Chapter Seven
BILATERAL AGREEMENTS AND OTHER ACCREDITATION MECHANISMS
Introduction
7.1 Much of the Commonwealth environmental law regime was enacted at
a time when most States did not have any significant environmental legislation.
Duplication and overlap between Commonwealth and State environmental legislation
arose as the States developed their own environmental legislation:
most States have now enacted relatively comprehensive environmental law
regimes. In fact, some States have recently enacted their second or third
generation of environmental statutes. The evolution of State law has not
been adequately recognised in the Commonwealth's legislative framework,
thus hindering seamless and productive integration of Commonwealth and
State laws. [1]
7.2 In the absence of any formal recognition under Commonwealth legislation
of the States' legislative regimes, accreditation of State assessment
and approval processes is:
currently dealt with under an agreement pursuant to the Intergovernmental
Agreement on the Environment, the IGAE, which is an agreement signed in
1992. But it is simply a working matter between governments. It has never
had formal legislative recognition in the Commonwealth so the Commonwealth
has never been able to firmly accredit, if you like, a State process under
its own legislation. It has simply been something that it could take into
account in making its own separate decisions. [2]
7.3 The Government's policy is to address these deficiencies by providing:
- `up-front' accreditation of State processes;
- broader accreditation of State processes and systems (avoiding the
need to provide accreditation on a case-by-case basis for all projects);
and
- accreditation of State decisions (eg, for agreed management plans).
[3]
The Need for Bilateral Agreements
7.4 Submissions and evidence presented to the Committee contained a full
spectrum of views on the need for bilateral agreements. Some submissions
opposed the `delegation' of responsibility for matters of national environmental
significance to the States, which they viewed as an abrogation of responsibility
on the part of the Commonwealth. [4] There was
also little confidence in the States' willingness and ability to discharge
environmental responsibilities. For example, one witness told the Committee
that:
the environment movement is not terribly impressed with the performance
of State Governments of all political persuasions in terms of the way
that they approach environment protection and sustainability of development.
Although the Federal jurisdiction does not have a particularly pure track
record in that respect either, I guess we have got greater confidence
in the Federal jurisdiction on the basis of past performance. The Commonwealth
Government will stand up for the environment, and stand up for local communities
if needs be as well, and probably it does do a better job than the State
jurisdictions. [5]
7.5 In response to questioning on whether the legislation could operate
without bilateral agreements, Mr Beale, Secretary of the Department of
the Environment and Heritage, told the Committee that:
Constitutionally, the Commonwealth could simply say, `We are going to
have a set of direct powers and we will give all the approvals.' In an
administrative sense, that would require the establishment of a separate
planning and project approval process at the Commonwealth level to deal
with all of those processes, and it would require that industry and conservation
groups deal separately with two independent decision making processes.
All of that would be extremely costly and potentially duplicative. This
is not unlike the situation under the Environment Protection Authority
in the United States.
Hence, where you can satisfy yourself that a State process will meet
your objective, make sure that it does, and have that concreted into a
bilateral agreement, it will provide for a smoother, more efficient, more
cost effective process for all concerned.
But the Commonwealth's right to do it by itself, if it cannot reach a
bilateral agreement, or if the State falls down in its implementation
of the bilateral agreement, has to be preserved or the Commonwealth would
be in no position to lever the improvement in State activities in relation
to NES that this bill seeks to secure. [6]
7.6 Most witnesses agreed that there was a need for some form of accreditation
of State processes under the Bill. In particular, State governments, which
contributed to the development of the concept of bilateral agreements,
supported its incorporation into the Commonwealth's legislative framework:
In relation to the concept of using bilateral agreements through a legislative
framework, which we do not currently have, that is supported as a concept
to enable accreditation of decisions and approval processes. [7]
7.7 Industry groups were also very supportive:
We think there is significant potential proposed to reduce duplication
between Commonwealth and States and to streamline project approvals. The
proposed accreditation of State processes and the codification of matters
of national environmental significance could be a substantial step forward
in the Commonwealth-State handling of environmental issues. [8]
7.8 Key conservation groups acknowledged the value of accrediting State
processes within a legislative framework:
WWF notes that in a number of instances the Commonwealth in an ad
hoc way already negotiates bilateral agreements covering some classes
of land of national environmental significance such as management plans
for World Heritage sites. We would welcome any attempt to codify that
sort of arrangement in a transparent and accountable manner. [9]
7.9 Conservation groups, however, suggested limiting accreditation to
State assessment processes, with the Commonwealth retaining the
approval role. [10] Reasons given for retaining
the Commonwealth approval role included the Commonwealth's responsibility
for international obligations, the status of the Commonwealth government
as a national government exercising responsibility in areas of national
relevance and importance, \DB\PGN\194public expectations, and the inability
of the States to take the national interest into account. [11]
Another rationale given for limiting accreditation was that the COAG Agreement
does not clearly envisage the accreditation of State decisions. [12]
7.10 Some witnesses suggested that certain matters, such as nuclear actions,
should be left out of bilateral agreements altogether. [13]
7.11 In response to these arguments Mr John Scanlon of the South Australian
Department for Environment, Heritage and Aboriginal Affairs told the Committee:
We believe that there ought to be capacity to accredit both process and
decision. The minister of the day may take a particular view in relation
to where a decision is going to be accredited, but we believe the capacity
should be there for accrediting both the assessment process and the ultimate
decision as well, and we also believe bilaterals should be broad enough
to encompass enforcement provisions as well. [14]
7.12 In the Committee's view, the duplication of Commonwealth and State
environmental assessment and approval processes is undesirable, as it
results in additional costs to governments and the community, and may
not result in better outcomes with respect to ecologically sustainable
development. There is clearly a need to provide for early, transparent
and effective accreditation of State processes and systems. The Committee
considers that bilateral agreements provide a sensible and appropriate
mechanism for addressing that need.
7.13 The Committee does not endorse any of the reasons given for limiting
accreditation only to State assessment processes. It is quite clear that
the COAG Agreement provides for the accreditation of State decisions:
Bilateral agreements will provide for Commonwealth accreditation of State
processes and, in appropriate cases, State decisions (for example agreed
management plans). [15]
7.14 The implementation of international obligations relating to matters
covered in the Bill is a responsibility which is shared by all governments
in Australia. It is appropriate that State Governments which can meet
the required Commonwealth standards be accredited to make approval decisions
relating to matters of national environmental significance.
7.15 The Committee also does not agree with the argument that bilateral
agreements provide a means for abrogating Commonwealth responsibility
for matters of national environmental significance, as bilateral agreements
will be subject to appropriate Commonwealth oversight, are subject to
suspension and cancellation in the event of non-compliance, and where
a bilateral agreement is suspended or cancelled the Commonwealth retains
the ability to apply its own environmental assessment and approval process.
7.16 The Committee therefore considers that it is appropriate for the
Bill to provide for the accreditation of State approval processes, subject
to the State processes meeting Commonwealth requirements set out in the
Bill and regulations.
The Nature and Scope of Bilateral Agreements
Proposed Scope
7.17 Bilateral agreements are defined in clause 45(2) of the Bill as
a written agreement between the Commonwealth and a State or self-governing
Territory, that is expressed to be a bilateral agreement and provides
for one or more of the following:
- protecting the environment;
- promoting the conservation and ecologically sustainable use of natural
resources;
- ensuring an efficient, timely and effective process for environmental
assessment and approval of actions; and
- minimising duplication in the environmental assessment and approval
process through Commonwealth accreditation of the processes of States
and Territories.
7.18 Clauses 46-49 outline the contents of bilateral agreements, including
the declaration of classes of actions not needing approval or assessment
under the Bill.
Examples of Bilateral Agreements
7.19 In view of the novelty of bilateral agreements, many witnesses expressed
concern about their possible contents and scope. A number of witnesses
suggested that Regional Forest Agreements provided a model for bilateral
agreements. [16]
7.20 The Department of the Environment and Heritage, however, did not
view RFAs as a model for bilateral agreements, pointing out there were
significant differences:
RFAs do not provide for up-front accreditation of State processes, environmental
assessment and approval processes, which the Bill does. RFAs are developed
after there has been a comprehensive assessment within the region concerned
of environment and heritage values. Those assessments are not necessary
under the Bill for obvious reasons. RFAs may not meet all of the prerequisites
for a bilateral agreement. You are familiar with what those are and, of
course, RFAs have not been developed under the framework of the Bill or,
indeed, under any unified legislative framework. RFAs have a life of 20
years and bilateral agreements have a life of a maximum of five years.
[17]
7.21 Mr Beale indicated that possible examples of bilateral agreements
were a management plan for a World Heritage property or Ramsar wetland
which authorised classes of action and excluded other classes of action,
and an agreement that provides standards for environmental impact assessment
process relating to matters such as public consultation. [18]
7.22 Mr John Scanlon, on behalf of the South Australian Government, indicated
the matters which he envisaged would be covered by bilateral agreements:
What we are going through at the moment is a process of working with
all relevant State Government agencies to identify where the areas are
where we believe bilateral agreements may be required. We have not concluded
that process because we are waiting to see which way this Bill might go.
We are identifying and, for example, the obvious ones are development
act processes, which includes our environmental impact assessment process,
and the Environment Protection Act with our environmental \DB\PGN\188authorisations.
They are two, if you like, very obvious ones where bilateral arrangements
will need to be in place, but then we have got a whole series of other
things. [19]
Legal Status
7.23 Questions were raised in the hearings about the legal status of
bilateral agreements and the implications of a potential High Court finding
that they have no legal status. Mr Beale explained:
The bilateral agreement clearly has the legal status provided for it
under the Bill; that is, it provides a basis on which actions that would
otherwise be caught by the Bill can be dealt with under the State legislation,
and it is within the Commonwealth's constitutional competence to provide
for that. [20]
7.24 Advice from the Attorney-General's Department confirmed that, while
bilateral agreements would not be justiciable, they would be enforceable
through injunctions. [21]
7.25 The Committee concludes that a bilateral agreement is clearly a
formal agreement which is recognised and given force under the Bill.
Standards and Criteria for Accreditation
Adequacy of Accreditation Requirements
7.26 A large number of submissions criticised the Bill on the grounds
that it contains few environmental standards in relation to bilateral
agreements. One witness compared the criteria in the Bill with those set
out for wildlife harvesting:
there are very few criteria in the Bill about which factors should be
considered within the bilateral agreements. If you compare this to the
Wildlife Protection Act, in which the Commonwealth can approve State management
plans, you will see that has very set criteria for the standards the States
have to meet in their wildlife management plans. In this Bill there are
no criteria set. This means there are going to be no uniform standards
across the country. This does not seem fair on individuals in the States
or on the States themselves … [22]
7.27 Key conservation groups were concerned that the standards set out
in clauses 51 to 55 are `vague, non-binding and weakened by Ministerial
discretion' and that the Bill provided too much discretion to set detailed
standards in the regulations. [23] Several
witnesses claimed that the Bill would contribute to driving down environmental
standards to the lowest common denominator. For example, Mr John Connor
of the Nature Conservation Council of New South Wales stated that the
Bill:
just does not provide a secure and certain framework that would prevent
the bargaining between the States and the driving down of environmental
protection in a number of States. There is plenty of evidence in other
states, and Victoria is a good example, of beginning a bidding war in
terms of weakening various standards in a whole range of areas. I do not
think this should be allowed. This is the opportunity for the Commonwealth
to lay down a very clear framework. [24]
7.28 Mr Michael Krockenberger of the Australian Conservation Foundation
told the Committee that minimum safeguards were required in the following
areas: freedom of information, judicial review and other citizens' protection
measures; accreditation only where best practice is implemented by the
States; monitoring and auditing of implementation; and participation by
the community in the development of bilaterals. He added that:
We believe the Commonwealth Minister for the Environment has too much
discretion on whether State processes are adequate for recognition as
suitable for bilateral agreements. The Bill should outline the processes
by which the baseline national standards will be developed and reviewed.
The use of regulations for national standards we find unacceptable, and
the linkages between this Bill and standards developed through other means,
such as through the NEPMs and ANZECC, need to be clarified. We have grave
concerns about the nature of agreements between the States and the Commonwealth,
both in their formulation and their implementation. [25]
7.29 Mr James Pittock of the World Wide Fund for Nature Australia proposed
that the Bill be amended to:
ensure that draft bilateral agreements are published for public comment;
that that public comment has to be taken into account by the Minister;
that the proposed final bilateral agreement is disallowable by either
House of Parliament; that those agreements include implementation plans
with performance criteria; that they are reviewed on a triennial basis
and that, if States and Territories fail to live up to those bilateral
agreements, they can be cancelled. [26]
7.30 In response, Mr Beale outlined a range of safeguards in the Bill:
Some groups have asserted that the Bill does not contain sufficient safeguards
in relation to these agreements. We disagree. There will be no lowest
common denominator effect. For example, the Minister can enter into a
bilateral agreement relating to listed threatened species and ecological
communities only if satisfied that the agreement, as set out in clauses
50 and 53, accords with the objects of the Bill; is not inconsistent with
Australia's obligations under the Biodiversity Convention, the Apia Convention
or CITES; will promote the site survival and/or enhance the conservation
status of each species or community to which it relates; and is not inconsistent
with any recovery plan for the species or community or a threat abatement
plan. Similar safeguards are built into the Bill in relation to each of
the other matters of NES.
A further safeguard is that the Minister may cancel or suspend all or
part of a bilateral agreement if the State is not giving effect to it,
or if the state is giving effect to the agreement in a manner that does
not accord with the objects of the Bill. That is set out in clause 59.
Section 99 of the Constitution more broadly would prohibit the Commonwealth
from giving preference to one State over any other State by signing a
bilateral agreement of patently different standards. Bilateral agreements
will include provisions for auditing and monitoring compliance. [27]
7.31 In addition, the Committee notes that the Bill includes the following
requirements:
- The Minister may enter into a bilateral agreement accrediting a State
approval process only if satisfied that each person approving an action
will, in deciding whether to approve the action, adequately consider
the relevant impacts of that action (clause 46(2)).
- The Minister may enter into a bilateral agreement accrediting a State
assessment process only if satisfied that the relevant impacts of an
action on matters protected by the Bill will be assessed (clause 47(3)).
Such an agreement must provide for the Minister to receive a report
with enough information about the relevant impacts of the action to
let the Minister make an informed decision about the approval (clause
47(4)).
- A provision of a bilateral agreement has no effect to the extent that
it is inconsistent with the Act or regulations (clause 48(2)).
7.32 Mr Beale also indicated how standards would be established:
That obviously varies. In relation to a World Heritage area management
plan, there is a set of obligations under the treaty and under the legislation
to protect, conserve and present the area that provides a framework within
which you operate. But the particular standards in relation to a particular
World Heritage area will depend upon the values that are to be protected.
Is it a national park? Is it an area where \DB\PGN\170multiple use is
consistent with the conservation of those World Heritage values? That
could be quite specific, but the common thread to all of it is that obligation
to protect, conserve and present.
…with something like impact assessment, the standards might relate
much more to identifying minimal obligations in relation to consultation,
review, transparency of process, and so on. Some of those issues are described
in the existing intergovernmental agreement on impact assessment. We would
need to look at those and assess how they should be brought into concert
with this Bill and reflected in the bilateral agreement. [28]
7.33 Asked why various `process' standards which have been developed
over the twenty years of the application of the EPIP Act could not be
included in the Bill, Mr Beale responded:
Those processes have changed and improved very significantly over …
the life of the EPIP Act. That Act has been in place for 24 years, since
1975. If we had had to amend the Act on each occasion that we revisited
and improved those standards, it would have added significantly to parliamentary
workload without, one could suggest, improving the end product. We have
to have a framework that allows the Parliament … to set out the fundamentals
in the Act that enable the areas that could be subject to change over
time, where that change does not do any violence to the objects and obligations
under the Act, to occur in a more delegated way and in a more administrative
way. [29]
7.34 Arguments that the prerequisites for bilateral agreements set out
in the Bill are vague, non-binding and weakened by Ministerial discretion
do not withstand scrutiny. First, in the Committee's view the prerequisites
are sufficiently precise. For example, the Minister must consider whether
a provision in a bilateral agreement relating to a listed threatened species
is inconsistent with any recovery plan for the species. Such a plan may
contain very specific objectives and actions, such as the control of activities
which have an impact on the species, the management of critical habitat,
the development and implementation of codes of conduct, monitoring, and,
where necessary, the development of additional regulations.
7.35 Secondly, the prerequisites are legally binding, as they are mandatory,
not optional, requirements set out in the Bill.
7.36 Thirdly, the Committee believes that entering into a bilateral agreement
must involve the exercise of judgement and discretion on a wide range
of complex issues. It would not be possible to set out absolute prerequisites
for entering into a bilateral agreement which could be followed in a mechanical
way. If Ministerial discretion regarding the prerequisites is not exercised
in a reasonable way, the decisions will be subject to judicial review.
7.37 With regard to the criticism that too much of the setting of standards
is left to regulations, the Committee considers that an appropriate balance
has been struck between setting out the fundamental prerequisites in the
Bill and allowing for the development of additional, more specific requirements
in regulations. This is consistent with the approach adopted in a broad
range of Commonwealth legislation. For example, contrary to the claims
provided in evidence in relation to the Wildlife Protection (Regulation
of Exports and Imports) Act 1982, general criteria for approved management
plans covering wildlife harvesting are set out in the Act, while the more
detailed criteria are set out in the regulations. Furthermore, in the
Committee's judgement, the prerequisites for bilateral agreements relating
to threatened species under the EPBC Bill are, in fact, far more stringent
than the criteria set out in the Wildlife Protection Act. [30]
7.38 The Committee considers that the prerequisites set out in the Bill
are stringent enough to ensure that the Minister only enters into bilateral
agreements which can meet the objectives of the Bill. The Committee also
considers that these prerequisites are appropriately framed as durable
outcome-oriented standards. A more prescriptive approach would limit the
ability to recognise valid differences in the legislation and procedures
of the various States. It would also require more frequent amendment of
the Commonwealth legislation, as environmental practices and knowledge
evolved.
National Consistency
7.39 Some submissions expressed concern about the level of national coordination
and consistency in environmental standards that will be possible through
bilateral agreements. One witness illustrated this point in relation to
wildlife harvesting:
Our problem is that Australia does not divide up neatly into nine environments.
What may be okay in one State, when you look at the cumulative effect
of the harvest in all States, it may have a much, much greater effect
on an overall national level. The Commonwealth completely delegates all
responsibility for both assessment and approval of a harvest across Australia.
We are not going to know what the effects are at a national level of individual
harvests in each State. A State can only look at what is going on within
the State, and not at what is going on at a national level. We do not
think it is appropriate for the Commonwealth to delegate this oversight
power to the States. [31]
7.40 It was often suggested that standards that are common to all jurisdictions
should be put in place before proceeding with developing bilateral agreements.
One witness suggested a national scheme of legislation, along the lines
of the Corporations Law, for environmental matters. [32]
7.41 The Committee considered whether greater consistency might be achieved
by negotiating multilateral, rather than bilateral, agreements. On this
issue Mr Beale stated that:
One of the reasons for bilateral agreements, of course, is the need to
respond to the different legislative frameworks that States have for planning
an approval process, endangered species processes, and so on. I think
it would be overly ambitious for us to attempt to negotiate one totally
unified national set of planning and environmental approval legislation.
That means that we have to work with each State and relate our objective
to that State's legislative framework.
I am not sure whether there might be some areas where a number of States
are involved which have a specific interest. I think, by its nature, that
a bilateral would have two parties, but, if you were jointly managing
an activity, you would want to look for at least some complementarity
of the content. [33]
7.42 Mr Beale described recent attempts to reach consistency and noted
that bilateral agreements will complement multilateral approaches:
The Commonwealth has been trying to work at getting consistency –
indeed, the States have as well – through, for example, the discussions
on impact assessment pursuant to the Intergovernmental Agreement on the
Environment. There have been working groups under the Australian and New
Zealand Environment and Conservation Council – ANZECC – that
reached an agreement late last year on standards for environmental assessment.
In a way, by providing for bilateral agreements to receive particular
recognition under this Bill, you provide a much greater incentive for
that level of consistency, but they are still bilateral agreements rather
than multilateral agreements because you do want to recognise differences
as well. [34]
7.43 In response to questions from the Committee as to whether the National
Environment Protection Council, responsible for the development of National
Environmental Protection Measures, provided a model for achieving nationally
consistent standards for bilateral agreements, one witness suggested that:
It is one of those scenarios where you have a lot of States and only
one Commonwealth. It is very difficult to get through that sort of process
the highest common denominator rather than the lowest common denominator.
Certainly, we have had concerns. There has been a lot of opportunity to
set up a measure that would be making an incredible difference to the
environment in Australia but what has happened instead is that something
that is fairly lukewarm, something that the States could live with, has
come into being and sometimes the standards are not up to what a State
is doing.
There are things about that model which are probably good in the sense
that you do have different stakeholders involved in the process, but there
is a whole range of complexity with it as well and there have been concerns
about who is actually making the decisions at the end of the day. I do
not think that will provide a good example of a model of best practice.
[35]
7.44 In response to similar questioning, Mr David Buckingham, Executive
Director of the Business Council of Australia, pointed out that it is
through the standards reflected in the Bill that consistency between States
will be achieved:
My expectation is that the Commonwealth would be working to the standards
that are mapped out in this legislation. That would be where you would
actually find the measure of consistency. You will obviously have to have
regard to the different circumstances of each State. For example, the
models as between Victoria and New South Wales, and Queensland and Western
Australia, are different when it comes to environmental impact assessment
procedures. That will necessitate some degree of variation in the process,
\DB\PGN\313but the principles that should inform the approach to the bilaterals
I would suggest should be the principles that are being articulated in
this legislation. [36]
7.45 The Committee appreciates the need for consistency in bilateral
agreements with the various States and Territories. The view of the Committee
is that this consistency can be achieved within the framework proposed
in the Bill, recognising that bilateral agreements need not be identical
and may reflect the different circumstances of each State or Territory.
A nationally consistent, but flexible, approach to bilateral agreements
will be made possible under the Bill through the establishment of one
uniform set of Commonwealth prerequisites and standards set in the Bill
and regulations.
Adequacy of State Processes
7.46 Many witnesses voiced reservations about the adequacy of State and
Territory processes for environmental assessments and approvals and were
concerned that these processes would be accredited despite existing flaws
in those processes. [37]
7.47 The Committee considers that the question of whether State processes
should be accredited is a matter for the Government to consider in the
implementation of the Bill. The Committee is satisfied that the Bill contains
sufficient safeguards to prevent the accreditation of State processes
which do not meet the requirements set out in the Bill and any regulations.
Enforcement of Bilateral Agreements
7.48 The Bill provides for a number of safeguards in relation to bilateral
agreements through compliance and enforcement provisions. Clause 48 provides
for bilateral agreements to include provisions for auditing, monitoring,
and reporting on the operation and effectiveness of all or part of the
agreement. Clauses 57 to 63 empower the Minister to cancel or suspend
all or part of a bilateral agreement either generally or in relation to
actions in a specified class. The Minister may cancel or suspend all or
part of a bilateral agreement if he or she is satisfied that the relevant
State or Territory has not complied or will not comply with the agreement,
or has not given or will not give effect to the agreement in a manner
which is consistent with the objects of the Act and that promotes the
discharge of Australia's relevant international obligations. [38]
Ease of Suspension or Cancellation
7.49 Key industry groups submitted that the `apparent ease with which
bilateral agreements can be suspended or terminated raises issues of uncertainty
for industry'. [39] They argued that:
Given the objects of the Act it is unclear what purpose would be served
or how the environment would be better protected by ending an agreement,
particularly given the unilateral assessment of contravention by the Commonwealth
and lack of provision for review, appeal, mediation or time to comply.
[40]
7.50 The Committee believes that without the ultimate sanction of suspending
or cancelling a bilateral agreement, the Commonwealth would not be able
to ensure compliance with the agreements or meet the objects of the Bill.
7.51 The Committee considers that the ease with which the Minister may
suspend or cancel an agreement is overestimated. A decision to suspend
or cancel an agreement with a State would not be taken lightly by any
Commonwealth Minister. Furthermore, a bilateral agreement could only be
cancelled at the request of the relevant State, or where the State fails
to comply with the agreement (clause 59(1)) and consultations with the
appropriate State Minister have occurred (clause 58). The requirement
to consult with the State would provide ample opportunities for the parties
to the agreement to discuss the alleged non-compliance, come to any agreement
on the handling of the matters raised in the consultations, and, where
appropriate, agree on a timetable for bringing the State into compliance
with the agreement.
7.52 The Committee does not agree with the proposition that the Bill
should provide for a mediation or appeal mechanism to deal with disputes
between the Commonwealth and the State. Bilateral agreements will effectively
allow the States to operate on behalf of the Commonwealth in relation
to the protection of matters of national environmental significance. It
is appropriate for the Commonwealth Environment Minister to be the final
arbiter of whether these delegated responsibilities are being satisfactorily
discharged. If a dispute cannot be resolved through consultation and negotiation,
or if the Minister does not exercise his or her powers in accordance with
the law, remedies would be available in the courts.
Effect of Suspension or Cancellation on Proposals
7.53 Key industry groups sought clarification of the implications of
the suspension or cancellation of a bilateral agreement on projects. [41]
7.54 Mr Beale indicated that, where a bilateral agreement is suspended
or cancelled, clause 64 provides that an action which had been taken in
a manner consistent with the bilateral agreement (that is, the action
was not in breach of the bilateral agreement or Act) may continue as if
the agreement was still in force. [42] He added
that if an action is approved in breach of a bilateral agreement, that
action is not protected by clause 64:
Again, if you have a project that clearly should not have been approved
under the bilateral agreement – because it damages the fundamental
values that the bilateral agreement is attempting to protect – that
can be: (1) a cause for suspending the bilateral agreement; and, (2) when
the bilateral agreement is suspended, the Commonwealth would not be precluded
or constrained by the purported agreement by the State under the bilateral
agreement from using the powers under the Act. [43]
7.55 The Department of the Environment and Heritage provided a hypothetical
example to illustrate the implications of suspending or cancelling a bilateral
agreement:
A bilateral agreement may specify that approvals granted by the State
are accredited if they are consistent with a management plan for a Ramsar
wetland. Suppose the Commonwealth suspended the bilateral agreement (for
any reason). The State continues to approve the building of a motel in
a part of the wetland zoned for no development under the management plan,
then the approval granted by the State would not be valid, since it was
not given in the specified manner, and the Commonwealth would be free
to take action against the proponent under the proposed EPBC Act to prevent
the action proceeding. [44]
7.56 The Committee considers that the Bill provides appropriate protection
for proponents who hold a legitimate approval in the event of the suspension
or cancellation of a bilateral agreement, while allowing the Commonwealth
to take necessary steps to remedy situations where an action has been
approved in breach of the bilateral agreement. Such remedies would include
requiring a Commonwealth approval and, where necessary, civil penalties
and injunctions.
Time Limits for Suspension and Cancellation
7.57 The Environmental Defender's Office suggested that clause 59 be
amended to provide that significant and sustained non-compliance with
a bilateral agreement would prohibit renewal of accreditation for a period
of no less than three years. Other witnesses suggested that there should
be an upper time limit on the emergency suspension of an agreement. [45]
7.58 The Committee does not accept that such time limits would be useful.
Clause 59 provides that the notice of suspension must specify that the
suspension will end on a particular day or after a specified event. The
Minister may also revoke the suspension at an earlier date if the Minister
is satisfied that the State or Territory will comply with the agreement.
Some discretion must be granted to the Minister to decide the appropriate
period of suspension or cancellation to suit the circumstances. An inflexible
`black ban' approach to the renewal of bilateral agreements would preclude
cooperative resolution of any dispute between the Commonwealth and the
relevant State. It also ignores the possibility of changes in circumstances,
including a change of government in the State.
Public Involvement in Enforcement
7.59 A number of witnesses called for provisions enabling public enforcement
of bilateral agreements. [46]
7.60 The Committee notes that clause 57 enables a person to refer to
the Minister a matter that he or she believes involves a contravention
of a bilateral agreement. In such cases, the Minister must decide whether
or not the bilateral agreement has been contravened, decide what action
he or she should take in relation to any contravention, and publish the
decision and reasons for the decision.
7.61 The Bill will also enable individuals and organisations with standing
to enforce a bilateral agreement indirectly through the provisions on
injunctions. The Attorney-General's Department has advised the Department
of the Environment and Heritage that an action which is approved or taken
in breach of a bilateral agreement would be a contravention of the Bill.
Persons with standing under the Bill (see discussion on standing in Chapter
11, below) could apply to the Federal Court for an injunction restraining
a person from taking such an action. [47]
7.62 The Committee is therefore satisfied that the Bill already adequately
provides for public involvement in the enforcement of bilateral agreements.
Review of Bilateral Agreements
7.63 Clause 65 provides that bilateral agreements will expire after five
years or at an earlier date specified in the agreement. The Minister must
cause a review of the operation of a bilateral agreement to be carried
out before the agreement ceases to have effect, and a report of the review
must be published.
7.64 Some witnesses felt that a period of five years between reviews
is too long and suggested that agreements should expire after three years.
[48] Witnesses did not provide any further
rationale for a three year period for bilateral agreements.
7.65 The Environmental Defender's Office also recommended that the Bill
should specify that the purpose of a review is: `to examine the implementation
of the bilateral agreement; to examine compliance with the bilateral agreement;
and to consider the effectiveness of the environmental protection provided
under the agreement'. [49]
7.66 The Committee appreciates the need for regular review of bilateral
agreements. The Committee notes, however, that the Bill only provides
for bilateral agreements to have a maximum life of five years –
the terms of a bilateral agreement may include expiry after a period of
less than five years. The Committee also considers that the provisions
relating to auditing, monitoring, reporting, suspension and cancellation
provide ample scope for the Commonwealth to investigate and address any
non-compliance or difficulties relating to the operation of a bilateral
agreement at any time. The Committee, therefore, sees no need to amend
the current provisions of the Bill.
7.67 The Committee notes that clause 65(2) requires the Minister to cause
a review of the `operation of the bilateral agreement'. The matters suggested
by the Environmental Defender's Office for inclusion in the purposes of
a review will necessarily be considered in such reviews.
Preferential Treatment of States
7.68 Key industry groups queried whether the conclusion of a bilateral
agreement covering nuclear actions with one State and not another would
give preference to that State and thereby contravene section 99 of the
Constitution. [50] The ACF also queried whether
bilateral agreements in general do not breach section 99:
It might be that a State is advantaged because a bilateral allows it
to have an EIS process which is less than that of another State and, if
it is a matter of choosing between one State and another, a major project
might go to the one with the lesser EIS. So it is not clear to us that
that is not a constitutional issue. Also, the department has indicated
that they are uncertain on this. They said that they would be seeking
advice. It would be interesting to see that advice. So that is the concern
there. [51]
7.69 Section 99 of the Australian Constitution states: `The Commonwealth
shall not, by any law or regulation of trade, commerce, or revenue, give
preference to one State or any part thereof over another State or any
part thereof'. This section has been interpreted to apply to Commonwealth
laws relating to corporations, as well as trade, commerce and revenue.
7.70 The Department of the Environment and Heritage provided legal advice
from the Attorney-General's Department, indicating that section 99 of
the Constitution would apply to the provisions governing bilateral agreements
relating to nuclear actions, as the provisions relating to the approval
of nuclear actions rely on the Commonwealth's constitutional powers relating
to trade, commerce, corporations and territories. [52]
Similarly, section 99 would apply to provisions relating to matters of
national environmental significance prescribed in regulations under clause
25. The Committee notes that clauses 55 and 56 give effect to this constitutional
requirement, by providing that the Minister must not enter into a bilateral
agreement containing a provision that has the effect of giving preference
to one State or part of a State over another State or part of a State.
7.71 The Committee understands that a law which is drafted in uniform
terms but is given different effects by different conditions in the States
does not breach section 99 of the Constitution. The Committee considers
that the question of preference does not arise where the Minister has
applied the provisions of the Bill in a non-discriminatory way, but is
unable to enter into an agreement with one or more States, for example,
because their environmental assessment and approval processes do not meet
the requirements set out in the Bill and any regulations.
7.72 The Committee notes that section 99 of the Constitution is not relevant
to bilateral agreements dealing with other matters of national environmental
significance (World Heritage, Ramsar wetlands, threatened species, migratory
species, Commonwealth marine areas), as the provisions covering those
matters rely on the external affairs power. [53]
Other Accreditation Mechanisms
Accreditation of Commonwealth Processes by Minister
7.73 Under clause 33 of the Bill the Minister may declare that certain
classes of action do not require approval for the purposes of Part 3 if
approved by the Commonwealth or a specified Commonwealth agency under
an accredited process.
7.74 A number of submissions and witnesses raised concerns about the
lack of standards and environmental safeguards relating to declarations.
[54]
7.75 The Committee notes that clause 33(2) provides that the Minister
may make a declaration only if satisfied that the Commonwealth or Commonwealth
agency accredited to approve the taking of an action will consider the
impacts the action has, will have or is likely to have, on the matter
protected by the provision.
7.76 The Committee notes, however, that the prerequisites set out in
clauses 50 to 56, which apply to bilateral agreements, do not appear to
apply to declarations. The Committee believes that equivalent provisions
should apply to accreditation of State and Commonwealth processes.
Recommendation 9
The Committee recommends that the Bill be amended to apply prerequisites,
which are equivalent to those set out in clauses 50 to 56 for bilateral
agreements, to the making of declarations.
Case-by-case Accreditation
7.77 Clause 87(4) enables the Minister to accredit, on a case-by-case
basis, a Commonwealth agency or State to assess the impacts of a proposed
action, where that action is not covered by an existing bilateral agreement
or declaration. Several submissions opposed case-by-case accreditation:
The Environment Minister can approve once-off `special accreditation
processes', with almost no environmental safeguards, for individual projects,
and no public consultation. As with the accreditation and delegation mechanisms
described above, this is a mechanism with no binding standards and a great
deal of Ministerial discretion. This is quite inappropriate, and (as with
delegation to other Government Departments) has the potential to completely
undermine the Bill's main assessment process. [55]
7.78 Key conservation organisations were also concerned that the Minister
is obliged to accept the results of the assessment process and decide
on the approval, `regardless of the ultimate quality of the assessment'.
[56] Mr Johnson told the Committee that flawed
processes would be adopted under these provisions to approve proposals
without transparency or accountability:
We are concerned that incorporating things like specially accredited
processes into this legislation again enables the Minister for the environment
on this occasion to tailor an environmental impact assessment process
to a particular proposal by a particular proponent. In terms of equity,
transparency and accountability, I see that as being one of the worst
results of this legislation. Effectively, you can make up an assessment
process on \DB\PGN\83the run. Spending an hour in the library would be
an environmental impact statement process under this legislation. [57]
7.79 The Explanatory Memorandum describes the purpose of specially accredited
processes and standards that such processes must meet:
The option of assessment by a specially accredited process ensures there
can be up-front accreditation of a State or Territory process or of another
Commonwealth process. It therefore provides for case-by-case accreditation
of State or Commonwealth processes for actions not covered by a bilateral
agreement or a declaration. Subclause 87(4) provides that an assessment
can only be made by a specially accredited process if the Minister is
satisfied that the process meets standards prescribed by the regulations,
will assess all relevant impacts, and will provide a report containing
enough information to allow the Minister to make an informed decision
about whether to approve the action. [58]
7.80 The Committee considers that the standards described above provide
fundamental safeguards regarding the selection of a specially accredited
process. The Committee rejects the spurious argument that `spending one
hour in the library' would meet any of these requirements.
7.81 It is also clear that the Minister is not obliged to accept the
results of a specially accredited process regardless of the quality of
the assessment. Under clause 132 the Minister would be able to request
additional information from the person proposing to take the action or
the designated proponent if he or she believes on reasonable grounds that
he or she does not have enough information to make an informed decision
about whether or not to approve the action.
7.82 Clause 145 of the Bill would also enable the Minister to suspend
or revoke an approval granted on the basis of a specially accredited process
if the Minister believes that the approved action will have a significant
impact that was not identified in the assessment and the approval would
not have been granted if information that the Minister has about that
impact had been available when the decision to approve the action was
made. Together, these clauses provide the ultimate safeguards ensuring
that the use of specially accredited processes result in outcomes consistent
with the objectives of the Bill.
Accreditation of Commonwealth Processes by a State
7.83 Clauses 166 to 170 provide for a State or Territory to accredit
the Commonwealth assessment process set out in Parts 8 and 10 for actions
that fall under State, but not Commonwealth, responsibility. The Bill
thus provides for mutual accreditation by the Commonwealth and States
and Territories.
7.84 Key industry groups were concerned about whether the Bill would
empower the States to recognise Commonwealth processes and thereby bypass
their own:
industry is concerned that the existing laws in some States and Territories
do not specify provisions for the State to forgo its assessment and approvals
processes in favour of the Commonwealth. It is presumed that this Bill
would not so empower them, and that to achieve the efficiencies described,
the relevant States and Territories would not only need to sign an agreement
with the Commonwealth, but would need to amend their own legislation.
This Bill would need to specifically recognise this possibility. [59]
7.85 It is clear that the Bill alone does not empower States to accredit
Commonwealth processes, but will depend on the legislative scheme of each
State. The Committee believes it would be inappropriate for the Bill to
attempt to override existing State legislation to enable accreditation
of Commonwealth processes. The Committee is of the view that any amendment
of State legislation needed for this purpose is a matter for each State
to decide.
Footnotes
[1] Explanatory Memorandum, p 6.
[2] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 167.
[3] Senator the Hon Robert Hill, Minister for
the Environment, Senate Hansard, 2 July 1998, p 4797.
[4] For example, Ms Meredith Stokes, Submission
116, p 1; Mrs A Dillon, Submission 112, p 2; Dr D Duckhouse,
Submission 138, p 2.
[5] Mr Lindsay Holt, Queensland Conservation
Council, Proof Committee Hansard, Brisbane, 28 August 1998, p 261.
[6] Proof Committee Hansard, Canberra,
4 March 1999, p 168.
[7] Mr John Scanlon, Department for Environment,
Heritage and Aboriginal Affairs (SA), Proof Committee Hansard,
Adelaide, 12 March 1999, p 185.
[8] Mr Dick Wells, Minerals Council of Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 99.
[9] Mr James Pittock, World Wide Fund for Nature
Australia, Proof Committee Hansard, Canberra, 4 March 1999,
p 132.
[10] Mr James Johnson, Environmental Defender's
Office, Proof Committee Hansard, Sydney, 4 February 1999, p 79.
[11] Professor Robert Fowler, Australian Centre
for Environmental Law, University of Adelaide, Proof Committee Hansard,
Adelaide, 12 March 1999, pp 193-194; Mr Michael Krockenberger, Australian
Conservation Foundation, Proof Committee Hansard, Melbourne, 18
March 1999, p 280; Mr Trevor Blake, Submission 100, p 1.
[12] Professor Robert Fowler, Australian Centre
for Environmental Law, University of Adelaide, Proof Committee Hansard,
Adelaide, 12 March 1999, p 194.
[13] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 283.
[14] Proof Committee Hansard, Adelaide,
12 March 1999, p 188.
[15] Council of Australian Governments, Heads
of Agreement on Commonwealth/State Roles and Responsibilities for the
Environment, p 15.
[16] For example, Dr Richard Donaghey, Proof
Committee Hansard, Hobart, 19 February 1999, p 42.
[17] Mr Howard Bamsey, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
p 167.
[18] Proof Committee Hansard, Canberra,
4 March 1999, p 167.
[19] Mr John Scanlon, Department for Environment,
Heritage and Aboriginal Affairs (SA), Proof Committee Hansard,
Adelaide, 12 March 1999, pp 187-188.
[20] Proof Committee Hansard, Canberra,
4 March 1999, p 178.
[21] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment B, p 6.
[22] Ms Jane Holden, TRAFFIC Oceania, Proof
Committee Hansard, Sydney, 4 February 1999, p 90.
[23] Environmental Defender's Office, Submission
15, pp 12-13.
[24] Proof Committee Hansard, Sydney,
4 February 1999, p 130.
[25] Proof Committee Hansard, Melbourne,
18 March 1999, p 280.
[26] Proof Committee Hansard, Canberra,
4 March 1999, p 132.
[27] Proof Committee Hansard, Canberra,
4 March 1999, p 160.
[28] Proof Committee Hansard, Canberra,
4 March 1999, pp 169-170.
[29] Proof Committee Hansard, Canberra,
4 March 1999, p 170.
[30] Section 10 of the Act only provides that
the Minister must not make a declaration about a management program unless
legislation relating to the protection, conservation or management of
animals or plants in question is in force in the relevant State or Territory;
the legislation applies throughout the State or Territory; in the opinion
of the Minister, the legislation is effective; and the Minister is satisfied
of certain matters outlined in regulations.
[31] Ms Jane Holden, TRAFFIC Oceania, Proof
Committee Hansard, Sydney, 4 February 1999, pp 89-90.
[32] Mr Simon Molesworth, Environment Institute
of Australia, Proof Committee Hansard, Melbourne, 18 March
1999, p 303.
[33] Proof Committee Hansard, Canberra,
4 March 1999, p 172.
[34] Proof Committee Hansard, Canberra,
4 March 1999, p 173.
[35] Ms Esther Abram, Environment Victoria,
Proof Committee Hansard, Melbourne, 18 March 1999, p 327.
[36] Proof Committee Hansard, Melbourne,
18 March 1999, pp 312-313.
[37] For example, Ms Jo-Anne Bragg, Environmental
Defender's Office (Qld), Proof Committee Hansard, Brisbane, 28
August 1998, pp 291-292.
[38] Explanatory Memorandum, pp 42-43.
[39] Minerals Council of Australia, Submission
335, p 17.
[40] Minerals Council of Australia, Submission
335, p 17.
[41] Minerals Council of Australia, Submission
335, p 17.
[42] Proof Committee Hansard, Canberra,
4 March 1999, p 176.
[43] Proof Committee Hansard, Canberra,
4 March 1999, p 178.
[44] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment B, p 6.
[45] Government of South Australia, Submission
523, p 11; Australian and New Zealand Minerals and Energy Council, Submission
545, p 16.
[46] Mr Alistair Graham, Tasmanian Conservation
Trust, Proof Committee Hansard, Hobart, 19 February 1999, p 30.
[47] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment B, pp 4-5.
[48] Environmental Defender's Office, Submission
15, p 15; Dr Richard Donaghey, Proof Committee Hansard, Hobart,
19 February 1999, p 44.
[49] Environmental Defender's Office, Submission
15, p 15.
[50] Minerals Council of Australia, Submission
335, pp 16-17.
[51] Mr Larry O'Loughlin, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 284.
[52] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment B, p 2.
[53] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment B, p 2.
[54] Environmental Defender's Office, Submission
15, pp 10-11; Ms Jane Holden, TRAFFIC Oceania, Proof Committee Hansard,
Sydney, 4 February 1999, p 90.
[55] Mr Christopher Gibson, Submission 172,
p 2.
[56] Environmental Defender's Office, Submission
15, p 21.
[57] Mr James Johnson, Environmental Defender's
Office, Proof Committee Hansard, Sydney, 4 February 1999, pp 82–83.
[58] Explanatory Memorandum, p 49.
[59] Minerals Council of Australia, Submission
335, p 18.
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