Government Senators' Report
by SENATORS TIERNEY AND PAYNE
Introduction
1.1 Government Senators reject the recommendations of this report. Australia
is a federated nation and the Constitution requires co-operative intergovernmental
relations. Co-operation cannot occur unless the parties show some trust
and respect for each other. It is obviously appropriate for the Commonwealth,
as the national government, to have control of certain matters; but this
does not mean that the Commonwealth is so superior in wisdom that it should
unilaterally decide every detail of how these matters should be
managed.
1.2 Submissions to the inquiry from State governments naturally stressed
the need for consultation and co-operation in intergovernmental relations.
Government Senators agree. The authoritarian centralism advocated by a
majority of submissions to this inquiry will not win the support of State
or local governments, and without that support (given that the States
will inevitably retain day to day management responsibility for most environmental
matters) there cannot be good outcomes for the environment. The 1992 Intergovernmental
Agreement on the Environment and the Council of Australian Governments
(COAG) 1998 Heads of Agreement on Commonwealth/State Roles and Responsibilities
for the Environment underpins the current approach of Commonwealth and
State governments on environmental protection and we cannot support the
majority in recommending that it be ignored.
1.3 The Howard government has a wide range of policies and programs in
relation to environmental issues that it is in the process of implementing.
The government recognises that private markets alone do not adequately
account for the external costs of environmentally damaging activities,
and they do not assure intergenerational equity. We must not sustain present
living standards by living off environmental capital. As a community we
owe it to our children to bequeath our country to them in as good a condition
as we ourselves inherited it. We should all feel both an individual responsibility
to tread lightly on the earth, and a communal responsibility to act through
our elected bodies on the matters where individual action is not enough.
1.4 The present Commonwealth government has acted on these principles
responsibly and appropriately, as shown by its many environmental initiatives
in the last three years - most prominently, the creation of the Natural
Heritage Trust, and the introduction of the Environment Protection
and Biodiversity Bill 1998 to rationalise and strengthen the Commonwealth's
role in environmental matters of national significance. More recently,
the government has introduced the Environment and Heritage Legislation
Amendment Bill 1999 in the Senate.
1.5 Our main concern with the report is its underlying centralist bias.
This reflects the weight of opinion expressed in the submissions; but
Senate inquiries are not a public opinion poll and unsolicited submissions
do not necessarily represent the full range of public opinion adequately.
In this inquiry the submissions came almost entirely from environment
groups and their supporters - indeed, the Australian Conservation Foundation
(ACF) actively promoted the inquiry and many submissions from individuals
followed to the letter the format suggested by the ACF in its newsletter.
[1]
1.6 Most of the submissions received argued that the Commonwealth should
take more `responsibility' for environmental protection. This was usually
justified on the basis that `ecological processes do not recognise state
borders', or that certain matters are of `national significance'. Such
general concepts are unobjectionable in principle, but they raise more
questions than they answer when we scrutinise them in detail.
Environmental management is shared among the levels of government
1.7 The catchphrase `ecological processes do not recognise State borders'
is true at the most general level, but precisely because it is
so general it helps us little in deciding, case by case, where
responsibility for environmental management should lie. For the fact is
that we live in a federation where powers are distributed among three
levels of government, and all three levels have many powers and activities
relevant to environmental management.
1.8 `Ecological processes do not recognise State borders' suggests, at
the limit, that the Commonwealth should have complete and exclusive control
of environmental management. This would be contrary to the principle of
`subsidiarity' that many submissions approved (`policy development, administration
and program delivery should lie with the level of government best placed
to deliver outcomes.' [2]). Given that practically
all economic activities might have environmental impacts, it would be
a radical intrusion by the Federal government into areas of life traditionally
controlled by the States. Although submissions referred to specific development
proposals where (according to environmental groups) the Commonwealth could
or should do things that State governments would not; we heard no evidence
to suggest that as a general principle centralised power would lead to
better environmental management on the whole.
1.9 Between the premise that `ecological issues do not recognise State
borders' and the desired conclusion that the Commonwealth should exercise
more power, the argument is incomplete. The premise is an observation
about the world; the conclusion is a proposed administrative response.
But nothing proves that the centralist administrative response is the
best one in any particular case. It is not self-evident that managing
a cross-border environmental issue, or an environmental issue of national
significance (however it is defined), or an environmental issue that affects
a widespread area of the country, always requires Commonwealth
control.
1.10 Where the appropriate level of management lies is a question
about efficient administration, the answer to which does not necessarily
correlate simplistically with ideas about how important or widespread
the problem is. Deciding the appropriate level of management means
considering issues such as the practical constraints of the Constitutional
division of powers; whether national standards are necessary or whether
regional diversity is benign; what resources are necessary (of expert
advice or local knowledge, for example), and where the resources lie;
whether local initiative matters, or whether distant bureaucracies are
likely to get out of touch. It may well be that strategic planning should
be conducted at one level and day-to-day development approval at another.
1.11 We can think of very important environment management issues that
are handled by States or local government (land use planning, for example).
We can think of relatively minor environmental management issues that
are handled by the Commonwealth, perhaps for practical reasons to do with
the division of powers (conservation of shipwrecks, for example). We can
think of important environmental management issues which are `national'
in the sense that they arise similarly everywhere around the country,
but which are handled locally in each place (waste disposal, for example).
Such a complicated distribution of responsibilities may look untidy, but
that does not necessarily mean it is dysfunctional.
1.12 The States and local government have always had and continue to
have most environmental responsibilities, most of the land management
administration, and most of the people with the relevant expertise. To
suggest that the Commonwealth should take over control of daily environmental
management is quite impractical: it would require an absurd duplication
of bureaucracy, without even considering whether it would be worthwhile
in terms of outcomes (which we doubt).
1.13 Government Senators conclude that instead of saying simply that
`ecological issues do not recognise State borders', it is more accurate
and more useful to say that some environmental issues need or benefit
from inter-state co-operation or Commonwealth administration; others do
not. Whether there is a need for centralised administration of some sort
(which may range from voluntary co-operation to control by Commonwealth
law) depends on what problems arise from decentralised administration,
case by case. There is no cause to assume that centralised administration
is always better. The principle of subsidiarity is the better one: matters
should be administered at the level of government best placed to deliver
the desired outcomes.
1.14 We are satisfied that the present Commonwealth government has taken
appropriate initiatives in environmental management where a Commonwealth
involvement is beneficial - as for example, in the national co-ordination
activities of the National Environment Protection Council, and most notably
in the present Environment Protection and Biodiversity Bill 1998.
We acknowledge that some think the Commonwealth should do more but that
is by no means a universal view. We note that some submissions, notably
from the Country Women's Association of Western Australia thought that
the states are best placed to protect the environment, and that they should
not allow the Commonwealth Government to intervene. This group argued
against a Commonwealth role, stating that `a government which is isolated
by thousands of kilometres is not well placed to monitor and protect a
fragile state'. They were firm in their view that state governments were
`closer to the people'. [3]
1.15 Other groups also preferred the States to have main control of day-to
day decision making. Hence the Minerals Council of Australia stressed
that in its view:
…[the Commonwealth's] leadership or coordination role needs to very
carefully evaluated and exercised and does not necessarily mean that the
Commonwealth should in all such cases be taking on-ground action or running
programs within States. [4]
1.16 The Minerals Council of Australia held that the aims should be:
• clarity
• transparency
• consultation with key stakeholders
• consistency
• removal of duplication and overlap
• efficiency
• cost-effectiveness
• accountability…
1.17 Industry considers that applying these criteria would result in
a clear process for determining the most appropriate level at which management
should occur. In most instances much of the Commonwealth's current responsibilities
would be undertaken by State and Territory authorities through accreditation
of relevant processes. [5]
1.18 The National Association of Forest Industries felt that the primary
or substantial responsibility for the environment and land management
should remain with the States because:
- State governments remain the dominant or most substantial landowner
in every State;
- the State and Territories have been bestowed with the majority of
land management responsibilities, having commenced fulfilling these
responsibilities well before the time of federation, and more specifically
since white settlement; and
- the Commonwealth being granted specific powers at federation…
no such powers were granted specifically… with respect to the environment…
[6]
1.19 A number of submissions from all sides stressed the important role
of local government in environmental protection (given that important
land management powers are delegated to local government).
Local Government has a vital role in the preservation and management
of the natural environment. The commitment of Local Government to environmental
policies and programs is necessary for their long-term success. Local
Government has a key role in land and coastal management, planning and
infrastructure development, as well as waste management, and there has
the authority (although it is not necessarily compelled) to implement
Commonwealth environmental policies at the local area level. [7]
1.20 Submissions stressed the role of local knowledge in solving local
problems, and the importance of grassroots action - hopefully hampered
as little as possible by the bureaucratic demands of the higher levels
of government. [8]
1.21 Dr Alexander Webster, the Chief Executive of the Institution of
Engineers, also suggested that, subject to national standards, there should
be greater environmental responsibility at the local level. As he put
it, `people in the end have to be responsible for the environment they
live in'. Dr Webster suggested a national system of accreditation for
those carrying out environmental impact assessment, and also for those
evaluating impact assessments. [9]
1.22 The Committee notes that this pretty well tracks the guiding principles
in the reform of the environmental impact assessment process provided
for under the Council of Australian Governments (COAG) Agreement [10]
and being implemented through the provisions of the Environment Protection
and Biodiversity Conservation Bill 1998.
1.23 As the Minister for Environment stated in his second reading speech
to that bill, the government is committed to formal recognition, under
Commonwealth legislation of State legislative regimes by providing accreditation
of State processes and decisions. [11]
1.24 The Environment Protection and Biodiversity Conservation Bill
1998 (in particular clauses 45 to 49 of the Bill) addresses specific
issues raised by bilateral agreements between the Commonwealth and the
States and provide for the Commonwealth Minister to satisfy himself that
certain criteria relevant to the impacts of proposed actions on the environment
have been adequately considered before `accrediting' State practices.
Matters of national significance
1.25 Government Senators disagree with the recommendation of the majority
report to abandon the concept of “national environmental significance”.
A large number of submissions to the inquiry urged a greater Commonwealth
involvement in `matters of national environmental significance'. Many
suggested particular matters that they thought fall into this category
but no suggestions were made as to how, in principle, the category should
be defined. There was frequent ambiguity in submissions over whether `national
significance' is meant to refer to the high importance of a matter,
or the widespread occurrence of it, or the supposed desirability of centralised
management.
1.26 For example, is the preservation of an endangered species endemic
to one hillside a matter of national significance, on the ground that
preservation of endangered species generally is an important matter?
Or is it a matter of merely State significance, on the grounds that the
species is limited to one State; or on the grounds that State systems
are `appropriate' to manage the problem? Is coastal development a matter
of national significance, since it raises similar problems all around
the country? Or is it a matter of State or local significance, on the
grounds that its problems can be handled locally? And if coastal development
is a matter of national significance, does this mean that the Commonwealth
should be involved in approving every coastal subdivision?
1.27 Government Senators consider that what has `national significance'
is a matter not of objective definition but more often of judgment depending
on the community values of the day. Accordingly (for example) we do not
think that there is anything untoward about the fact that the Council
of Australian Governments' 1997 Heads of Agreement on Commonwealth/State
Roles and Responsibilities for the Environment lists 31 matters of
national environmental significance, but the Environment Protection
and Biodiversity Conservation Bill 1998 only proposes that six of
these should be triggers of Commonwealth environmental impact assessment
(while the seventh matter, places of national heritage significance is
still being considered).
1.28 Many submissions to this inquiry were concerned by what they saw
as the Commonwealth refusing responsibility for the other 24 matters.
This is far from the case. COAG acknowledged that the Commonwealth has
`interests and obligations' in relation to all the 31 matters. Government
Senators endorse the approach of the Environment Protection and Biodiversity
Conservation Bill 1998 because it ensures that projects with national
environmental impact do not escape Commonwealth assessment, that the Commonwealth
becomes involved early and in a manner that is clearly set out in legislation
and that avoids unnecessary duplication.
Public participation
1.29 We note the concern expressed in submissions relating to lack of
opportunities for public input into environmental decision making. We
note that the Environment Protection and Biodiversity Bill 1998
provides ample opportunities for public input in a number of areas including
the carrying out of environmental impact assessments (for example, clauses
93, 97(5), 98, 102(5), 103, 110 and 146(2)(b)), the preparation of management
plans for protected areas (clause 368), the nomination of listed threatened
species, ecological communities and key threatening processes (clause
191), the preparation of recovery plans for endangered species and threat
abatement plans (clauses 275 and 276), the preparation of wildlife conservation
plans for listed migratory species, listed marine species and cetacean
species (clauses 290 and 291) and the monitoring of State compliance with
bilateral agreements (clause 57).
1.30 Furthermore, the Bill contains appropriate standing provisions,
allowing people and organisations with a recent history of genuine environmental
interest and activity to take action in the courts.
Conclusion
1.31 To a large extent in this inquiry submissions from environment groups
and submissions from government and industry were dealing with different
topics. Environment groups were focussed on improved environment protection;
governments and industry groups were focussed on fair and efficient administration
of environmental protection aimed at delivering certainty. Environment
groups by and large argued for greater Commonwealth control for a single
reason: they do not trust the environmental credentials of the States
and local government, and they hope the Commonwealth will make decisions
more favourable to the environment. Governments and industry argued for
a less centralised approach based on various criteria of appropriateness,
such as efficiency, transparency, simplicity, the value of local ownership.
The environmental outcome is a particularly important criterion, but it
is not the only one.
1.32 Government Senators think the second is the better approach. Environment
versus development decisions are often controversial. Competing interests
must be balanced. Environmental protection is very important; but however
important it is, is not politically realistic to look only to the ideal
environmental outcome without regard to the other interests involved.
1.33 We must look to what the appropriate roles of the different governments
are in principle, not simply to which government is making the decisions
we most agree with this year. If decisions of a certain type are most
appropriately made by State or local government, and if these decision-makers
from time to time make controversial decisions, the political solution
lies in the hands of the state or local electors and interest groups.
Their activity will show where community opinion lies on the right balance
between environmental protection and other interests. The solution is
not to reserve the matter to the Commonwealth on an ad hoc basis
in the hope that the Commonwealth will make a different decision. To do
so is unlikely to win the co-operation of State governments or local communities
- co-operation that is essential for better environmental management in
the longer term.
1.34 Governments at any level can manage the environment well or badly.
In the end the resources we put into environmental protection depends
not on which level of government is doing the job, but on the community
values which, via the democratic process, motivate governments. It is
not that we think that State and local governments reflect the values
of their communities any more or less well than the Commonwealth, or that
they are any more or less worthy to be environmental managers.
1.35 In saying all this to balance the centralist tenor of the majority
report we do not wish to diminish the importance of the Commonwealth in
environmental management. The Commonwealth has many appropriate roles
in national leadership and national co-ordination on environmental matters
and, in some matters, an appropriate role in development control.
But we stress that in a federal system the right division of roles among
the governments is a matter that the governments need to debate and agree
together: it is not something that can be dictated by an authoritarian
Commonwealth.
1.36 Government Senators on the Committee are not making any recommendations
in this report since we have made extensive recommendations on parallel
issues in our report on the Environment Protection and Biodiversity
Bill 1998 tabled in April 1999. We reiterate that in our view, the
present government is showing its commitment to a high standard of environmental
protection and is taking appropriate initiatives through the Bill currently
before the Senate.
Senator John Tierney Senator Marise Payne
Footnotes
[1] Australian Conservation Foundation,
[2] Submission No. 347 (Government of Queensland),
p. 1796
[3] Submission No. 6 (Country Women's Association
of WA Inc.), p. 34
[4] Submission No. 217 (Minerals Council of
Australia), attachment p. 3
[5] Submission No. 217 (Minerals Council of
Australia), attachment p. 3
[6] Submission No. 333 (National Association
of Forest Industries Ltd), p. 1572
[7] Submission No. 361 (Department of Transport
and Regional Development), p. 6
[8] For example, see Transcript of Evidence
23 April 1998, p.143ff
[9] Transcript of Evidence (Dr Alexander Webster,
Institution of Engineers), 30 September 1997, p. 29
[10] Council of Australian Governments, Heads
of Agreement on Commonwealth/State Roles and Responsibilities for the
Environment, (Bilateral agreements), p.15
[11] Senator the Hon Robert Hill, Minister
for the Environment, Senate Hansard, 2 July 1998, p 4797.
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