Shades of Green? Proposals to Change Commonwealth Environmental Laws


Research Paper 16 1997-98

James Prest and Susan Downing
Law and Bills Digest Group
23 June 1998

Contents

Major Issues Summary

Introduction

Background to the Process

COAG Heads of Agreement of November 1997
Policy Context

Proposed Environment Protection Act

Rationale for changes
Comment
Other Criticisms
Accreditation

Proposed Biodiversity Act

Aspects of the Proposed Biodiversity Conservation Act

Relevant International Provisions on Biodiversity
What is Biodiversity?
The Need for Effective Biodiversity Protection
Economic Impacts of Biodiversity Loss
The Biodiversity Convention
Implementation of the National Strategy for Biodiversity Conservation

Comment

Benefits of integration?
World Heritage
Other Comments on the Proposal

Proposed Heritage Protection Act

Proposed Regional Forest Agreement Legislation

Concluding Comments

Endnotes

Appendix : Matters of National Environmental Significance

Matters triggering Commonwealth involvement (Part 1 of Attachment 1)
Non trigger matters of national significance

Glossary of terms

Administrative Procedures The regime of administrative procedures approved by the Governor General under s. 6 Environment Protection (Impact of Proposals) Act 1974.

AHC The Australian Heritage Commission, established under the Australian Heritage Commission Act 1975.

BCA The proposed Biodiversity Conservation Act.

CITES The Convention on International Trade in Endangered Species of Wild Fauna and Flora. Opened for signature in Washington on 3 March 1973. CITES entered into force generally on 1 July 1975 and for Australia on 27 October 1976.

COAG The Council of Australian Governments.

EIA Environmental Impact Assessment.

EPA The proposed Environment Protection Act.

EPIP The existing Environment Protection (Impact of Proposals) Act 1974.

ESD Ecologically Sustainable Development.

ESP The existing Endangered Species Protection Act 1992.

IGAE The Intergovernmental Agreement on the Environment signed in 1992 by the Commonwealth and the States and Territories.

Intergenerational equity means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

Precautionary Principle The precautionary principle states that where there are threats or potential threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Ramsar The Convention on Wetlands of International Importance Especially as Waterfowl Habitat signed at Iran, 2 February 1971. The Ramsar Convention entered into force for Australia and generally on 21 December 1975.

RFA Regional Forest Agreement.

WHPCA The existing World Heritage Properties Conservation Act 1983.

Major Issues Summary

  • The Federal Government has announced plans for what could potentially be the most far-reaching changes to Federal environmental laws in twenty years. The policy direction announced in the Consultation Paper follows a trend since the early 1990s towards the devolution of Commonwealth involvement in environmental regulation to the States.
  • The Government has proposed the introduction of three new Bills to replace seven existing Commonwealth environmental laws, some of which presently form the core of the Commonwealth's legal framework for environmental protection.
  • The proposed environmental law package is mainly focussed on 'green' environmental issues, and is not substantially aimed at reforming Commonwealth laws relating to toxic and hazardous substances and other environmental pollution.
  • The proposed 'Environment Protection Act' is intended to replace the Environmental Protection (Impact of Proposals) Act 1974. The proposed new regime for environmental impact assessment will rely to a large extent upon accredited State government procedures. The reliance by the Commonwealth upon State laws raises the debate over the most appropriate role for the Commonwealth in environmental regulation. At one end stand devotees of what has been known in the past as 'States' rights', and at the other, centralists seeking a greater role for the Commonwealth to dictate environmental standards to the States.
  • A new 'Biodiversity Act' is proposed to replace five Commonwealth laws relating to nature conservation. The law most likely to be subject to far reaching alterations is the World Heritage Properties Conservation Act 1983. The extent to which existing treaty obligations will be further implemented by the proposed domestic legislation is not fully detailed in the Consultation Paper.
  • A new 'Heritage Act' has been proposed to replace the Australian Heritage Commission Act 1975. This new law will involve the accreditation of State laws on heritage protection, and is likely to significantly alter the role of the Register of the National Estate.
  • The Commonwealth Government is also proposing to present legislation to 'complement' the Regional Forest Agreement (RFA) process. This legislation will suspend the operation of selected provisions of Commonwealth environmental laws in areas subject to an RFA.
  • The package is likely to introduce a number of new provisions into the core of Commonwealth's environmental law regime, such as the principles of ecologically sustainable development. Apart from such changes, the overall approach proposed appears largely to be one of reliance upon 'accredited' State mechanisms, and the confinement of the Commonwealth's role to so-called 'matters of national significance'.

Introduction

The Federal Government has announced plans for perhaps the most far-reaching changes to Federal environmental laws in twenty years.(1) Some of the proposed changes are outlined in a consultation paper released in February 1998 by the Commonwealth Environment Minister, Senator the Hon. Robert Hill, which was entitled Reform of Commonwealth Environment Legislation ('the Consultation Paper'). That paper proposed that three new Acts will replace seven of the Commonwealth's main environmental laws(2) with a new Environmental Protection Act, a Biodiversity Conservation Act and a Heritage Protection Act.

The Consultation Paper states that the Commonwealth intends to 'develop a contemporary regime which reflects world's best practice'.(3) Such a regime would involve the 'efficient' discharge of Commonwealth responsibilities, as present laws are said to have failed to deliver 'certainty' for the proponents of development projects and are said to involve too much potential for unnecessary delay or duplication.(4)

The Minister has declared that the Government intends to confine the Commonwealth's role to matters of 'national environmental significance'(5) to avoid Commonwealth involvement in matters of 'local or State significance'. It is argued that present triggers for the operation of Commonwealth environmental laws are 'ad hoc and indirect' and not sufficiently related to environmental significance.(6)

The broad objectives of the proposed legislative changes are to rectify the following perceived defects of Commonwealth environmental laws set out in the Consultation Paper:

  • the present legislation 'does not reflect an appropriate role for the Commonwealth'
  • the legislation is piecemeal and not well integrated
  • the legislation does not include or make reference to the principles of ecologically sustainable development (ESD)
  • the legislation is not well equipped to deal with emerging issues, and
  • the gradual evolution of State environmental laws has not been adequately recognised to date in Commonwealth laws.(7)

Background to the Process

The legislation to be introduced aims to give effect to a recent, 'low key' review of Commonwealth environmental laws.(8) This review was conducted between December 1996 and November 1997 by a working group of senior officials of State and Commonwealth environment protection agencies reporting to COAG, the Council of Australian Governments. Its review was entitled Review of Commonwealth/State Roles and Responsibilities for the Environment.(9) Broadly, this review sought to determine the most appropriate role for the Commonwealth in environmental matters.(10)

A number of extensive reviews has been conducted in recent years considering options for reform of particular Commonwealth environmental laws such as the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act)(11) and the Australian Heritage Commission Act 1975 (the AHC Act).(12) (Previous proposals relating to the EPIP Act are discussed below at 'Proposed Environment Protection Act'). Other reviews have examined the future role of Commonwealth environmental laws as part of the wider micro economic reform agenda, including the National Commission of Audit report(13) and the ongoing review of Commonwealth laws conducted by the Industry Commission's Office of Regulation Review.(14)

COAG Heads of Agreement of November 1997

The Consultation Paper released in February 1998 is the public face of behind the scenes Commonwealth-State negotiations which followed the 'Review of Roles and Responsibilities'. These resulted in an 'in principle' agreement by COAG to a 'Heads of Agreement' document in November 1997.(15) The Consultation Paper should be read in conjunction with the COAG Agreement, which contains the following points of agreement:

  • inter-governmental relations on the environment are to be based on the principles of cooperation, effectiveness, efficiency, simplicity, transparency, and seamlessness
  • the Commonwealth role in environment matters is to be confined to regulating those proposals having significant impact on 'matters of national environmental significance'
  • only seven items of a list of 30 'matters of national significance' will be triggers for Commonwealth involvement, whilst the 23 remaining 'matters of national significance' will not (see Appendix at page 30-31)
  • the Commonwealth will only add items to the list of 'matters of national significance' upon consultation with the States(16)
  • project approval is to be 'streamlined' to rely on accredited State processes, and
  • the changes are to have no impact on the operation of Regional Forest Agreements (RFAs).

Policy Context

Whilst the question of the appropriate boundaries for the use and scope of Commonwealth powers to protect the environment is presently the subject of a Senate Committee inquiry, debate on the subject is no novelty.(17) The policy direction announced in the Consultation Paper follows a trend since the early 1990s towards the devolution of Commonwealth involvement in environmental regulation to the States. The Inter-governmental Agreement on the Environment (IGAE) was the first endorsement of the practice of Commonwealth accreditation of State environmental impact assessment regimes.(18)

A key policy objective of the Commonwealth Government is set out in the Consultation Paper as follows:

The most significant outcome from the COAG Review is agreement that the Commonwealth's role should be focussed on matters of national environmental significance. The Commonwealth should not be involved in matters of only local or State significance.(19)

It is important to analyse present proposals in the context of the long running debate over the most appropriate role for the Commonwealth in environmental regulation. At one end stand devotees of what has been known in the past as 'States' rights', and at the other, centralists seeking a greater role for the Commonwealth to dictate environmental standards to the States. This debate has been played out in numerous disputes over the management of particular natural places, which have often become the subject of Commonwealth action later challenged in litigation commenced by State governments. Major Commonwealth-State conflict arose during the 1970s and 1980s(20) over matters including proposals for oil drilling on the Great Barrier Reef(21), and the damming of the Franklin River.(22) Other disputes arose over the continuation of sand mining (and, later, logging) on Fraser Island(23), and the logging of forests in Southern Tasmania(24) and North Queensland.(25)

Professor Bates summarised the legal outcome of these disputes as follows:

The irony is that legal challenges initiated by them [the States] to Commonwealth involvement in environmental issues has only served to enable the High Court to redefine the extent of Commonwealth-State powers in favour of the Commonwealth, and thereby upset the long held notion that legislative capacity in respect of environmental affairs rests primarily with the States. (26)

In recent years 'respected constitutional lawyers have argued convincingly that the Commonwealth has a considerable capacity to override State environmental legislation if it so desires'.(27) Professor Lindell expressed the situation surrounding the Commonwealth's power to legislate for environmental protection this way:

The absence of an express federal legislative power with respect to the environment does not prevent the Commonwealth Parliament from relying on existing legislative powers to pass laws which deal with the environment.(28)

In 1991 Professor James Crawford wrote: 'The lesson of a careful study of the last fifteen years experience is that the Commonwealth has one way or another, legislative power over most...environmental matters.'(29) Obviously this is subject to the usual limitations, such as the operation of s. 92 of the Constitution.(30) Thus, in practice, the operative question is more a matter of whether or not the Commonwealth chooses to exercise its legislative powers, rather than whether that competence exists. (31)

Where it is determined that a policy of cooperative federalism is appropriate, there are a number of possible legislative options, including:

  • the passage of complementary or mirror legislation by Federal and State parliaments
  • the passage of Commonwealth legislation pursuant to a reference of powers by State Parliaments under section 51(xxxvii) of the Constitution
  • the application of a law in one jurisdiction (e.g. Commonwealth) serving as a model in all participating jurisdictions. (32)

In the United States, the concept of cooperative federalism most closely follows the third model, so that 'State laws are completely pre-empted to the extent that they conflict with the federal approach-generally meaning that the State regulations cannot be any less stringent than the federal.'(33)

Proposed Environment Protection Act

The Consultation Paper proposes the repeal and replacement of the Commonwealth environmental impact assessment law, under which environmental impact statements (EIS) are prepared-the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act).(34)

The Consultation Paper states that the new Commonwealth law will seek to 'maximise reliance upon State processes which meet appropriate standards' by means of bilateral agreements which will accredit State environmental impact assessment regimes.(35) Also suggested is resort to 'case-by-case' assessment of specific development projects.(36)

A significant feature of the proposed legislation is a requirement that decisions are to be based on the principles of ecologically sustainable development (ESD), including the precautionary principle (see below at p. 11) and the principle of 'inter-generational equity'.(37)

The Consultation Paper further proposes amendments to remove the potential for the concurrent application of both the EPIP Act and the Australian Heritage Commission Act 1975 to a particular environmental issue.(38)

Rationale for changes

The Consultation Paper claims that existing legal mechanisms which trigger the operation of the EPIP Act are 'indirect and ad hoc'.(39) These triggers include foreign investment, export controls(40) and funding decisions. The Consultation Paper proposes that these be deleted and replaced with 'matter of national significance' triggers(41) and states that the new Act will deliver 'a significantly more efficient assessment and approval process which increases certainty for proponents and eliminates unnecessary duplication.'(42)

Comment

Whilst considering present proposals for law reform it is relevant that an extensive review of the EPIP Act was commenced in 1993(43), running until 1995, and resulted in the presentation within government of a wide range of proposals for the reform of the Act, which were not subsequently adopted.(44) It will be interesting to see whether the information and submissions collected in that process were reviewed in the course of the drafting of the proposed legislation. A considerable body of academic analysis of environmental impact assessment regimes has been assembled and such analysis will be relevant to the design of any future law.(45)

It is not clear whether the new law will rectify the defects of the existing EPIP Act.(46) It is apparent that separate environmental regimes for airports(47) and telecommunications will be maintained.(48) In relation to telecommunications, the Telecommunications Act 1997 (Cwlth) provides generally that carriers are no longer exempt from State and Territory environment, heritage and planning laws, subject to three broad categories of exemption: transitional arrangements; inspection, maintenance and installation; and facility installation permits. (49)

The Consultation Paper proposes a number of major departures from the present approach to environmental impact assessment decision making contained within the EPIP Act. Currently, it is only the 'Action Minister' who can trigger the assessment process by designating a proponent. Under the proposed new regime, the Environment Minister may decide to trigger the Act, if a matter has not already been referred to him/her under proposed procedures for referral by Commonwealth or State bodies and also project proponents. A related change proposed is to empower the Environment Minister to make the decision about the environmental significance of a proposed development, whereas at present that decision is made by the 'Action Minister'. Further, the Environment Minister will make the final decision about whether a proposed development is to proceed or not, instead of the present arrangement where such decisions are made by the relevant 'Action Minister'.(50)

The Consultation Paper does not provide advice on the question of whether the present Administrative Procedures will be incorporated into the main body of the new Act. Professor Bates has criticised the fact that the Procedures do not have the status of Statutory Rules, and observed: 'Frequent and progressive amendment of procedures can perhaps be achieved in this fashion but they do not receive the scrutiny of the Parliamentary Regulations and Ordinances Committee which might detect obscure, ambiguous or undesirable provisions'.(51) The EPIP Act presently contains no penalties for non-compliance with the provisions of the Administrative Procedures. Nor does it contain specific clauses to apply in the event of a breach of the Act, nor specific additional review rights. In the event of non-compliance, recourse is principally only available in the Federal Court in costly and involved proceedings, as the present Act does not provide for review in the Administrative Appeals Tribunal.(52) However, the Consultation Paper states: 'Consistent with the established Commonwealth position, merits review of decisions under Commonwealth environmental law will not be expanded ...'.(53)

At present, the EPIP Act creates no obligation to arrive at certain outcomes or to adhere to certain minimum standards of environmental protection. An oft cited defect is the breadth of Ministerial discretion not to 'designate' proponents, thereby avoiding invoking the Act altogether.(54) It is unclear from the Consultation Paper whether such defects will be rectified. In 1997, under the heading 'Approve Now-Assess Later: Is Commonwealth environmental impact assessment an empty ritual ?', one legal commentator wrote:

EIA [under this Act] is essentially procedural, rather than substantive in nature (that is, there are no prescribed outcomes or prohibitions involved in the EIA process). It has always been susceptible to becoming a mere formality....In recent times this trend has become increasingly apparent, to the point where there are a number of examples of the Commonwealth giving approval to a proposed development before any substantive assessment occurs.(55)

Other Criticisms

Some critics have questioned the choice of the term 'matter of national significance' and the assumptions underlying such terminology.(56) There may also be considerable practical difficulties in drawing the line between what is to be considered a 'matter of national significance' and what is not.

The Consultation Paper suggests that the present triggers under the EPIP Act do not take into account the magnitude or significance of projected environmental impacts.(57) This argument is perhaps misleading. At present, Commonwealth involvement is only triggered where there are likely to be 'significant' effects on the environment.(58) That the EPIP Act obliges Commonwealth decision makers to consider only significant environmental impacts was confirmed in litigation in 1995 over Tasmanian export woodchipping (the Gunns case(59)). The Australian Government Solicitor's Office commented on this point:

[The] Gunns case confirmed that before taking action or making a decision [under the EPIP Act], Commonwealth decision makers were required to specifically consider whether a contemplated action was likely to have a significant effect on the environment. A decision might be set aside if there was a failure to specifically address this issue, or, if the action was environmentally significant, [and] there was a failure to refer the matter to the EPA and observe the relevant assessment procedures.(60)

Accreditation

Given that the proposed package of legislative amendments is likely to involve substantial reliance upon the mechanism of accreditation of State environmental law regimes, it is important to consider some issues associated with the practice of accreditation. A similar approach of accreditation is being proposed in the area of Aboriginal and Torres Strait Islander heritage protection in a bill currently before Parliament.(61)

Environmental lawyer Professor Rob Fowler considered the question in a 1994 publication, writing:

An idea of how this process might work was provided in the case of the McArthur River [mining] project, where the involvement of the CEPA [Commonwealth Environment Protection Agency] in the environmental assessment process did not extent to the formal direction of an EIS under the Commonwealth Impact Act, because CEPA and the Commonwealth Environment Minister concluded that it was possible to accept and rely upon the environmental impact assessment carried out by the proponent under the Northern Territory EIA procedures. This was so, despite substantial critical comment on the draft EIS by expert scientists and a time frame for the process which compressed the whole exercise into just six months. (62)

However, Professor Fowler did not overlook the possible benefits associated with accreditation. He wrote:

The other and more constructive side of accreditation is that it could enable the Commonwealth to induce the States and Territories to improve and harmonise their environmental laws. By withholding accreditation from a State or Territory which does not have measures which are adequate or at least equivalent to those of its counterparts, the Commonwealth could encourage greater uniformity.(63)

In 1996 he expressed the view that:

My objections to accreditation are based ultimately on the view that, if the Commonwealth has a responsibility for the assessment of environmental issues of national or international importance, and has legislated to assume such a responsibility, it should not be able to delegate, either completely or partially, that responsibility to the States. (64)

Other commentators have questioned the use of accredited State processes on the basis that sufficient standards and safeguards must be built into the accreditation process. Often the only substantial sanction available in the event of major non-compliance is the drastic step of cancellation of accreditation.(65) Ultimately, a key issue relating to the use of accreditation is the extent of transparency of the process adopted. Professor Fowler more recently commented on the proposed accreditation regime as described in the Consultation Paper:

'It [accreditation] is capable of manipulation... You have a mechanism - in the form of agreements, whether they are conservation agreements, case by case accreditations, or generic accreditations - which at the moment is beyond scrutiny. It is a very difficult thing to have confidence in a system which relies almost entirely on agreements between States and the Commonwealth with no apparent public scrutiny or external scrutiny...'(66)

Proposed Biodiversity Act

The Government has proposed to introduce legislation in the form of a Biodiversity Act (BCA) to better implement Australia's obligations under the Biodiversity Convention.

Aspects of the Proposed Biodiversity Conservation Act

  • The BCA will make provision for protected areas management, conservation agreements, protection of threatened species and ecological communities, nomination for listing of potential World Heritage properties, and will incorporate some existing approaches such as those already in place pursuant to other treaties, for example with respect to whales and the trade in exotic species. (67)
  • The BCA will provide a legal framework for Commonwealth-State cooperation on the identification and monitoring of biodiversity.
  • The BCA will provide for conservation agreements relating to biodiversity conservation on private land.
  • The Consultation Paper endorses the concept of multiple use management of Commonwealth protected areas, but does not clarify in which zones extractive industries will be prohibited other than in the most highly protected zones.(68)
  • 'Bio-regional planning' will be promoted. The Consultation Paper proposes making substantial use of bio-regional conservation plans with the States.(69)

Relevant International Provisions on Biodiversity

Australia is a party to several international agreements which relate either directly or indirectly to the conservation of biodiversity. These include the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the World Heritage Convention, the Law of the Sea Convention, (70) the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR), the Antarctic Treaty system, the Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention) and the Convention on Biological Diversity. The most significant of these, for biodiversity, is the Convention on Biological Diversity (the Convention) which Australia signed at the United Nations Conference on Environment and Development (UNCED) Rio Earth Summit on 5 June 1992 and subsequently ratified on 18 June 1993. The Convention entered into force on 29 December 1993 and around 150 countries are already contracting parties.

What is Biodiversity?

Article 2 of the Biodiversity Convention defines biological diversity as:

the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.

The Need for Effective Biodiversity Protection

Loss of biodiversity has been identified by successive governments and other organisations as a serious problem in Australia. For example, the Intergovernmental Agreement on the Environment (IGAE) of 1992 between the Commonwealth and the States and Territories, cited the conservation of biodiversity as a fundamental consideration.(71) The IGAE stated that the Commonwealth would formulate a national strategy as a means of implementing the Convention.(72)

The more recent Commonwealth State of the Environment (SOE) Report of 1996 stated:

Australia's record of mammal species extinction is the worst for any country. In the past two centuries, the country has lost ten species of the original marsupial fauna of 144 species and eight of the 53 species of native rodents. More than one hundred mammal species are considered endangered, vulnerable, or potentially vulnerable.(73)

The Consultation Paper states (at p.19) that 20 mammal species, 20 bird species and 76 plant species are known to have become extinct since European settlement. The actual number of species lost is likely to be much higher than that, since much of Australia's flora and fauna remains unidentified in scientific literature.(74)

Independent reports, such as the 1996 SOE report, have maintained that the problem of biodiversity loss has not been adequately addressed, stating that 'adequate measures are not yet in place to protect biodiversity.'(75) The OECD recently examined Australia's overall environmental performance and in relation to biodiversity conservation acknowledged that many positive mechanisms are in place:

Australian has established a solid institutional, legal and scientific basis for managing its responsibilities for a significant proportion of the world's biological diversity. Furthermore, many voluntary, community based programmes with significant popular participation have been established and have contributed to a high level of awareness of environmental challenges. (76)

However, the OECD report continued:

In the light of the extent and pace of...pressures on terrestrial and aquatic ecosystems, progress with programmes for biodiversity conservation outside protected areas has been extremely limited...It is not certain that the improvements so far have the strength, scope and speed to reverse the trends in these pressures and related biodiversity degradation.(77)

The principal causes of the loss of biodiversity are: destruction of habitats (most significantly from land clearing); the presence of exotic species; overexploitation; trade in wildlife, wildlife parts and derivatives; and pollution.(78) The 1998-99 Budget addressed many of these issues by allocating money to the national reserve system, to the control of feral animals and weeds, to wildlife conservation and threatened species and to Cooperative Research Centres and the CSIRO for work on biodiversity, its role in ecosystems and conservation.(79)

Economic Impacts of Biodiversity Loss

A loss of biodiversity has been shown to affect the balance of atmospheric and weather systems.(80) Therefore, one consequence of a loss of biodiversity is that the agricultural industry will be affected and any deterioration in the climate is likely to result in lost revenue from commercial crops. Industries like eco-tourism may also be affected.

A second benefit to commercial crops of preserving biodiversity is that genetic material can be cross-bred into commercial stock to improve production. The tendency towards monoculture in agricultural crops renders those crops vulnerable to pests and diseases(81). Without the continued cross-breeding of new genetic material, agricultural crops are at risk. The 'genetic material in wild species contributes billions of dollars yearly to the world economy in the form of improved crop species, new drugs and medicines, and raw materials for industry'(82). For example, the value to the United States tomato industry of the genes found in a Peruvian plant was estimated at around $US8 million dollars per year in 1988. When crossed with the commercial tomato, the Peru strain increased the size of the fruit, the pigmentation and enhanced the taste.(83) A further example is that of a wild barley plant found in Ethiopia which proved invaluable to the California barley plantations. The gene from the Ethiopian barley was found to protect against the lethal yellow dwarf virus and when crossed with the commercial crop of barley in California it naturally protected the $US160 million crop against the virus. (84)

The Biodiversity Convention

Each country that is a party to the Convention is responsible for the conservation and sustainable use of its own biodiversity. In addition, countries cannot argue that the actions significantly threatening biodiversity are in accordance with their treaty obligations just because there was a paucity of scientific data to the contrary. That prohibition echoes the precautionary principle which states:

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (85)

It is unclear from the Consultation Paper exactly how the 'precautionary principle' is to be applied by the proposed biodiversity conservation law.(86)

The Biodiversity Convention also requires countries to implement national plans and programs to conserve biodiversity and incorporate the sustainable use of biodiversity resources in agricultural, fisheries and forestry policies. The conservation of biodiversity is to be both in -situ and ex-situ. That is that species are to be conserved in their natural habitats and ecosystems as well as having genetic reserves of animal and plant species in places like zoos and seed banks. The preamble to the Biodiversity Convention, which may be used to resolve ambiguities in interpreting the text, indicates that in-situ conservation is to be preferred. This preference for in-situ over ex-situ conservation is generally favoured by the scientific community as well(87). The Global Biodiversity Assessment presented at the Jakarta rounds of negotiations recommended the development of arboretums, aquariums, botanical gardens, seed banks, forest nurseries, gene banks and zoological gardens as mechanisms of ex-situ conservation.

 

The Convention is an aspirational document which sets few specific obligations on State parties. It is expected that it will be strengthened in the future by the negotiation of additional protocols containing specific targets and obligations for biodiversity protection. For example, the November 1995 meeting of the State parties held in Jakarta, Indonesia reached agreement to draft a protocol governing the transboundary movement of living modified organisms (a biosafety protocol).(88)

 

One rationale for the introduction of the proposed BCA is to further implement the requirements of the Convention. The Consultation Paper states that the BCA will 'provide for the cooperative Commonwealth-State implementation of Australia's obligations under the Convention.'(89)

Whilst the Consultation Paper is couched in general terms, it appears that the Convention may not be fully implemented by the proposed law in a number of respects. For example, Article 14 advocates the use of environmental impact assessment (EIA) for proposed projects that are likely to have significant adverse effects on biodiversity. The proposed replacement of the EPIP Act discussed above may, in certain circumstances, result in gaps in the coverage of environmental impact assessment and where this is so then it would appear to be contrary to the intention of Article 14. This may arise where bilateral agreements and accreditation rely on State EIA laws, but where the State has chosen to apply 'special projects' legislation exempting a project from aspects of State EIA laws. (90)

Similarly, Article 8 of the Convention encourages the establishment of guidelines for the selection, establishment and management of protected areas. Article 8(e) recommends the adoption of buffer zones with heightened protection adjacent to protected areas. The aim of Article 8(e) being to enhance the protection of the critical areas. The Consultation Paper does not address this issue directly.

Implementation of the National Strategy for Biodiversity Conservation

A key mechanism for the implementation of the Convention is via the National Strategy for Biodiversity Conservation.(91) The Strategy, adopted by Commonwealth, State and Territory governments since the IGAE, sets positive goals for the conservation and sustainable use of biodiversity across many sectors. However, responsibility for its implementation is diffuse, and often precise mechanisms for its implementation are not specified.

An important criterion of evaluation of the BCA will be whether it takes further significant actions to implement the Strategy, and Australia's Convention obligations. The National Strategy was criticised in May 1998 by the Humane Society International and World Wide Fund for Nature Australia on the basis that its otherwise 'effective policy and institutional framework' had not been 'adequately translated into an action program' and that it was inadequately funded.(92)

Comment

The Government has declared that it intends to confine the Commonwealth's role to matters of 'national environmental significance'. However, some of the major causes of biodiversity loss, such as the loss of habitat arising from broad acre land clearance, are not contained within the list of seven 'matters of national significance' which will trigger the law (Appendix pages 30-31).(93)

In relation to biodiversity conservation, the Consultation Paper endorses the notion of bilateral agreements to accredit State environmental assessment processes and in some cases, decisions, as well as management plans. Where bilateral agreements, case-by-case agreements or conservation agreements are in place, Commonwealth legislation will not be triggered.(94)

In designing any new legal regime for the protection of biodiversity it will be essential to address the causes of biodiversity loss, among the greatest of which is the loss of habitat. The Consultation Paper indicates that the basic approach of the Endangered Species Protection Act 1992 (ESP Act) will be maintained and enhanced, via the process of listing endangered species.(95) However, the species by species approach to conservation employed by legislation such as the ESP Act has been criticised for failing to directly address the key threatening process of habitat loss.(96) It must be noted that the ESP Act does contain mechanisms for the listing of threatening processes and the listing of endangered ecological communities, thus giving it some potential to take a habitat based approach to threatened species conservation.

The present legislation requires a positive act by scientific experts to identify species(97) prior to them being placed on the list (following all the usual Gazettal requirements etc.). One of the great problems with biodiversity issues is simply that not all species have been identified let alone studied to see whether they are vulnerable. In addition there is an issue with the general public not easily being able to distinguish species from the scientific name promulgated on the list.(98) The Consultation Paper proposes that the Minister will be given the power to list and de-list species. In certain circumstances such an arrangement could be seen as creating potential for politicisation of the listing process.(99)

Benefits of integration?

It is said that the new biodiversity protection regime would involve a more 'efficient' discharge of Commonwealth responsibilities and better implementation of international obligations because of its approach of merging existing, related legislation. This will enable conservation priorities to be determined in a more systematic manner.

The document rests on the premise that an Act which consolidates existing laws will 'produce better outcomes'.(100) This is arguable but not self-evident. An alternative approach would be to improve rather than scrap existing legislation. The Consultation Paper provides little evidence that the existing legislation is problematic.

Given that the Consultation Paper does not propose the incorporation of legislation relating to management, to take one example, of the Great Barrier Reef, it is not clear why legislation addressing other discrete issues must be consolidated. Three of the laws which are proposed to be merged exist in order to implement specific obligations in international environmental law.(101) It may be easier to ensure consistency with treaty obligations if such legislation remained separate.

World Heritage

The Consultation Paper proposes to include the statutory protection of World Heritage sites within Australia in the proposed BCA. An initial observation is that perhaps it may have made more sense to provide for the protection and management of World Heritage within the proposed Heritage Act if streamlining is an overriding objective, rather than the proposed biodiversity law.

The Consultation Paper indicates that most of the five existing nature conservation laws are to be incorporated virtually 'as is' into the new Biodiversity statute, however, no such statements are made in relation to the World Heritage Properties Conservation Act (WHPCA).(102) From this fact one might infer that substantial amendments are envisaged.

The Consultation Paper suggests a number of significant departures from the present regime for the listing and protection of World Heritage properties, with an increased role for bilateral and conservation agreements to bypass regular processes.(103) It is proposed that in future, nomination of an area for World Heritage listing and the designation of sites as Ramsar wetlands(104) may only proceed if the Commonwealth has 'used best endeavours' to obtain consent of private landowners and relevant State governments.(105)

A further proposal is to alter legal 'standing' rules presently contained in the World Heritage Act. In the case of World Heritage, this may mean a narrowing of the class of persons able to approach the Federal Court seeking to enforce the Act. This would particularly affect the existing statutory rights of Aboriginal persons.(106)

Other Comments on the Proposal

The Consultation Paper focuses on the protection of properties that have either a World Heritage standard, are of national environmental significance, or that are designated Ramsar wetland sites or biosphere reserves. It could be argued that the protection of biodiversity is incidental to the international qualities of these sorts of sites. Less glamorous locations often may contain species crucial to the retention of biodiversity.

The extent to which the proposed law will protect biodiversity in 'off reserve' situations outside of nature reserves, is unclear. This is despite the general scientific consensus that reliance upon a protected areas strategy is inadequate to arrest present trends in Australia relating to decline of biodiversity(107). Other than the proposed provisions for the making of property agreements, the Consultation Paper does not propose any benchmarks, essential mechanisms, minimum outcomes or penalties that must be incorporated into State laws. Further, it is not envisaged that the Act will contain a mechanism for the nomination, assessment, and identification of critical habitat.(108) Thus, in spite of the questionable adequacy of at least some State legal regimes for biodiversity conservation(109), the Consultation Paper places heavy reliance upon State mechanisms together with the use of proposed private land conservation agreements to achieve off-reserve conservation goals.

Proposed Heritage Protection Act

Also included in the Consultation Paper is a proposal for the introduction, at a later date, of a Bill for a new heritage protection law. It is proposed that this involve the repeal of the Australian Heritage Commission Act 1975 (the AHC Act).(110)

This proposal forms part of a wider 'co-operative' National Heritage Places Strategy with the States, arising from COAG's agreement to 'rationalise existing Commonwealth/State arrangements for the identification, protection and management of places of heritage significance. This will be progressed through the development, within 12 months, of a cooperative National Heritage Places Strategy'.(111)

The most significant development envisaged is the compilation of a list of places of 'national heritage significance'. Also included is a proposal to transfer decision making powers directly to the Minister, who would have the task of listing nationally significant places. (112) At present, the Australian Heritage Commission (the AHC), an independent statutory authority, performs a similar task. Under the AHC Act, the Minister has no formal statutory role in the listing process.(113) The Minister can direct the AHC to inquire into whether a place should continue to be listed, but cannot direct the AHC to remove a place from the Register.(114)

The Consultation Paper suggests that 'rigorous criteria and high thresholds' are to be applied to the preparation of a national list of heritage places of 'exceptional value and importance to the nation as a whole.' In a speech given in October 1997, Senator Hill indicated the Government's intention to reduce the number of places listed on the proposed new register, as follows, explaining the likely future of places not included on the list:

Currently there are approximately 11,600 places listed in the national estate under the Commonwealth's AHC Act. Yet the Commonwealth has no real legislative ability to protect these places. In many cases, the responsibility for protecting these places should lie appropriately with the States and Territories. However, some of these places are clearly significant to the entire nation, and one option to ensure their protection is to create a national list of places over which the Commonwealth has greater protective powers...Responsibility for national estate places that do not qualify for a new national list of heritage places could be devolved to States and Territories as each jurisdiction implements a heritage regime consistent with the National Heritage Strategy.(115)

Given the desire to set 'high thresholds' it is important to examine the present concept of the 'National Estate'. The AHC Act describes the National Estate as follows:

The national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific, or social significance or other special value for future generations as well as for the present community.(116)

The Act lists eight separate criteria against which to assess a place or item for inclusion on the Register of the National Estate.(117) The word 'national' in the phrase 'national estate' was evidently intended to imply a certain significance of such places for the nation as a whole.(118)

The Consultation Paper proposes that 'Before listing a place, the Environment Minister should be required to reach agreement with the relevant State and any private property owner on the listing of the place and a management plan for the place'. Similar provisions exist in the present Act. However, they do not provide private landowners or State governments with the power to effectively veto listings despite having provisions for objections to the listing of places. (119) The AHC is required to advertise proposed listings, seeking objections. (120) It also contains provisions for the Commission to consider proposals that a particular item be removed from the Register.(121) Further, the decision to list a place on the Register is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.(122) The High Court recently affirmed the principle that such proceedings could only review the legality, and not the merits of a particular listing decision.(123) The Act does provide a power for the Minister to direct the AHC to enter or delete a place on the register, following or pending an inquiry under the EPIP Act.(124) However, given that inquiries under the EPIP Act are a rare event, this is a power not frequently available.(125)

It is proposed that new legislation would include mechanisms to maximise reliance on accredited State heritage procedures, and that section 30 of the AHC Act would no longer apply to national estate places in those States with an accredited heritage regime.(126) Comments made above in relation to accreditation of State environmental impact assessment regimes are equally pertinent here. Some suggestions regarding future law reforms in this area have been made by the Environmental Defender's Office:

The Paper is almost completely silent as to what standards and safeguards, if any will apply...Accreditation should only be granted where State heritage protection procedures meet defined best practice heritage protection criteria. In addition, accredited States should be subject to monitoring and regular review, and accreditation should be subject to satisfactory State performance.(127)

In conclusion, as the National Heritage Places Strategy has not been finalised, there is some difficulty in commenting fully on the proposals. The comments above should be read in this context.

Proposed Regional Forest Agreement Legislation

The proposed environmental law package is likely to affect the compliance obligations of a number of industries, including the forest based industries. It is essential to examine the likely impact of the proposed changes on the ongoing 'Regional Forest Agreement' (RFA) process. Broadly, the RFAs aim to provide guaranteed access to timber supplies whilst placing certain minimum target percentages of particular habitat types into a 'Comprehensive Adequate and Representative' (CAR) reserve system. The RFA process has not been uncontroversial.(128)

The Government has declared in both the Consultation Paper and the COAG Heads of Agreement that 'the proposed reforms to Commonwealth environmental law will not affect any arrangements entered into, at any time, as part of a Regional Forest Agreement.'(129)

For a variety of reasons, the Commonwealth Government declared in December 1997 that it intends to introduce legislation to 'complement' the RFAs, partly because it promised to do so within the text of the Tasmanian RFA.(130) The special legislation is considered necessary to bolster the legal foundations of the Regional Forest Agreements, presumably either because of difficulties with their enforceability(131) or because of the present potential vulnerability of the Tasmanian agreement to legal challenge.(132)

A discussion paper released by the Department of Prime Minister and Cabinet in December 1997 stated that the new legislation will override the operation of particular sections of the main Commonwealth environmental laws 'in relation to forest operations within an RFA area' as follows: (133)

  • s. 6, World Heritage Properties Conservation Act 1983
  • s. 30, Australian Heritage Commission Act 1975
  • s. 11 Environment Protection (Impact of Proposals) Act 1974, and
  • the Administrative Procedures under the EPIP Act.

A major aim of the RFAs is to phase out the application of Commonwealth woodchip export controls.(134) Regulations under the Export Control Act 1982 have been drafted so that the signing an RFA into force releases woodchip exporters from the operation of the export control regime, and thus licences for the export of woodchips from that region are no longer required.(135)

If a licence is not required to export woodchips, the scope for triggering the operation of other Commonwealth environmental laws may be limited. This is recognised in the PM&C discussion paper which states: 'as export licences for unprocessed wood derived from an RFA will not be required, the major potential trigger of the AHC Act and the EPIP Act in relation to native forests will be removed'.(136)

However an alternative interpretation is that even if export licences are not required because of the operation of the RFA or because of proposed 'RFA legislation', a number of other (non-export) triggers of the EPIP Act may apply. These may be found to exist within the RFA process through the very act of the making of the agreements, and through the making of associated financial grants.(137) For example, examination of s. 5(c) EPIP Act suggests that, as an agreement between the Commonwealth and State government, the RFA is an agreement capable of triggering the EPIP Act. Indeed, a 1995 Commonwealth discussion paper setting out the RFA concept admitted that entry to an RFA could trigger the Act.

Concluding Comments

It will only be possible to fully assess proposed changes to Commonwealth environmental laws when more details of the proposed regime are known. The appropriate level of Commonwealth involvement in environmental law is clearly a topic on which opinions are divided. The partial ceding of Commonwealth power over the environment involved in the use of accreditation of State regimes (through bilateral and case-by-case agreements) is more likely to find favour with State's rights advocates than those who prefer a more substantial Commonwealth role. Such is the reliance proposed upon State mechanisms that an observer may have difficulty in identifying situations in which the new Commonwealth laws will actually apply. One argument that will inevitably be aired is whether the Commonwealth will be able to ensure fulfilment of its international legal obligations, under the World Heritage Convention and the Biodiversity Convention for example, whilst making extensive use of such mechanisms.

Whilst a consensus exists that some efforts are required to modernise and improve Commonwealth environmental laws, the hard question to answer is what shape those changes should take. The scepticism surrounding the proposed package has not been confined to the environmental lobby, as the Australian Financial Review reported:

But while publicly supporting Hill's reform initiative, industry commentators privately wonder whether the effort will prove worthwhile. They are sceptical that the trouble free system promised by the Government will emerge. 'Business is being asked to buy a pig in a poke,' said one industry group representative. 'There will be those who say that the current system may be imperfect, but at least we know how it works.'(138)

As Senator Hill has acknowledged(139), the Consultation Paper is but one step in a process of overhauling the Commonwealth's environmental laws and there will be room for more debate on the proposed changes before they are finalised.

Endnotes

  1. J. Prest, 'Reforming Commonwealth Environmental Law?', Dept. of the Parliamentary Library, Research Note No. 44, 1997-98, see Senator the Hon. R. Hill, Media Release, 25 February 1998. Another analysis of the proposed changes is provided by S. Munchenberg, 'Commonwealth environment legislation review-a small revolution', Environmental and Planning Law Journal vol. 15, no. 2, 1998, p. 77.

  2. Acts to be repealed include Environment Protection (Impact of Proposals) Act 1974, National Parks and Wildlife Conservation Act 1975, Endangered Species Protection Act 1992, World Heritage Properties Conservation Act 1983, Wildlife Protection (Regulation of Exports and Imports) Act 1982, Whale Protection Act 1980, and Australian Heritage Commission Act 1975.

  3. Reform of Commonwealth Environment Legislation: Consultation Paper, issued by Senator the Hon. Robert Hill, Dept. of the Environment, Canberra, 1998, p. 1. (Hereafter 'Consultation Paper').

  4. ibid., p. 7.

  5. Senator the Hon. R. Hill, Speech to National Environmental Law Association conference, 26 March 1998.

  6. Consultation Paper, op.cit., pp. 8-9.

  7. ibid., p. 2.

  8. S. Munchenberg, 'Review of Commonwealth/State Roles and Responsibilities for the Environment' Environmental and Planning Law Journal vol. 14, 1997, p. 148.

  9. Intergovernmental Committee for Ecologically Sustainable Development (ICESD) Working Group on the Review of Commonwealth-State Roles and Responsibilities for the Environment, Consultation Paper, Canberra, December 1996.

  10. Senator the Hon. R. Hill, Speech to National Environmental Law Association conference, 26 March 1998, p. 2. Further comment on the ICESD review process is provided by J. Johnson, 'Commonwealth/State Roles and Responsibilities for the Environment' Impact, vol. 45, 1997, p. 8.

  11. Administrative Review Council, Review of Commonwealth Environmental Impact Assessment Decisions, Discussion Paper, Canberra, AGPS; 1993, Auditor General, 'Living with Our Decisions: Commonwealth Environmental Impact Processes', Audit Report No. 10, Australia Canberra, 1993; Commonwealth Environment Protection Agency, Review of Commonwealth Environmental Impact Assessment: Executive Summaries of Consultants' Reports, CEPA, Canberra, 1994; Commonwealth Environment Protection Agency Public Review of the Commonwealth Environmental Impact Assessment Process: Initial Discussion Paper: Setting the Direction, CEPA, Canberra, 1993; Commonwealth Environment Protection AgencyReview of Commonwealth Environmental Impact Assessment: Social Impact Assessment, CEPA, Canberra, 1994; Coopers and Lybrand, Commonwealth Environment Protection Agency Review of Commonwealth Environmental Impact Assessment: An Analysis of EIA Practices and Procedures in Australian States and Territories, CEPA, Canberra, 1994; J. Court, , C. J. Wright, and C. G. Alasdair, Commonwealth Environment Protection AgencyReview of Commonwealth Environmental Impact Assessment: Assessment of Cumulative Impacts and Strategic Assessment in Environmental Impact Assessment, CEPA, Canberra, 1994; J.D. Court, and C.J. Wright, Options for Monitoring Under the Environment Protection (Impact of Proposal) Act 1974, Commonwealth Environment Protection Agency, Canberra; 1994, D. Craig, and others, Commonwealth Environment Protection Agency, Review of Commonwealth Environmental Impact Assessment: Analysis of Environmental Impact Assessment Practice and Procedures in Other Countries, CEPA, Canberra, 1994.

  12. Australian Heritage Commission, Australia's National Heritage: Options for Identifying Heritage Places of National Significance, AHC, Barton, 1997; A National Future for Australia's Heritage: Discussion Paper, August, AHC, Barton, 1996; National Heritage Standards: A Discussion Paper, May, AHC, Barton, 1997.

  13. National Commission of Audit, Report to the Commonwealth Government, AGPS, Canberra, 1996, Chapter 4 at 4.11.

  14. Industry Commission, Digest of Current Research Projects as at 1 July 1997, Industry Commission, Melbourne, 1997, 36pp; Industry Commission, Regulation and its Review, September, 1996, p. 20.

  15. M.Langerman, 'Queensland Attacked for Failing to Sign Environment Agreement', AAP wire service, 24 April 1998.

  16. Consultation Paper, op.cit., p. 11.

  17. On 26 March 1997 the Senate resolved that a wide range of matters be referred to the Environment, Recreation, Communications and the Arts References Committee for inquiry and report. The reporting deadline at present is 30 June 1998.

  18. IGAE, clause 1.5, 2.5.1.1; Schedule 2, Items 6,8; Schedule 3, Item 1,4,5. See also Fowler, 'New National Directions in Environmental Protection and Conservation', in Boer, Fowler, and Gunningham (eds.), Environmental Outlook: Law and Policy, Federation Press, Sydney, 1994, pp. 113-148

  19. Consultation Paper, op.cit., p. 3.

  20. Generally, see T. Bonyhady, Places Worth Keeping, Federation Press, 1993; P. Toyne, The Reluctant Nation, ABC Books, 1994.

  21. A. Gilpin, Environment Policy in Australia, University of Queensland Press, 1980, p. 165.

  22. Commonwealth v Tasmania (1983) 46 ALR 625.

  23. Murphyores Pty Ltd v Commonwealth (1976) 136 CLR 1.

  24. Richardson v Forestry Commission (1988) 164 CLR 261.

  25. Queensland v Commonwealth (1988) 77 ALR 291.

  26. G. Bates, Environmental Law in Australia, 3rd edition, Butterworths, Sydney, 1992, p. 55.

  27. Fowler, op. cit., p. 123.

  28. Lindell, op. cit., p. 4.

  29. J. Crawford, 'The Constitution and the Environment', Sydney Law Review, vol. 13, 1991, p. 30.

  30. G.Lindell, 'Scope of the Commonwealth's Environmental Powers and Responsibilities', paper delivered to Third Australian Centre for Environmental Law Environmental Outlook Conference, Sydney, 1997; J. Crawford, 'The Constitution', in Chapter 1, T. Bonyhady, ed., Environment Protection and Legal Change, Federation Press, Sydney, 1992.

  31. Bates, op. cit., p. 55. At p. 54 Prof. Bates comments: 'It is important to note that in exercising its powers under any of these heads of power [trade and commerce, external affairs, corporations, finance and taxation, and 'people of any race], the Commonwealth is entitled to act for environmental reasons alone, even though the head of power used to justify the action may be trade and commerce, taxation, etc. The purpose of the legislation is irrelevant, even if itself outside the enumerated s. 51 powers, so long as the law actually rests on some head of power. This is true of executive as well as legislative powers.'

  32. G. Lindell, op. cit., p. 35.

  33. J. Battle, 'Environmental Law and Co-operative Federalism in the United States', 2 Environmental Planning Law Journal, vol. 2, 1985, p. 307.

  34. An overview of the processes of the Act is provided by G. Bates, op. cit., pp. 146-154. A more detailed examination of the Act is provided by D. Mossop, 'The Scope and Operation of the Environment Protection (Impact of Proposals) Act 1974 (Cth)', Environmental and Planning Law Journal, vol. 14, 1996, no. 5, p. 194.

  35. Consultation Paper, op.cit., p. 4.

  36. ibid., p. 15.

  37. ibid., p. 7.

  38. ibid., p. 10.

  39. ibid., p. 9.
  40. Export controls relating to all mineral exports except uranium and thorium bearing ores were lifted in 1997. Refer URL http://www.dpie.gov.au/resources.energy/facilitation/kit/uranium.html. Previous controls relating to the export of certain minerals were omitted by Customs (Prohibited Exports) Amendment Regulations 1997 Nos 30-33 inclusive, made on 6 March 1997. A disallowance motion was unsuccessfully moved on 29 May 1997, Hansard, p. 3954.

  41. The present triggers of Commonwealth environmental laws are largely a product of the allocation of law making power under Australia's Constitution. As there is no specific head of legislative power allocated to the Commonwealth in relation to 'the environment', it has become a matter of using other available heads of power.

  42. ibid., p. 7.

  43. S. Munchenberg, 'The Review of the Commonwealth EIA Process', Australian Environmental Law News, vol. 3, 1995, pp. 50-55.

  44. A brief account is provided by B.Carbon, '1000 Days at the Federal Environment Protection Agency', Australian Journal of Environmental Management, vol. 5, no. 1, 1998, p. 7.

  45. M.Raff, 'Ten Principles of Quality in Environmental Impact Assessment', Environmental and Planning Law Journal, vol. 14, 1997, p. 207; R. Fowler, 'Environmental Impact Assessment: What Role for the Commonwealth?-An Overview', Environmental and Planning Law Journal, vol. 13, 1996, p. 246 ; S. Gibb, 'Some Proposals for the Reform of the Environment Protection (Impact of Proposals) Act', Australian Law Journal, vol. 70, no. 7, 1996, p. 553.

  46. Bates, op. cit., 1995, pp. 179-188 provides a general survey of potential problems in the design of environmental impact assessment regimes.

  47. Part 5, 6 Airports Act 1996., s. 11A(2)(b) Civil Aviation Act 1988, r.9 Federal Airports Regulations 1992.

  48. Consultation Paper, op.cit., p. 12; for comment refer N. Davies, 'Telecommunications and Environmental Regulation', Environmental and Planning Law Journal, vol. 14, 1997, p. 385.

  49. Schedule 3, Telecommunications Act 1997; Davies, op. cit., p. 386-7; Department of Communications and the Arts fact sheet at URL: http://www.dca.gov.au/policy/fs/powers.html; Telecommunications Code of Practice 1997, Telecommunications (Low Impact Facilities) Determination 1997, Telecommunications (Environmental Impact Information) Regulations. Case law on the interaction of the 1997 Act and NSW planning law: Ashfield Council v Vodafone Pty Ltd, unreported, Land & Environment Court, No. 30162 of 1997.

  50. Consultation Paper, op.cit., pp. 13-14; L. Ogle, The Bush Lawyer: A Guide to Public Participation in Commonwealth Environmental Laws, NSW Environment Defender's Office Ltd, Sydney, 1996, pp. 19-26.

  51. G. Bates, Environmental Law in Australia, 4th edition, Butterworths, 1995, p. 147.

  52. Ogle, op. cit., p. 43. See also s. 25, Administrative Appeals Tribunal Act 1975.

  53. Consultation Paper, op.cit., p. 39.

  54. Bates, op. cit., 1995, pp. 148-9.

  55. A. Sorenson, 'Approve First-Assess Later: is Commonwealth environmental impact assessment an empty ritual?', Impact, vol. 48, 1997, p. 1.

  56. Prof. R. Fowler, Speech to Department of Parliamentary Library 'Vital Issues' seminar, 1 April 1998; Environment Defender's Office (NSW) Submission on the Consultation Paper, March 1998, Part Two, par 1.1.

  57. Consultation Paper, op.cit., pp. 8-9.

  58. s. 5(1), EPIP Act, Cl.1.1, 1.2.1(a) Administrative Procedures (EPIP).

  59. See S. O'Brien, Gunns Ltd Woodchips Export Case, Dept. of the Parliamentary Library, Current Issues Brief No. 41 of 1994/95, for a discussion of the Gunns decision.

  60. Attorney-General's Department (Cwlth), Amendments to the Administrative Procedures approved under the EPIP Act, No. 22, 1995, p. 2.

  61. Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 1998; see K. Magarey, 'Aboriginal and Torres Strait Islander Heritage Protection Bill 1998', Dept. of the Parliamentary Library, Bills Digest No. 226, 1997-98; refer also to submissions made to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, e.g. Submission No. HA38, Ms Elizabeth Evatt AC.

  62. Fowler, op. cit., 1994, p. 146.

  63. ibid.

  64. R. Fowler, 'Environmental Impact Assessment: What Role for the Commonwealth?-An Overview', Environmental and Planning Law Journal, vol. 13, 1996, p. 257.

  65. Environment Defender's Office, Submission on the Consultation Paper, March 1998, par 3.4.

  66. Prof. R. Fowler, Speech to Department of Parliamentary Library's 'Vital Issues' seminar, 1 April 1998.

  67. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

  68. Consultation Paper, op.cit., p. 22.

  69. ibid.

  70. The Exclusive Economic Zone for each sea-bordering country was accepted as being 200 miles after the Law of the Sea Convention was signed (1982). It is estimated that some 95% of marine species are now subject to the national sovereignty of sea-bordering countries. See Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, IUCN Environmental Policy and Law Paper No. 29, 1993, p. 1.

  71. Intergovernmental Agreement on the Environment, 1992, paragraph 3.5.3.

  72. ibid., Schedule 6, paragraph 2.

  73. OECD, op. cit., pp. 4-33.

  74. The United Nations Global Biodiversity Assessment estimated that the total number of species in the world is somewhere between 13 million and 14 million, although only 1.75 million have been formally identified.

  75. State of the Environment Advisory Council (eds), Australia: State of the Environment Report, 1996, an independent report to the Commonwealth Minister for the Environment, CSIRO Publishing, Melbourne, at ES-9.

  76. OECD, Environmental Performance Reviews: Australia, 1998, p. 72.

  77. ibid.

  78. The 1998-99 Budget allocated funds to address many of these issues-see note 79 below.

  79. Investing in our Natural Heritage: The Commonwealth's Environment Expenditure 1998-99, Statement by the Honourable Robert Hill, Minister for the Environment 12 May 1998, p. 36.

  80. R. Rose, Economic Aspects of Conserving Biological Diversity, Agriculture and Resources Quarterly, vol. 4, no. 3, 1992, p. 378.

  81. R. Acharya, Patenting of Biotechnology: GATT and the Erosion of the World's Biodiversity (1991) 25(6) Journal of World Trade, vol. 25, no. 6, 1991, p. 80.

  82. The World Commission on Environment and Development, Our Common Future, 1987, p. 13.

  83. H. Iltis, Serendipity in The Exploration of Biodiversity (What Good Are Weedy Tomatoes?), 1988.

  84. M. J. Plotkin, The Outlook For New Agricultural and Industrial Products From The Tropics, Biodiversity edited by E. O. Wilson, 1988, p. 106.

  85. For further discussion see M. Spry, 'Hinchinbrook Island and the Precautionary Principle in Australian Environmental Law',Dept. of the Parliamentary Library, Research Note No. 4, 1997-98.

  86. ibid.

  87. For example, J. Bradsen, 'Biodiversity Legislation: Species, Vegetation, Habitat,' Environmental and Planning Law Journal, vol. 9, 1992, p. 175; G. Meyers and S. Temby, 'Biodiversity and the Law: A Review of the Commonwealth Endangered Species Protection Act of 1992', Griffith Law Review, vol. 3, no. 1, 1994, pp. 62-63.

  88. D. Pruzin, International Environment Reporter, vol 18, no. 24, 29 November 1995, p. 897.

  89. Consultation Paper, op.cit., p. 20.

  90. For example s. 7(2) Roxby Downs Indenture Ratification Act 1982 (SA), modifies the operation of twelve laws including the Development Act 1993 and the Environment Protection Act 1993 (SA). Together, the last two Acts listed, set out the circumstances in which the production of an EIS may be required: Bates, op. cit., pp. 164-165.

  91. Commonwealth of Australia, National Strategy for the Conservation of Australia's Biological Diversity, Department of Environment, Sport, Territories, 1996, Canberra.

  92. Humane Society International and World Wide Fund for Nature Australia, From Words To Action: A Preliminary Review of Progress to Implement the National Strategy for the Conservation of Australia's Biological Diversity: Discussion Paper, May, HSI and WWF, Sydney, 1998, p. iv.

  93. Consultation Paper, op.cit., pp. 10-11.

  94. ibid., p. 26.

  95. ibid., p. 24. The operation of the Endangered Species Protection Act 1992 was recently reviewed, pursuant to the statutory review provision in s. 168 of the Act : Dr K. Boardman (1997), Review of the Endangered Species Protection Act 1992, Environment Australia, Canberra, 63pp.

  96. J. Bradsen, 'The Green Issues: Biodiversity Conservation in Australia', Chapter 9 in Gunningham et al, eds., Environmental Outlook: Law and Policy, Federation Press, 1994, p. 207. For a US perspective, see: J. C. Kunich, 'The Fallacy of Deathbed Conservation under the Endangered Species Act' Environmental Law, vol. 24, 1994, pp. 533-34.

  97. The Endangered Species Protection Regulations were amended in 1995 to allow a taxonomist with relevant expertise to sign a written statement stating that in their opinion the species is a new species to the science of taxonomy.

  98. See comments in: Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and EcosystemsIUCN Environmental Policy and Law Paper No. 29, 1993, p. 78.

  99. Consultation Paper, op.cit., p. 29.

  100. Consultation Paper, op.cit., p. 21.

  101. The House of Representatives Standing Committee on Environment, Recreation and the Arts have released two reports dealing with the issue of biodiversity. The first report Biodiversity: The Contribution of Community-based Programs was prepared in June 1992 and the second Biodiversity: The Role of Protected Areas in January 1993. The second report was released in January 1993 and focussed on 'the mechanisms required to establish a national system of ecologically representative protected areas'. After considering submissions and investigating the issue, the ERA Committee found that the protection 'of biodiversity in a conservation reserve system is generally considered to be very cost efficient....remote and undisturbed country, and large areas of wilderness, usually cost very little to manage'.

  102. Consultation Paper, op.cit., p. 22.

  103. ibid., p. 24.

  104. Convention on Wetlands of International Importance (Ramsar Convention).

  105. Consultation Paper, op.cit., p. 23.

  106. s. 13(5),(7), WHPCA; Consultation Paper, op.cit., p. 39. Under subsection 13(7) of the WHPC Act, Aboriginal persons are taken to be 'a person aggrieved' under the Act for the purposes of seeking a review under the Administrative Decisions (Judicial Review) Act 1977 of a decision by the Minister under section 11. Section 11 of the WHPC Act relates to unlawful acts on aboriginal sites. The provisions guaranteeing standing were added in 1983 to give effect 'to a liberal approach to the question of standing' to members of the Aboriginal races. The issue of the statutory protection of aboriginal heritage is currently before Parliament. For a more substantive discussion of the issues involved see K. Magarey, op. cit. The Second Reading Speech of the then Attorney-General the Hon. Gareth Evans noted that:

    In view of the purpose of clause 11, [to protect Aboriginal sites] it does not seem appropriate to extend the right [of standing] to other persons (except, of course, the Commonwealth in the person of the Attorney-General).

    (Senate, Debates, 10 May 1983, p. 317, Second Reading Speech, Senator The Hon. G. J. Evans.) Section 8 of the same Act indicates that this is a special law, presumably as contemplated by the Convention on the Elimination of All Forms of Racial Discrimination. If this is the case, then the dismantling of a special measure would generally be explained in a country's biannual report to the Committee on the Elimination of Racial Discrimination.

    On the issue of standing, the High Court observed in Onus v Alcoa of Australia Ltd (1981) 149 CLR 25 that the protection of aboriginal relics was of interest and value not only to aborigines but also to 'archaeologists and anthropologists and indeed to Australians generally'. The High Court reversed an earlier decision of the Supreme Court of Victoria which had denied standing to the aboriginals on the basis that 'their interest was entirely emotional and intellectual'.(Onus v Alcoa of Australia Ltd (1981) 149 CLR 25 at 36.) The decisions of the Supreme Court (and less so the High Court) in this case highlight the difficulties faced by aboriginal persons with having to rely upon common law rights of standing to challenge decisions.

  107. D. Farrier, The Concept of Biological Diversity, a paper prepared for the 'Biodiversity Conservation and the Law' Seminar conducted jointly by the NSW Local Government and Shires Associations and the Centre for Natural Resources Law and Policy, Sydney, 19 September 1997.

  108. Consultation Paper, op.cit., p. 30.

  109. Humane Society International and World Wide Fund for Nature Australia, From Words To Action: A Preliminary Review of Progress to Implement the National Strategy for the Conservation of Australia's Biological Diversity: Discussion Paper, May, HSI and WWF, Sydney, 1998, particularly identifies Queensland, Tasmania and the Northern Territory as having defective laws in relation to the control of vegetation clearance and its effects on threatened species: at p. 15. For discussion of the defects of Victorian legislation, see S. Edmonds, J. Giddings, 'Guaranteeing the Survival and Evolution of Endangered Species: An Analysis of the Flora and Fauna Guarantee Act (Victoria)', Environmental and Planning Law Journal vol. 9, 1992, p. 421.

  110. Consultation Paper, op.cit., p. 2.

  111. Consultation Paper, op.cit., p. 33.

  112. Consultation Paper, op.cit., p. 35.

  113. s. 23, AHC Act.

  114. s. 24(1), AHC Act.

  115. Senator the Hon. R. Hill, Speech to Australian Centre for Environmental Law, Third Outlook Conference, 9 October 1997, p. 5.

  116. s. 4(1), AHC Act.

  117. s. 4(1A), AHC Act.

  118. Australian Heritage Commission Bill 1975, Second Reading Speech, Mr T. Uren, House of Representatives, Debates, 14 May 1975, p. 2244, 'We set out to list the great assets of our heritage'.

  119. s. 23, AHC Act.

  120. s. 23, AHC Act.

  121. s. 24, AHC Act.

  122. Bates, 4th ed., 1995, op. cit., p. 347.

    (1995) 128 ALR 509, appealed to High Court in AHC v MIM (1997) 187 CLR 297, (1997) 142 ALR 622; reported in Lane (1997), 'Heritage body wins control of register', The Australian, 19 March 1997, p. 4.

  123. s. 25(3) AHC Act.

  124. Bates, 4th ed., 1995, op. cit., p. 152 states that only four inquiries have occurred.

  125. Consultation Paper, op.cit., p. 35.

  126. Environment Defender's Office (NSW), Submission on the Commonwealth's Consultation Paper for Reform of Commonwealth Environmental Laws, 1998, Part 5, Section 2.

  127. Australian Conservation Foundation, 'Regional Forest Agreement Comes Unstuck', Habitat Australia, vol. 25, no. 4, 1997, p. 7.

  128. ibid., p. 6.

  129. J. Tribe, 'The Law of the Jungles: Regional Forest Agreements', Environmental and Planning Law Journal, vol. 15, no. 2, 1998, p. 143.

  130. ibid.

  131. This would be based on an argument relating to the administrative law ground of 'inflexible application of policy' arising from alleged unlawfulness of promises made in the Tasmanian RFA by the Commonwealth not to apply its environmental laws. Such an argument would be based on authorities such as Corkill v Hope (1991) 74 LGRA 33; applying Rendell v Release on Licence Board (1987) 10 NSWLR 499, Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 at 189-90.

  132. Department of Prime Minister and Cabinet, Forests Task Force (1997) Commonwealth Legislation to Complement Regional Forest Agreements, 19 December 97. The document states elsewhere (p. 4) that the environment protection legislation will be affected or curtailed 'as far as they relate to forestry operations on land which, under the RFA, may be used for such operations. It should be noted that this measure will only apply to such forestry operations and not to other proposed activities within an RFA area'.

  133. The gazettal of the Export Control (Regional Forest Agreements) Regulations 1997 has fundamentally restricted the scope of application of the export control regime. Regulation 2 of the 1997 Regulations states that 'While a Regional Forest Agreement is in force for a region hardwood wood chips derived from the region are not prescribed goods'.

  134. The definitions of 'Regional Forest Agreement' and 'region' are to be found in the Export Control (Hardwood Wood Chips) Regulations 1996.

  135. PM&C Forests Taskforce, op. cit., p. 3. The application of the Export Control Act 1982 is the means by which the Commonwealth has achieved leverage for the regulation of forestry operations in native forests for export woodchipping in the past. Regulations under the Act may prohibit the export of 'prescribed goods', i.e. goods prescribed by regulation. s. 7, 8 Export Control Act 1982 (Cwlth). As the export of prescribed goods subject to a licence is permitted, the regime seeks to control export woodchipping by means of licensing and conditions attached to those licences. s. 9 Export Control Act 1982 (Cwlth).

  136. Commonwealth of Australia (1995), Regional Forest Agreements: The Commonwealth Position, February, at 7. In relation to financial assistance triggering the EPIP Act see s. 5(e), EPIP Act, and Tasmanian RFA, at 33, cl 100-101. Bates, 4th ed., 1995, op. cit., p. 146 provides a useful commentary on the triggering mechanisms of the EPIP Act.

  137. N. Hordern, 'New law over the land', Australian Financial Review, 6 May 1998, p. 16.

  138. Senator the Hon. R. Hill, Senate, Debates, 10 March 1998, Answer to Question without Notice.

Appendix : Matters of National Environmental Significance

The COAG Heads of Agreement on Commonwealth-State Roles and Responsibilities for the Environment contained the following classification of issues, according to their perceived significance. All the matters listed in Part 1 of Attachment 1 to the Agreement are considered matters that trigger Commonwealth involvement. All matters listed in Part 2 are considered matters of national significance, but are not to be matters which trigger the operation of Commonwealth legislation.

Matters triggering Commonwealth involvement (Part 1 of Attachment 1)

  • World Heritage properties
  • Ramsar listed wetlands
  • places of national significance
  • nationally endangered or vulnerable species and communities
  • migratory species and cetaceans
  • nuclear activities
  • management and protection of the marine and coastal environment

Non trigger matters of national significance

  • reducing emissions of greenhouse gases and protecting and enhancing greenhouse sinks
  • regulation of ozone depleting substances
  • conservation of biological diversity
  • protection and management of forests
  • genetically modified organisms which may have an adverse effect on the environment
  • agricultural, veterinary and industrial chemicals
  • matters requiring national environment protection measures
  • management of hazardous wastes relating to Commonwealth obligations arising from the Basel Convention
  • access to biological resources
  • international trade in wildlife arising from obligations under the CITES
  • development and maintenance of national environmental and heritage data sets arising from intergovernmental arrangements and international obligations
  • applying uniform national emission standards to motor vehicles
  • policies and practices of a State resulting in potentially significant adverse external effects in relation to the environment of another State, where the States involved cannot resolve the problem
  • national interest environmental matters as covered by the Telecommunications Act 1997
  • quarantine matters
  • aviation airspace management including assessment of aircraft noise and emissions
  • Natural Heritage Trust Programmes
  • implementation of the National Strategy for ESD
  • nationally significant feral animals and weeds
  • conservation of native vegetation and fauna
  • prevention of land and water degradation
  • matters that are from time to time agreed by the Commonwealth and the States as being matters of national environmental significance
  • 'The Commonwealth also has a responsibility and an interest in relation to proposals on Commonwealth lands and waters and proposals which are beyond the jurisdiction of States and Territories (e.g. foreign aid proposals).'

 

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