Executive Summary
The large number of submissions (367) received by this inquiry highlight
the importance attached by many citizens to the role of the Commonwealth
in environmental management in Australia. However, the majority of those
submissions deplored the recurrent lack of political will and leadership
on the part of all Commonwealth Governments to employ the extensive power
they possess in order to protect and conserve the environment which is
every Australian's common legacy.
It is the view of the Committee that the Commonwealth Government has
the Constitutional power to regulate, including by legislation, most,
if not all, matters of major environmental significance anywhere within
the territory of Australia. The panoply of existing Constitutional heads
of power confers on the Commonwealth extensive legislative competence
with respect to environmental matters.
The Committee appreciates that while the Commonwealth possesses extremely
wide Constitutional powers over the environment, that power is not entirely
unlimited. With an express environmental power, the legislative result
would be Constitutional uncertainty.
It is the view of the Committee that a large part of remaining Constitutional
uncertainty surrounding the environmental use of existing Commonwealth
power could be greatly alleviated by the use of independent Environmental
Law and Constitutional Law experts. An independent statutory Environmental
and Constitutional Law Experts Commission (made up, for example, of members
from Commonwealth, State and Territory Attorney's-General Departments,
academics, private practitioners, and lawyers with environmental community
legal centres such as the Environmental Defender's Office) could advise
the Government if, when, and how, the Commonwealth should legislate with
respect to environmental matters. An ECLC could also monitor, review and
advise on the government's execution of its responsibilities for environmental
protection and ecologically sustainable development.
The Committee is critical of the narrow approach adopted by the Government
in the Environment Protection and Biodiversity Conservation Bill 1998
where only six of the 30 matters listed in the Council of Australian Governments
(COAG) Heads of Agreement on Commonwealth/State Roles and Responsibilities
for the Environment are `matters of national environmental significance'
which act as triggers for Commonwealth environmental assessment and approvals.
The Committee has argued strongly in any case for the Commonwealth to
take a proactive role in environmental management. It does not see the
`matters of national environmental significance' approach as being particularly
useful and has recommended that it be abandoned.
It is also expressly limiting the wide-ranging environmental powers the
courts and Constitution have conferred. The Committee sees this as a deliberate
attempt to constrain the environmental powers of the Commonwealth, which
cannot be justified.
The Committee was struck by the strong support expressed in submissions
for Commonwealth leadership and involvement in the protection of sites
that come under the Convention Concerning the Protection of the World
Cultural and Natural Heritage and the Ramsar Convention. In
the Committee's view, the Commonwealth should acknowledge that it has
ultimate responsibility for the safekeeping of World Heritage areas. The
Commonwealth should not only exercise primary legal control over the protection,
preservation and management of these areas but it should also ensure that
they are further protected by extending its legislative powers over a
defined and adequate buffer zone around World Heritage properties which
takes into account the natural ecosystem to which the World Heritage listed
area belongs.
The Committee notes that the Intergovernmental Agreement on the Environment
(IGAE) supports the precautionary principle, as does the Committee. A
cautious approach is absolutely vital: once a pristine area has been damaged
it is often too late for the Commonwealth to act. The only safe (and in
the Committee's view, the only responsible) approach is to protect an
area while it is being assessed so that their unique properties are conserved
in the event of inclusion under Conventions and Agreements.
On the issue of conservation of biological diversity, the Committee believes
that the confluence of the Convention on Biological Diversity and the
external affairs power enables the Commonwealth to unilaterally promulgate
national requirements for the environmental impact assessment of all proposed
projects, regardless of jurisdiction, likely to have a significant impact
on the biological diversity anywhere in Australia. Consequently, the Committee
believes that the Commonwealth should establish such national environmental
impact assessment standards for the benefit of protecting our biological
and ecological resources.
The Committee is mindful of the roles of State and local governments
in environmental protection but the Committee is of the view that strong
national leadership, with uniform national environmental standards for
environmental regulation are the most effective and efficient way to approach
environmental regulation. The Committee believes that once minimum national
standards are set by the Commonwealth, the accreditation of state and
local environmental assessment programs that either meet or beat these
standards has a vital role to play in environmental protection in Australia.
But the Commonwealth retains approval power for all environment matters
of Commonwealth interest.
National standards must be reinforced by improving opportunities for
community participation. Accordingly the Committee is recommending open
standing provisions to allow public access to the courts in order to test
the validity of governmental decision and restrain breaches of the law
and increased funding for conservation groups such as the Environmental
Defender's Offices (EDOs).
Finally, as the twentieth century draws to a close, the Committee recommends
changes to the Constitution that would better equip the Commonwealth to
play a strong national role in environmental protection into the twenty-first
century.
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