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Reforming Commonwealth Environmental Laws?
James Prest
Law & Bills Digest Group
26 May 1998
The Government has announced plans for the most far-reaching changes
to Federal environmental laws in twenty years. This action follows a review
which sought to determine the most appropriate role for the Commonwealth
in environmental matters.
In February 1998, the Environment Minister, Senator Hill, released a
consultation paper ('the paper'), entitled Reform of Commonwealth Environment
Legislation. It proposed that three new Acts will replace seven of
the present environmental laws. Proposed are an Environmental Protection
Act, a Biodiversity Conservation Act, and a new Heritage Protection Act.
The paper states that the Commonwealth intends to 'develop a contemporary
regime which reflects world's best practice.' Such a regime would involve
'efficient' discharge of Commonwealth responsibilities, as present laws
are said to have failed to deliver certainty for proponents, and involve
too much potential for unnecessary delay or duplication.
The government has declared that it intends to confine the Commonwealth's
role to matters of 'national environmental significance'. It has stated
that under existing legislation the Commonwealth is too often involved
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.
Context
The present trend towards the devolution of Commonwealth involvement
in environmental regulation to the States must be examined in context.
Behind the present debate lies a difference of views over the appropriate
role for the Commonwealth in environmental regulation. This is not a new
debate. 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 previous disputes over the management
of particular natural places, which have often ended up in court. Major
Commonwealth-State conflict arose during the 1970s and 1980s over matters
including proposals for oil drilling on the Great Barrier Reef, and the
damming of the Franklin River. Other disputes arose over the continuation
of sand mining (and, later, logging) on Fraser Island, and the logging
of forests in Southern Tasmania and North Queensland.
Aspects of the present proposals amplify policy trends commenced under
the previous government. Starting in 1992, a policy of 'cooperative federalism'
on the environment was adopted. In the Inter-governmental Agreement on
the Environment (IGAE), the practice of accrediting State regimes was
endorsed.
Heads of Agreement of November 1997
The Consultation Paper is the public face of behind the scenes Commonwealth/State
negotiations. These resulted in an 'in principle' agreement to a 'Heads
of Agreement' document in November 1997. The Consultation Paper should
be read in conjunction with it. The main points of the Heads of Agreement
were:
- Intergovernmental 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'.
- Seven items of 30 will be triggers for Commonwealth involvement, whilst
23 remaining 'matters of national significance' will not.
- The Commonwealth will only add items to the list of matters of national
significance upon consultation with the States.
- Project approval is to be streamlined to rely on accredited State
processes.
- The changes are to have no impact on Regional Forest Agreements (RFAs).
Proposed Environment Protection Act
The package 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).
The Paper says the Commonwealth will 'maximise reliance upon State processes
which meet appropriate standards' by means of bilateral agreements accrediting
State environmental impact assessment regimes. Also proposed is the use
of case-by-case assessment of specific projects.
Rationale for changes
The Paper claims that existing legal mechanisms which trigger the operation
of the EPIP Act are 'illogical...indirect and ad hoc'. These triggers
include foreign investment, export controls and funding decisions. The
paper proposes that these be deleted, and replaced with 'matter of national
significance' triggers.
The Paper states that the new Act will deliver 'a significantly more
efficient assessment and approval process which increases certainty for
proponents and eliminates unnecessary duplication.'
Criticisms
Some critics have questioned the choice of the term 'matter of national
significance' and the assumptions underlying such terminology. They hold
that it is inaccurate to suggest, as the Review Paper does, that the present
triggers do not take into account the significance of projected environmental
impacts. At present under the EPIP Act, Commonwealth involvement
is only triggered where there are likely to be significant effects on
the environment.
It is unclear whether the new law will rectify many of the defects of
the existing Act. One often cited is the breadth of Ministerial discretion
not to 'designate' proponents, thereby avoiding invoking the Act.
Others have questioned the use of 'accredited State processes' on the
basis that sufficient standards and safeguards must be built into the
accreditation process; the only substantial sanction available in the
event of major non-compliance would be cancellation of accreditation.
Professor Robert Fowler of the University of Adelaide recently made the
following comments about the proposed accreditation regime:
'It is capable of manipulation and capable of being abused. 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
of that process.'
Proposed Biodiversity Conservation Act
The Paper proposes a Biodiversity Conservation Act to replace the National
Parks and Wildlife Conservation Act 1975, the Endangered Species
Protection Act 1992, the World Heritage Properties Conservation
Act 1983, the Wildlife Protection (Regulation of Exports and Imports)
Act 1982, the Whale Protection Act 1980.
The details of this proposal will be discussed in a later Research Note.
Proposed Heritage changes
Also included in the package is a proposal for the repeal of the Australian
Heritage Commission Act 1975 (the AHC Act). The proposals will transfer
decision making directly to the Minister who will be required to apply
'rigorous criteria and high thresholds' to the task of listing nationally
significant places. The new provisions will include mechanisms to maximise
reliance on accredited State heritage procedures. Section 30 of the AHC
Act will no longer apply to national estate places in States with an accredited
heritage regime. This proposal forms part of a wider cooperative National
Heritage Places Strategy with the States.
The paper does not provide details of the proposed role of the AHC or
the Register of National Estate.
Conclusion
At this stage many of the details of the environmental law package are
unclear. Just as views today diverge over the adequacy of the current
environmental law regime, there will doubtless be a divergence over the
new package. Judgment of the package's adequacy will depend fundamentally
on one's view about the appropriate role for the Commonwealth in matters
of environmental regulation.
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