildlife is only for scientific, environmental
protection, public health or public safety purposes. The Committee therefore
does not agree with the claim that the rights of traditional owners are
adversely affected.
5.71 The Committee concludes that the Bill provides for considerable
protection of indigenous peoples' interests relating to the traditional
use of land and waters.
Broader Indigenous Rights and Interests
5.72 The majority of submissions from indigenous organisations argued
that the Bill fails to address the issue of indigenous rights and interests
in environmental issues and suggested that the Bill specifically address
these issues. [62] A number of submissions
suggested this could be achieved through a preamble to the Bill. [63]
5.73 The Committee acknowledges indigenous groups' concern about their
broader rights and interests relating to the environment. In the Committee's
view, the Bill already addresses, directly or indirectly, a wide range
of indigenous rights and interests, as discussed above. The Committee
considers that it would not be appropriate to include a preamble that
addresses the specific rights of one sector of the community. It doubts
that a preamble would serve any useful purpose and notes that it is not
consistent with current legislative drafting practices:
This was a device commonly found in old Acts but it is rarely used nowadays.
The intention was to provide a reader with some information relating to
the reason for the enactment of the legislation. So it was common to find
the conduct that the Act was intended to proscribe being referred to or
actions of government that needed parliamentary approval being set out.
As these matters can only be background and are not essential to the validity
of the Act, the practice of including them in a preamble has gradually
been discontinued. [64]
Footnotes
[1] For example, Dr Gordon Brown, The Australian
Academy of Technological Sciences and Engineering, Proof Committee
Hansard, Melbourne, 18 March 1999, p 289; Urban Development Institute
of Australia, Queensland, Submission 82, p 4; Mr Steven Waller, Woodside
Energy, Proof Committee Hansard, Perth, 26 February 1999, p 66;
Western Australian Fishing Industry Council Inc (WAFIC), Submission 625,
p 2; Mr David Buckingham, Business Council of Australia, Proof Committee
Hansard, Melbourne, 18 March 1999, p 309.
[2] Australian Academy of Technological Sciences
and Engineering, Submission 566, p 2.
[3] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 284. Also, Mr Mark Dwyer, Law Council of Australia, Proof Committee
Hansard, Canberra, 4 March 1999, p 119.
[4] `A US term for a regulatory scheme based
on rules that apply specific technical performance standards (generally
based on known feasible control technology) to every discharge point within
a regulated process' : Alan Gilpin, An Australian Dictionary of Environment
and Planning, 1990, p 40.
[5] For example, Mr Michael Krockenberger, Australian
Conservation Foundation, Proof Committee Hansard, Melbourne, 18 March
1999, p 280; Mr James Johnson, Environmental Defender's Office, Proof
Committee Hansard, Sydney, 4 February 1999, p 82; Dr James Udy,
Proof Committee Hansard, Brisbane, 28 August 1998, p 274; Otway
Planning Association, Submission 502, p 1; Conservation Council of Western
Australia, Submission 326, p 1; Mr Mark Dwyer, Law Council of Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 118.
[6] Proof Committee Hansard, Canberra,
4 March, 1999, p 160.
[7] National Council of Women of Australia Inc
Limited (Victoria), Submission 355, p 5. Also, Environmental Defender's
Office, Submission 15, p 5; Northern Land Council, Submission 614, p 9;
North Queensland Conservation Council, Submission 93, p 1.
[8] For example, Mr Gregory Rose, National Environmental
Law Association, Proof Committee Hansard, Canberra, 4 March 1999,
p 115; Mr Simon Molesworth, Environment Institute of Australia, Proof
Committee Hansard, Melbourne, 18 March 1999, p 302; Mr Michael Krockenberger,
Australian Conservation Foundation, Proof Committee Hansard, Melbourne,
18 March 1999, p 281; Environmental Defender's Office, Submission 15,
pp 47-48.
[9] Mr Simon Molesworth, Environment Institute
of Australia, Proof Committee Hansard, Melbourne, 18 March
1999, p 302; Environment Institute of Australia, Submission 623, p 5ff;
Mr Gregory Rose, National Environmental Law Association, Proof Committee
Hansard, Canberra, 4 March 1999, p 115.
[10] Mr Simon Molesworth, Environment Institute
of Australia, Proof Committee Hansard, Melbourne, 18 March
1999, p 302; Environmental Defender's Office, Submission 15, p 47; Mr
Michael Krockenberger, Australian Conservation Foundation, Proof Committee
Hansard, Melbourne, 18 March 1999, p 281.
[11] Mr Gregory Rose, National Environmental
Law Association, Proof Committee Hansard, Canberra, 4 March
1999, p 115; Environmental Defender's Office, Submission 15, p 47.
[12] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne 18 March 1999, p
281; Environmental Defender's Office, Submission 15, p 48; Mr Gregory
Rose, National Environmental Law Association, Proof Committee Hansard,
Canberra, 4 March 1999, p 115; Environment Institute of Australia, Submission
623, p 3.
[13] Proof Committee Hansard, Canberra,
4 March 1999, p 175.
[14] Clause 516.
[15] The 1996 State of the Environment Report
was produced by seven expert reference groups working under the broad
discretion of the State of the Environment Advisory Council.
[16] Environmental Defender's Office, Submission
15, p 4. Also, Humane Society International, Submission 554, p 2; Environmental
Defender's Office (QLD) Inc, Submission 99A, p 2.
[17] `The Commission proposes that the duty
of care should cover the management of all natural resources, including
the land and its vegetation, surface and ground water, biological diversity
and ecological integrity' - Industry Commission, A Full Repairing Lease:
An Inquiry Into Ecologically Sustainable Land Management, 15 September
1997, at p 72 and also p 74.
[18] For example, Environmental Protection
Act 1994 (QLD), section 36 and Environment Protection Act 1993
(SA), section 25.
[19] Mr David Buckingham, Business Council
of Australia, Proof Committee Hansard, Melbourne, 18 March 1999,
p 309. Also, Government of South Australia, Submission 523, p 3; the Australian
and New Zealand Minerals and Energy Council, Submission 545, p 4; National
Farmers' Federation, Submission 530, pp 2, 4; Mr Ian Satchwell, Chamber
of Minerals and Energy of Western Australia Inc, Proof Committee Hansard,
Perth, 26 February 1999, p 68; South Australian Fishing Industry
Council, Submission 622, p 5.
[20] Minerals Council of Australia, Submission
335, p 6. Also, Mr James Johnson, Environmental Defender's Office, Proof
Committee Hansard, Sydney, 4 February 1999, p 79; Mr Michael Krockenberger,
Australian Conservation Foundation, Proof Committee Hansard, Melbourne,
18 March 1999, p 281; Dr Wendy Craik, National Farmers' Federation, Proof
Committee Hansard, Canberra, 4 March 1999, p 121.
[21] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment D, p 5.
[22] Proof Committee Hansard, Canberra,
4 March 1999, p 167. Also, Senator the Hon Robert Hill, Senate Environment,
Communications, Information Technology and the Arts Legislation Committee,
Estimates Hansard, Wednesday, 10 February 1999, p 50.
[23] This point is also acknowledged by Ms
Rachel Siewert, Conservation Council of Western Australia, Proof Committee
Hansard, Perth, 26 February 1999, p 94.
[24] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 162.
[25] Proof Committee Hansard, Canberra,
4 March 1999, p 162.
[26] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 164.
[27] Senator the Hon Robert Hill, Senate Environment,
Communications, Information Technology and the Arts Legislation Committee,
Estimates Hansard, Wednesday, 10 February 1999, p 4; Mr Roger Beale,
Department of the Environment and Heritage, Proof Committee Hansard,
4 March 1999, Canberra, p 164: `Put simply, it is a matter of some
months rather than some weeks that one is talking about in terms of the
availability of the regulations.'
[28] Dr John Higgins, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 163; Department of the Environment and Heritage, supplementary
information, 1 April 1999, Attachment B, p 1.
[29] Senator the Hon Robert Hill, Senate Environment,
Communications, Information Technology and the Arts Legislation Committee,
Estimates Hansard, Wednesday, 10 February 1999, p 49.
[30] Clause 3(1) (a) – (e).
[31] For example, Albury Wodonga Environment
Centre, Submission 528, p 2; Lane Cove Bushland and Conservation Society
Inc, Submission 526, p2; The Bellingen Environment Centre, Submission
246, p 2; Dr Romaine Rutnam, Submission 183, p1; Australian Psychological
Society, Victorian Branch, Submission 215, p 2; Mr Peter Sims, Submission
253, p 2.
[32] Associate Professor Janet McDonald, Submission
152, p 1, and Proof Committee Hansard, Brisbane, 28 August
1998, p 298; Dr Felicity Coffey, Proof Committee Hansard,
Brisbane, 28 August 1998, pp 274-275.
[33] Professor D C Pearce, Statutory Interpretation
in Australia, 1996, p 119.
[34] Minerals Council of Australia, Submission
335, p 12.
[35] Environmental Defender's Office, Submission
15, p 6. Also, Mr James Johnson, Environmental Defender's Office, Proof
Committee Hansard, Sydney, 4 February 1999, p 84; TRAFFIC Oceania,
Submission 565, p 3; Ms Jane Holden, TRAFFIC Oceania, Proof Committee
Hansard, Sydney, 4 February 1999, p 95.
[36] Peter W Hogg, Liability of the Crown,
1989, p 23.
[37] Clause 5(2).
[38] Clause 5(5).
[39] Clause 5(3).
[40] Minerals Council of Australia, Submission
335, p 11.
[41] Part 13, Division 3.
[42] Mr Robert Adams, MLA, the Government of
Norfolk Island, Proof Committee Hansard, Sydney, 4 February
1999, p 114.
[43] Whale Protection Act 1980 –
section 6; Environment Protection (Impact of Proposals) Act 1974
– section 4; Endangered Species Protection Act 1992 –
section 13; World Heritage Properties Conservation Act 1980 - section
4; see also, the Government of Norfolk Island, Submission 474A, p 1.
[44] The Government of Norfolk Island, Submission
474, p 5.
[45] The Government of Norfolk Island, Submission
474, p 17. Also, Mr Peter Davidson, Government of Norfolk Island, Proof
Committee Hansard, Sydney, 4 February 1999, p 117.
[46] Clause 285, which makes provision for
a joint wildlife conservation plan as well (subclause (3)).
[47] For example, Mr Michael Kennedy, Humane
Society International and Dr Andy Davis, Australian Flora and Fauna Research
Centre, Proof Committee Hansard, Sydney, 4 February 1999, pp 97-98.
[48] Australian Local Government Association,
Submission 607, p 4. Also, Mr Clinton Garrett, Proof Committee Hansard,
Adelaide, 12 March 1999, p 203; Dr Judy West, Centre for Plant Biodiversity
Research, Proof Committee Hansard, Canberra, 4 March 1999, p 148.
[49] Senator the Hon Robert Hill, Address to
The Australian Local Government Association (ALGA) 1997 National General
Assembly of Local Government, 25 November 1997, Canberra, p 2 of 5.
[50] See further, Natural Heritage Trust at:
http://www.nht.gov.au/index.html.
[51] Dr John Higgins, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 180.
[52] Proof Committee Hansard, Adelaide,
12 March 1999, p 189.
[53] Proof Committee Hansard, Canberra,
4 March 1999, p 172.
[54] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 172.
[55] G Bates, Environmental Law in Australia,
p 389. Bates cites for instance, the Local Government Act 1993 (NSW),
s22 and the Local Government Act 1993 (Tas), ss199-204.
[56] Northern Land Council, Submission 614,
pp 25-27.
[57] Northern Land Council, Submission 614,
pp 26.
[58] Northern Land Council, Submission 614,
pp 26.
[59] For example, Mr Greg McIntyre, Kimberley
Land Council, Proof Committee Hansard, Perth, 26 February
1999, p 79; Professor Stephan Schnierer, College of Australian Indigenous
Peoples, Proof Committee Hansard, Sydney, 4 February 1999, p 108.
[60] Clauses 197(b), 212(b) and 255(b).
[61] Northern Land Council, Submission 614,
p 26.
[62] For example, Kowanyama Aboriginal Council,
Submission 278, p 2; Australian Aboriginal and Torres Strait Islander
Commission (Qld), Submission 156, p 1.
[63] For example, Mirimbiak Nations Aboriginal
Corporation, Submission 569, p 4; Cape York Land Council, Submission 599,
p 2; Mr Greg McIntyre, Kimberley Land Council, Proof Committee Hansard,
Perth, 26 February 1999, p 79; Injinoo Community Council, Submission 590,
p 1; Kimberley Land Council, Submission 600, p 3.
[64] D S Pearce, Statutory Interpretation
in Australia, p 16.
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