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

Labor Senators' Findings

1 BACKGROUND TO THE LEGISLATION

This legislation represents the most far-reaching change to Commonwealth environmental law in twenty five years. The policy basis for this Bill pretends to be the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment endorsed by the Council of Australian Governments (COAG) in November 1997.

The Government has criticised the existing Commonwealth environmental laws on the basis that they rely on ad hoc and indirect triggers such as foreign investment approval and Commonwealth funding decisions. These are the precise triggers, together with the external affairs power, which were used by Labor in power to achieve an impressive conservation record. John Howard wants to legislate these powers away to the States and Territories that refused to protect important areas in the first place.

Under the Australian Constitution, the Commonwealth has no express head of legislative power over the environment. There are, however, a number of powers available to the Commonwealth to enact laws concerning the environment. In the past, the corporations power, the trade and commerce power and the external affairs power have been the most heavily used by Labor Governments to enact laws with respect to the environment. This Bill delegates decision making under these powers back to the States.

2 MATTERS OF NATIONAL ENVIRONMENTAL SIGNIFICANCE

The Intergovernmental Agreement on the Environment (IGAE) 1992, identified the respective responsibilities and interests of the Commonwealth and States / Territories. It also agreed to a broad framework in relation to the accreditation of Commonwealth and State / Territory processes.

With the change of Government, the Council of Australian Governments (COAG) Agreement in 1997 identified 30 matters of national environmental significance for which the Commonwealth would have responsibility. However, it provided for the Commonwealth to reduce its involvement in assessing the environmental impact of projects, with the Commonwealth being restricted to considering the impact of projects related to only seven of those matters of national environmental significance. The Bill provides for even further reduction of the Commonwealth's environmental responsibilities through devolution of its decision making responsibilities in relation to these seven matters to the States and Territories through bilateral agreements.

The seven matters of national environmental significance listed in the COAG Agreement, which should act as triggers for the Commonwealth's environmental assessment and approval processes are:

• World Heritage properties;
• Ramsar listed wetlands;
• Places of national significance;
• Nationally endangered or vulnerable species and communities;
• Migratory species and cetaceans (whales, dolphins and porpoises);
• Nuclear activities; and
• Management of the marine and coastal environment.

It should be noted that the Bill provides for all matters, including even these seven, to be referred to the States.

As well as the “national buckpassing” reflected in the legislation, important issues of national significance that are not directly addressed in the Bill include: climate change and greenhouse gases, air quality, soil salinity, desertification, inland water pollution by chemicals and/or sewerage, water allocation issues, land degradation, land clearing and forest management.

3 CASES IN WHICH ENVIRONMENTAL APPROVALS ARE NOT NEEDED

Part 4 of the Bill provides key exemptions from the Bill's general prohibition against the taking of actions that are likely to have a significant impact on the environment. Considerable concern has been expressed at the number of actions that may be exempted at the discretion of the Environment Minister. Exemptions include:

• Any matter through the mechanism of bilateral agreements;
• Ministerial declarations in relation to any matter;
• Conservation agreements;
• Regional Forest Agreement regions; and
• Actions in the Great Barrier Reef Marine Park.

4 MAJOR CHANGES TO EXISTING LEGISLATION

The following are significant changes to present legislation:

• Legislative capacity for all approval processes to be under the control of the States only.
• The Minister for the Environment decides whether the assessment process will be invoked, rather than the Action Minister, as is the case with the Environmental Protection (Impact of Proposals) Act 1974. The Minister for the Environment, rather than the Action Minister, also makes the decision on whether a project can proceed.
• Six of the seven matters of national environmental significance identified by the COAG Agreement are the only direct triggers that may invoke the legislation if they are not already referred to a State or Territory. By contrast, the EPIP Act could be triggered both indirectly and directly by a range of Commonwealth Government agencies' decisions. Such changes could mean that there would be fewer proposals being assessed under this legislation than under the EPIP Act.
• Where the direct triggers are invoked, the Minister may only consider those parts of a proposal which impact on the relevant trigger, for example a World Heritage property, and is specifically prevented from considering the environmental impact of the entire proposal, as is the case under the EPIP Act.
• The Administrative Procedures of the EPIP Act relating to Ministerial decision making, assessment procedures and public consultation are modified and included as provisions of the Bill.
• Assessment under this legislation is not needed for proposals or activities carried out in the Great Barrier Reef Marine Park where a permit has been granted by the Great Barrier Reef Marine Park Authority.
• The Minister can enter into bilateral agreements and conservation agreements and make declarations in regard to a class of actions whereby proposals covered by such agreements or declarations may not need to be assessed and/or approved under this legislation.

Bilateral agreements between the Commonwealth and the States and Territories, are fundamental to the success of this legislation. The Bill provides little detail on the bilateral agreements. The Parliament is therefore being asked to approve a critical aspect of the Commonwealth's new environmental law with little substantive detail.

Conservation agreements, which could occur in a Commonwealth reserve, are not subject to consultation with the public or with traditional owners. There is concern at the lack of public input, particularly as conservation agreements could allow private management of public land.

• Proposals significantly affecting World Heritage areas, and which are covered by bilateral agreements or management plans, may be exempted from the need for assessment and /or approval by the Commonwealth.
• The Minister is able to require an environmental audit to be carried out if he/she believes or suspects that an authority holder is likely to contravene a condition of the authority.
  • The position of Director of National Parks and Wildlife is abolished by the repeal of the National Parks and Wildlife Conservation Act 1975. This is of major concern to traditional owners where there are joint management arrangements.
  • Substantial changes are made to the protection and management of some Commonwealth parks and reserves (for example Kakadu and Uluru-Kata Tjuta National Park). This includes the composition of Boards.
  • Penalties for offences involving whales, dolphins and porpoises are increased compared to the Whale Protection Act 1980 and prohibition on wild capture of whales, dolphins and porpoises for display. The Bill provides for the declaration of the Australian Whale Sanctuary.
• There are substantial changes to management of World Heritage properties, such as the increased role for bilateral and conservation agreements, in order to remove Commonwealth involvement.
• The Commonwealth must prepare and implement management plans for World Heritage areas and Ramsar wetlands in Commonwealth areas. It is, however, only obliged to use its best endeavours to ensure that management plans for such sites in the States or Territories are prepared and implemented in cooperation with State or Territory Governments.

5 RESPONSES TO THE BILL

Industry groups generally are of a view that it is need of major overhaul, it is `archaic', `unworkable' and in need of a rewrite. As well, industry is of a view that:

• It would like to see an amended bill passed, but not until after details of bilaterals and regulations are known.
• The Bill's failure to reflect the more cooperative relationships that have developed between industry, governments and the community.
• Absence of fully operational bilateral agreements prior to the Bill's commencement may result in duplication and render the Bill unworkable.
• The Bill's broad regulation making powers create significant uncertainty and hence all regulations must be produced and debated contemporaneously with the Bill.

Non-government groups have also raised significant concerns. These include the following:

• Reduction of Commonwealth control over environmental regulation, including through the nomination of only six matters of national environmental significance for which the Commonwealth has direct responsibility, and the capacity to abdicate responsibility.
• Absence of a Commonwealth regulatory framework over other matters despite their identification in the COAG Agreement as matters of national environmental significance (for example climate change, greenhouse gases).
  • Devolution of Commonwealth control of environmental regulation to the States and Territories by limiting grounds for Commonwealth decision making and by developing processes (such as bilateral agreements) which can transfer assessment and approval powers to the States and Territories.
  • The wide range of mechanisms to exempt the matters of national environmental significance from assessment and approval processes with minimal environmental safeguards.
  • Absence of requirements to ensure public participation in relation to many key aspects of the Bill.
  • Broad discretionary powers of the Minister in relation to a wide range of decisions and actions.

The indigenous community's concerns with the legislation are many. A range of representative indigenous bodies has argued that the Bill fails to take into account culturally different approaches to the environment. Additionally, indigenous groups have noted that certain State and Territory Governments have historically very poor records on the environment, including insensitivity to indigenous peoples' specific environmental concerns. This is of concern in light of the Bill's devolution of Commonwealth power.

Of particular concern to indigenous communities is the disruption of joint management arrangements in respect to areas such as Kakadu, Uluru, and Wreck Bay.

6 CONCLUSION

Labor Senators believe the Bill is fundamentally flawed and are of a view that it should not progress further pending resolution of the following issues.

Labor Senators are of a view that there is a need to:

1. Broaden the scope of legislation in accordance with the COAG agreement of 1997 and to limit exemptions in respect to matters of national environmental significance in order to maintain a meaningful role for the Commonwealth.
2. Maintain a Commonwealth reserve power to protect the environment.
3. Oppose the concept of bilaterals. In the event that this is not is not successful we need to define parameters of, and criteria and standards for, `bilaterals', and prerequisites for State mechanisms. We must also provide a review mechanism for any alternative regime, against set criteria.
4. Strengthen public accountability and transparency of decision making, including by notification, participation and by applying the laws of standing which have applied in NSW since 1982.
5. Recognise indigenous biodiversity interests and provide mechanisms to ensure their views are accommodated in the process.
6. Extend coverage of the legislation from merely Commonwealth land and reserves.
7. Retain the Australian National Parks and Wildlife Service.
8. Maintain current management arrangements in respect to areas such as Kakadu, Uluru, and Wreck Bay, or alternatively provide for regimes in accordance with the wishes of traditional owners.
9. Ensure precision and fairness criteria for the exercise of ministerial discretion, and limitation on the scope of delegation by the Minister.
10. Maintain adequate levels of enforcement provisions, including in some circumstances, criminal penalties.
11. Provide adequate clarity and certainty in respect to the preamble, definitions, objects clauses, decision making process, assessment processes and to provide adequate review processes.
12. Provide for the Auditor General to fulfil environmental audit functions.
13. Maintain current levels of protection for World Heritage areas. Enhance protection of Ramsar Wetlands, building on the foundation provided in this Bill.
14. Reconstitute the Threatened Species Scientific Committee, the Biological Diversity Advisory Committee and other committees, within the ambit of the legislation, in a way which ensures representation of all legitimate interests, including indigenous interests, and to provide governing principles for such bodies.
15. Ensure appropriate treatment of Regional Forest Agreements, in accordance with Labor amendments to the Regional Forest Agreement legislation.

Senator Nick Bolkus Senator Mark Bishop