Minority Report by the Australian Democrats
The Australian Democrats wish to thank the many individuals and organisations
who contributed their time and effort to draft submissions or to appear
as witnesses to assist the Committee in its inquiry into the Environment
Protection and Biodiversity Conservation Bill 1998.
The Bill is complex and deals with a very wide range of issues. The submissions
and evidence presented to the Committee raised a large number of concerns,
as well as suggestions to improve the legislation. In the short time that
was available to respond to the majority report, it was not possible to
address all of those concerns and suggestions. Instead, this minority
report focuses on major deficiencies of the Bill and the key concern expressed
by the community.
In short the Australian Democrats accept that there are significant problems
with existing environment legislation. The Commonwealth laws for protecting
our environment are convoluted and action is often dependent on political
will. We believe that the Environment Protection and Biodiversity Conservation
Bill before the Senate contains a number of remedies to areas of current
concerns. However there are drawbacks in the legislation which will again,
allow good environmental decision making to be easily forfeited to political
whim.
The Australian Democrats believe this bill should not be considered by
the Senate until the Government puts up and/or supports amendments which
make the legislation, in its entirety, significantly better than the existing
legislation. We believe that with goodwill on the part of the Government
this is achievable and look forward to amendments which address our concerns.
Overview
A review of Australia's environmental legislation was well overdue. Since
much of the then well-meaning legislation of the 70s and 80s was enacted,
there have been considerable developments in our understanding of ecological
processes, in our expectations of government, and in our understanding
of the extent of the Commonwealth's environment powers. The community
has a greater desire to deal with the environment and the economy in an
integrated manner. Ecologically sustainable development (ESD) is a concept
that should ensure that environmental considerations are taken into account
in all decision making, economic and social. However, it is often
no more than rhetoric in the objects of bills, and is not seen in the
actions and outcomes of decisions by regulators.
It is unfortunate that the majority report of the Committee has not responded
to much of the evidence on the many concerns that were placed before it.
While the Australian Democrats have no significant objections to specific
recommendations in the majority report, we believe they fall short in
addressing the main concerns of the Bill.
We have significant concerns with the proposed use of bilateral agreements
to hand over Commonwealth assessment and approval responsibilities. While
the Australian Democrats have no conceptual difficulties with the States
and Territories having a role in assessment processes, this must
only occur subject to nationally consistent, best practice environment
processes and other safeguards. At this stage, these safeguards and constraints
are missing, and there is potential for the Commonwealth to abrogate decision
making, using arbitrary, rather than prescriptive, mechanisms.
Overall, we have three major fundamental objections to the Bill. These
are:
- inadequate definition and use of ESD principles, especially with respect
to the importance of public involvement;
- the limited view as to the Commonwealth's responsibilities. For example,
excluding several vital matters of national environmental significance;
and using bilateral agreements to delegate Commonwealth decision making
to States and Territories; and
- the large scope for Ministerial discretion and a range of exemptions
from the Bill.
The Bill does contain a number of improvements on the current legislation.
In particular, the Australian Democrats generally welcome the transfer
of powers relating to environmental assessments and approvals from the
`action' Minister to the Environment Minister, as do the majority of witnesses
and submitters.
The Australian Democrats also support the establishment of the Australian
Whale Sanctuary, the protection of Ramsar wetlands, the expansion of current
threatened species provisions beyond Commonwealth areas and actions, the
removal of obstacles to controlling damaging activities in World Heritage
properties and the recognition of vulnerable ecological communities and
conservation dependent species. These benefits are considerable in their
scope compared to existing legislation.
Process Issues
The Australian Democrats consider that the development process of the
Bill itself was less than satisfactory and opportunities were missed for
accepting many matters raised during limited consultation processes.
The main genesis of the Bill is the Heads of Agreement by the Council
of Australian Governments of 1997 (the COAG Agreement).
We do not consider that the COAG Agreement is a valid basis for legislation.
The Agreement was cloaked in secrecy, the only interest group whose position
was considered seriously was government, there was no initial public process
and as a result, the lowest common denominator in environment protection
has prevailed.
The Australian Democrats believe that more genuine efforts to consult
with the public during the development of the Bill would have resulted
in legislation that better reflected community concerns. Although the
Minister released a Consultation Paper on the proposed legislation, many
of the witnesses told the Committee that there was limited time to respond
to the proposals and the Government appeared not to have taken into account
the comments that had been made.
Complaints about the process came from the full range of industry, environment
and community groups. Traditional owners were not consulted in any meaningful
way on the very significant changes proposed to their lease agreements
in Uluru, Kakadu and Booderee. The consideration of the Bill by the public
and by the Committee was also made difficult by the lack of detail in
relation to bilateral agreements and the regulations which are fundamental
to an understanding of the implications of the Bill and to its successful
operation. Industry groups noted time after time that this created an
unacceptable degree of uncertainty for them, and most requested that the
legislation be delayed.
Objects of the Bill and Ecologically Sustainable Development
The concept of ecological sustainable development (ESD) was originally
designed to ensure that environmental considerations are taken into account
in all decision making, economic and social. Unfortunately the
phrase has been contorted somewhat and while the rhetoric is used, the
intention is not met currently by the bill. For example, COAG and the
Bill's definition of ESD has the precautionary principle and public involvement
as `guiding principles' only, not as core objectives.
Many submissions and witnesses commented that the objects clause contains
watered-down objectives which do not project a strong commitment to environment
protection and biodiversity conservation. More generally, the Bill treats
ESD as though it means that environmental issues take second place to
economic and social issues. For example, while the Bill requires decisions
on environmental approvals to take all economic and social considerations
into account, ESD principles (such as they are) only need to be taken
into account in relation to the particular matter which triggers assessment
(clause 136). In effect, the Bill ensures that economic and social factors
are incorporated into environmental decisions, but does not require environmental
factors to be a part of social or economic decision making.
The Australian Democrats believe that the objects of the Bill should
indicate an unequivocal commitment to protect the environment,
rather than `to provide for the protection of the environment';
to ensure ecologically sustainable development, rather than `to
promote ecologically sustainable development'; and to conserve
biodiversity, rather than `to promote the conservation of biodiversity'.
The objects should also explicitly acknowledge the importance of public
consultation and involvement in environment protection and biodiversity
conservation.
Recommendation
That ecologically sustainable development be defined more rigorously
in the Bill and that the objects of this Bill (and other environmental
legislation) be amended to place ecologically sustainable development
and its principles at centre stage. In particular, qualifications in clauses
3 (a), (b) and (c) should be removed and public involvement should be
required at all key stages in environmental approval processes.
Transparency in the Implementation of the Bill
Effective implementation of the Bill, if enacted, will depend to a large
extent on the degree to which the community understands the Bill, is committed
to its implementation, and is involved in decisions which will ultimately
affect the community itself. The Australian Democrats note that one of
the principles of ecologically sustainable development included in clause
136(3) of the Bill is that `decisions and actions should provide for broad
community involvement on issues which affect the community'. This principle
is not adequately reflected in the provisions of the Bill. Amendments
will be necessary to ensure adequate public involvement in processes established
under the Bill.
It will also be necessary to ensure that there are adequate provisions
for the notification and publication of decisions, bilateral agreements,
declarations, plans and other instruments under the Bill. In this regard,
the Australian Democrats note the numerous exemptions from requirements
to publish material, on the grounds that it is commercial-in-confidence.
Examples include exemptions in relation to conservation agreements (clause
309), assessment reports (clauses 95, 100 and 105), approvals (clause
133) and variation of conditions (clause 143). While the Australian Democrats
appreciate the need to protect commercial confidence in appropriate circumstances,
there is potential to abuse the provisions of the Bill to prevent the
disclosure of material which relates to the legitimate interests of the
community. The Australian Democrats therefore consider that further constraints
on the use of commercial confidence exemptions, beyond the reference to
the Freedom of Information Act 1982, are required.
Recommendation
That the Bill provide for transparency and openness in relation to
all processes under the Bill, through provision for public consultation;
public notification of impending decisions; publication of relevant instruments,
decisions and reasons; and tight constraints on the use of commercial
confidence.
Management Arrangements in National Parks
As stated above, a major concern expressed to the Committee throughout
its inquiry was the lack of meaningful consultation about the proposed
legislation. This was most starkly illustrated in relation to the proposed
changes to the management of national parks. The Bill proposes to abolish
the Director of National Parks and Wildlife and the Australian National
Parks and Wildlife Service as statutory bodies, transfer the leases for
Aboriginal-owned national parks from the Director to the Commonwealth,
and require Northern Territory representation to be on the Boards of Management
for the Kakadu and Uluru National Parks. Clearly, there was no genuine
consultation or negotiation on these matters with the traditional owners
of the parks, who were taken by surprise by the contents of the Bill.
This lack of consultation is unacceptable, particularly as the traditional
owners have freehold title over the relevant national parks and are involved
in managing the parks through a close partnership with the Director.
The Australian Democrats believe that current management arrangements
for Kakadu, Uluru, and Booderee National Parks should be maintained and
that any alternative arrangements should be discussed and agreed with
the traditional owners of the parks.
Recommendation
That the current management arrangements for Kakadu, Uluru and Booderee
National Parks be maintained, with any alternative regimes to be discussed
and agreed with the traditional owners.
Commissioner for the Environment
There is no provision in the Bill for independent reviews of the environmental
role and operations of the Commonwealth Government. A number of submissions
and witnesses presented compelling evidence on the need for an independent
authority to conduct such reviews and report to the public. The Australian
Democrats consider that a Commissioner for the Environment would provide
an important safeguard for ensuring best environmental practice. For example,
a Commissioner could investigate and report on whether bilateral agreements
were consistent with rigorous accreditation criteria and whether States
were complying with bilateral agreements. The Commissioner would also
have regular review powers.
It is clear that the momentum for achieving ecologically sustainable
development in the operations of Commonwealth agencies, which began with
the ESD Working Group process in the early 90s, has been lost. The Australian
Democrats believe that the momentum must be renewed by placing an obligation
on Commonwealth departments and agencies to prepare and implement individual
strategies for achieving ecologically sustainable development. A Commissioner
for the Environment would have an important role in auditing the performance
of departments in implementing their strategies. This concept has been
put into practice in other countries such as Canada, where the Annual
Green Reports of the Commissioner for the Environment and Sustainable
Development are providing valuable independent information on the performance
of the Federal Government in fulfilling its environmental objectives and
promises.
Recommendation
That a Commissioner for the Environment be established as an independent
authority to carry out functions such as reviewing bilateral agreements,
monitoring State compliance with bilateral agreements, and reviewing the
performance of Commonwealth departments and agencies in implementing their
ESD strategies.
Limited Commonwealth Environmental Involvement Matters of National Environmental
Significance
There is no question that the Bill is based on a very narrow view of
Commonwealth environmental involvement. The COAG Heads of Agreement identified
thirty matters of national environmental significance, and there can be
no justification for restricting Commonwealth involvement in environmental
assessment and approval to a mere six. The six agreed on by COAG for Commonwealth
involvement exclude some of the most significant environmental challenges
facing Australia today – climate change, the clearing of native vegetation
(which is one of the most serious threats to Australia's biodiversity),
the loss and degradation of native forests, and the unsustainable use
of water. These matters are undoubtedly of national environmental significance,
and should be subject to the Commonwealth's environmental assessment and
approval process.
The majority report argues that the Bill is not intended to address all
matters of national environmental significance identified in the COAG
Heads of Agreement. The Government asserts that broad-scale matters such
as climate change and vegetation clearance are being adequately dealt
with by programs and policy responses. Yet Australia continues to see,
for example, an increase in greenhouse gas emissions and an alarming loss
of native vegetation. The involvement of the Commonwealth in Government
programs such as the Greenhouse Challenge is not a substitute for the
capacity to assess and approve the environmental impacts of particular
projects – for example, the building of a large coal power plant
or shale oil mine. Similarly, the existence of the National Pollutant
Inventory is not a substitute for the capacity to assess, approve and
impose conditions on a new petrochemical plant. It is clear that administrative
approaches alone are not sufficient and require legislative backing.
The majority report also argues that there are practical difficulties
in applying environmental impact assessment to climate change, vegetation
clearance, and water issues in a way which is consistent with Commonwealth
environment powers and which does not overlap with State and local government
responsibilities. The Australian Democrats note that a number of witnesses
and submissions indicated that appropriate thresholds could be applied
so that only major activities of national environmental significance
require environmental assessment and approval by the Commonwealth.
Recommendation
That the list of matters of national environmental significance requiring
environmental impact assessment be expanded to include climate change,
native vegetation, forests, and the sustainable use of water, with appropriate
thresholds to exclude matters that are not nationally significant.
Limits on Environmental Impact Assessment
Even in relation to these six issues the Commonwealth involvement is
narrowly defined, and a broad range of exemptions may be applied (see
sections on bilateral agreements and other exemptions, below). For example,
as the Bill stands the Commonwealth can only consider the impacts of the
activity on the `trigger' – that is, if the trigger relates to threatened
species the assessment and approval of the activity only relates to its
impacts on threatened species. Thus, if a coal-fired power station which
may have a significant impact on a threatened species is proposed, the
Commonwealth will be restricted under the Bill to assessing the impact
on that species. Hence, the Commonwealth would not be able to assess the
impacts on climate change or other matters of national environmental significance,
for which the Commonwealth has responsibility.
It is also inconsistent, as noted above, to require the Commonwealth
to take into account all economic and social impacts but only an extremely
narrow range of environmental impacts. Limiting the Commonwealth to assessing
only the impacts relevant to the matter of national environmental significance
which triggers assessment, will prevent a holistic approach to environmental
impact assessment. This aspect of the legislation represents an unnecessary
abandonment of the Commonwealth's environment powers and responsibilities.
The Commonwealth should be able to examine at least the thirty matters
of national environmental significance for which the Commonwealth has
responsibility, as acknowledged in the COAG Heads of Agreement.
The Australian Democrats consider this aspect of the legislation to be
an extraordinary and unnecessary fetter on the Commonwealth's environment
powers and responsibilities. We are particularly concerned with greenhouse
gas emissions, land and water degradation, and the conservation of native
vegetation which COAG has explicitly acknowledged are the responsibility
of the Commonwealth.
Recommendation
That the Bill be amended to require the environmental assessment and
approval process to take account of the impacts on at least the thirty
matters of national environmental significance identified by the COAG
Agreement, not just the impacts relevant to the matter which triggers
assessment.
Accreditation of State and Territory Assessment Processes
The Australian Democrats note that most witnesses and submissions, including
those from conservation groups, did not object to the concept of accreditation
of State environmental assessment processes through bilateral agreements.
However, conservation groups invariably added the proviso that the Bill
should be amended so as to improve those current State practices.
However, there appears to be a clear intent on the part of the Commonwealth
to use this Bill to give away its responsibilities for approving
actions impacting on matters of national environmental significance. One
of the most serious flaws is that the Bill does not provide for sufficient
safeguards to ensure that accredited State governments will fulfil the
national obligations entrusted to them and to ensure that the Commonwealth
does not use bilateral agreements to abrogate its national responsibilities
for the environment. That these safeguards and constraints are missing
reinforces the overall impression of the Bill that the Commonwealth is
giving itself as many avenues as possible to absolve itself of its national
and international environmental obligations.
The Australian Democrats consider that with appropriate safeguards in
place, bilateral agreements could be used to accredit State and Territory
processes for environmental impact assessment. Any assessment processes
of Commonwealth Departments accredited by the Environment Minister should
have strong standards and criteria equivalent to those which apply to
bilateral agreements. It is unacceptable, however, to devolve or delegate
approval powers relating to matters of national environmental significance,
particularly given the Commonwealth's responsibility for meeting Australia's
obligations under international environment agreements and the poor record
of States and Territories in protecting the national interest with respect
to the environment.
Recommendation
That the Bill require all bilateral agreements to meet best practice
in relation to environmental protection, public consultation, judicial
review, freedom of information, enforcement and standing. The Bill should
require all bilateral agreements to contain provisions for auditing, monitoring,
and reporting on compliance with, and the effectiveness of, the agreements.
The public should also be given a genuine opportunity to comment on each
draft bilateral agreement before it is finalised.
That the Bill only provide for accreditation of Commonwealth, State
and Territory environmental assessment processes.
The Environment Minister must retain the final approval role.
That standards and criteria which apply to bilateral agreements also
apply to declarations accrediting Commonwealth assessment processes.
Strategic Assessment
The Bill as it stands will also allow the Commonwealth to ignore the
environmental effects of its own policies and programs, since these are
excluded from the definition of `action'. There are some provisions for
the strategic assessment of policies, plans and programs, but the Australian
Democrats consider that the non-mandatory nature of the relevant provisions
will undermine the intention to encourage the early consideration of policies,
plans and programs before they translate into on-the-ground actions with
environmental impacts.
The Australian Democrats note that while the Bill contains mandatory
requirements for strategic assessment of fisheries management plans and
policies, it will be possible for Commonwealth Ministers and heads of
agencies to evade strategic assessment of other policies, plans and programs.
Any population policy, for example, would escape formal scrutiny for its
environmental impacts, as would the greenhouse impacts of any policy for
the energy industry. The Bill should empower the Environment Minister
to call in any proposed Commonwealth policy, plan or program which is
likely to result in a significant impact on the environment, so that it
may undergo strategic assessment.
The Australian Democrats also believe that legislative proposals should
be subject to strategic assessment. The Australian Democrats do not consider
that this will create an unnecessary administrative burden, given that
the Government already requires a regulatory impact statement to be prepared
for all legislative proposals that have an impact on business or competitiveness.
In fact, the assessment of environmental impacts at an early stage of
the legislative process will produce savings for government and community,
which will be spared the expense of reversing or repairing any environmental
damage resulting from legislation.
Recommendation
That the Bill be amended to provide the Environment Minister with
the power to call in any proposed Commonwealth policy (including any legislative
proposal), plan or program which is likely to result in a significant
impact on the environment.
Screening of Proposals in Environment Assessment
One of the most critical steps in the proposed environmental assessment
and approval process is the screening of proposals, in which the Minister
would decide whether an action needs approval. If the Minister decides
that approval is not needed, the action falls outside the regulatory regime
of the Bill and can proceed without assessment. Furthermore, if the Minister
has decided that an action does not require approval, under clause 78(3)
he or she is unable to revoke that decision once the action has been taken.
This is the case, even where the first decision may have been flawed or
where substantial new information comes to light which points to the need
for environmental impact assessment, such as the discovery of a threatened
species in the area where the action is taken.
The Australian Democrats believe that public input is necessary to ensure
that screening decisions are based on the best available information.
For example, local communities are often in the best position to provide
information about the location of threatened species and other matters
of national environmental significance. The Australian Democrats have
concerns with the contention in the majority report that members of the
public will be able to bring to the attention of the Minister any substantial
new information relating to a proposal and that it will then cause the
Minister to reconsider his or her decision.
Recommendation
That the public be given a genuine opportunity to comment on whether
an action referred to the Minister requires approval under the Bill.
That there be a capacity to revisit and revoke a decision in relation
to whether an action requires an approval, after the action has commenced
or been taken in the light of new information.
Large Scope for Ministerial Discretion and Other Exemptions
Many witnesses expressed concern about the numerous avenues for exemption
under the Bill. In addition to the problem of the limitation to six of
matters that can `trigger' Commonwealth assessment and approval, there
are a large number of ways by which the requirement for an approval can
be avoided. The way that bilateral agreements can be used in this way
was discussed above. The Australian Democrats consider that more safeguards
are needed in the Bill to ensure that Commonwealth responsibilities relating
to the environment are not evaded through Ministerial declarations, conservation
agreements, and Regional Forest Agreements (RFAs). Ministerial discretion
also needs to be reined in to reduce the potential for making arbitrary
decisions and evading obligations to protect the environment and conserve
biodiversity.
Regional Forest Agreements
The Bill exempts forestry operations from approval if they are undertaken
in accordance with a Regional Forest Agreement (RFA) or within a region
in which an RFA is being negotiated. The Australian Democrats note that
not one environment or conservation group that provided evidence to the
Committee expressed confidence in the RFA process. The Environmental Defender's
Office highlighted the problem of exempting forestry operations in RFAs
from the Bill:
RFAs have been and are being negotiated without minimum standards for
environmental impact assessment or public participation. They cover a
substantial part of Australia's forests, which in turn provide habitat
for a substantial part of Australia's biodiversity. It is completely inappropriate
that Australia's `Biodiversity Conservation' Bill does not apply to these
forests. [1]
The exemption for RFAs must be removed if the Bill is to play a credible
role in the conservation of Australia's biodiversity.
Recommendation
That the exemption for forestry operations in RFA regions be removed.
All forestry operations that are likely to have a significant impact on
a matter of national environmental significance should be subject to environmental
assessment and approval under the Bill.
Identification and Monitoring of Biodiversity
A sound knowledge base is needed to conserve and manage Australia's biodiversity
effectively. The identification and monitoring of biodiversity will help
to build that knowledge base and provide information that is essential
for sound decision making under the Bill. The Australian Democrats welcome
the inclusion of the identification and monitoring provisions in the Bill,
consistent with the National Biodiversity Strategy and the Convention
on Biological Diversity.
However, the relevant clauses in the Bill only specify that the Minister
`may' cooperate with, and provide assistance to, other persons for the
purpose of identifying and monitoring biodiversity. This level of ministerial
discretion creates great uncertainty as to the extent to which these provisions
will be used, if they are used at all. The Bill must provide some certainty
in this area by encouraging the Minister to take action.
Recommendation
That the Minister's discretion to cooperate with, and give financial
and other assistance to, any person for the purpose of identifying and
monitoring biodiversity be circumscribed. One possible approach might
be to require the Minister to prepare a plan of action and timetable for
the identification and monitoring of at least the components of biodiversity
listed under the Bill.
Bioregional Planning
The inclusion of provisions for the development of bioregional plans
is a welcome and innovative aspect of the Bill. Bioregional planning,
which strives to integrate and reconcile biodiversity conservation with
the economic and social needs of local communities is widely accepted
as an effective and systematic approach to achieving biodiversity conservation.
Indeed, the National Biodiversity Strategy recognises the need for, and
encourages, bioregional planning.
The Australian Democrats support the majority report in its recognition
of the need for a definition of a `bioregion' and for genuine public involvement
in the development of bioregional plans. However, the majority report
does not properly address the discretionary nature of the bioregional
planning provisions, which potentially undermines their usefulness. The
Australian Democrats believe that greater certainty is required in relation
to the obligation to develop bioregional plans. In addition, the Minister's
discretion to consider a bioregional plan in making any decision under
the Bill, as he or she sees fit, would render bioregional plans almost
meaningless.
Recommendation
That the discretion to prepare bioregional plans be circumscribed
and that the Minister be required to have regard to relevant bioregional
plans in making any decision under the Bill.
That the public be given a genuine opportunity to comment on draft
bioregional plans before they are finalised.
Wildlife Protection in Commonwealth Areas
A number of witnesses pointed out to the Committee that all native wildlife
is protected under State and Territory legislation, unless species are
explicitly exempted through a schedule or other mechanism. Yet the Bill
only provides for the protection of only listed threatened species and
ecological communities, listed migratory species, cetacean species, and
listed marine species in Commonwealth areas. This is clearly a case where
the Commonwealth Government, by proposing to continue its current selective
approach, is lagging behind the States and is perpetuating a gap in Australia's
legislative regime for wildlife protection. The Australian Democrats consider
that this gap must be closed.
Recommendation
That all native wildlife (animals and plants) be protected on Commonwealth
lands and waters, unless specifically exempted in a schedule or other
mechanism.
Conservation Agreements
Key conservation groups submitted that conservation agreements can be
`a powerful tool to encourage good environmental outcomes on private land'.
[2] However, the Bill contains some regressive
provisions relating to conservation agreements, in particular the ability
to exempt certain activities specified in such agreements from the need
for approval. The Australian Democrats agree with many witnesses and submitters
who argued that this sort of exemption was inappropriate and unnecessary
to encourage landholders to enter into conservation agreements.
The Australian Democrats do not agree with the assertions in the majority
report that there are adequate safeguards to ensure that conservation
agreements will not be used as a convenient means for exempting developments
from the environmental approval process. There appears to be no justification
for the exemption, as the provision of financial and other assistance
by the Commonwealth is a sufficient and appropriate incentive to enter
into these agreements.
Recommendation
That the Bill be amended to ensure that conservation agreements do
not provide for unwarranted exemptions from the environmental assessment
and approval process.
Indigenous Rights and Interests
Indigenous groups had significant concerns about the lack of recognition
of indigenous rights and interests related to the environment. These included
concerns regarding the removal of the protection allowed to Aboriginal
people for subsistence hunting, food gathering and land use under section
70 of the National Parks and Wildlife Conservation Act 1975 and
concerns that the Bill ignores Australia's international obligations under
the Convention on Biological Diversity relating to the customary use of
biological resources and the protection of traditional knowledge relating
to the conservation and sustainable use of biodiversity.
The Australian Democrats consider that these deficiencies in the Bill
must be addressed.
Recommendation
That indigenous rights and interests relating to the environment and
biodiversity be recognised explicitly and adequately in the Bill.
Standing
The Australian Democrats welcome the freeing up of standing rules for
injunctions and judicial review under the Bill. The rules that are normally
applied by the courts in relation to standing to commence civil proceedings,
whilst perhaps appropriate for cases involving purely private matters,
are not appropriate for matters involving the public interest, such as
the protection of the environment.
However, the Australian Democrats do not agree with the conclusions in
the majority report in relation to standing and consider that the Bill
should provide standing for `any person'. The Australian Democrats note
that the open standing available for many years under NSW environmental
legislation has not resulted in the `opening of the floodgates' with respect
to litigation which is vexatious or without substance.
Recommendation
That standing should be available to `any person' to seek an injunction
or judicial review of a decision made under the Bill.
Senator Lyn Allison
Footnotes
[1] Environmental Defender's Office Ltd, Submission
15, p 11.
[2] Environmental Defender's Office Ltd, Submission
15, p 36
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