Bills Digest No. 135  1998-99 Environment Protection and Biodiversity Conservation Bill 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Environment Protection and Biodiversity Conservation Bill 1998

Date Introduced: 12 November 1998

House: Senate

Portfolio: Environment and Heritage

Commencement: On a day to be fixed by Proclamation or on the first day after 6 months from Royal Assent has elapsed, whichever is the earlier.

Purpose

This Bill implements a national scheme of environmental protection and biodiversity conservation and contains provisions in relation to:

  • Commonwealth involvement and responsibility through identification of matters of national environmental significance
  • environmental assessment and approval processes relating to the Commonwealth marine area, World Heritage properties, certain Ramsar wetlands, threatened species and ecological communities, certain migratory species, environmentally significant nuclear actions and certain actions by the Commonwealth and its agencies
  • accreditation of State and Territory environment assessment and approval processes
  • conservation and sustainable use of Australia's biodiversity, and
  • establishment of the Australian Whale Sanctuary.

The Bill will also replace the Endangered Species Protection Act 1992, Environment Protection (Impact of Proposals) Act 1974, National Parks and Wildlife Conservation Act 1975, Whale Protection Act 1980 and the World Heritage Properties Conservation Act 1983.

Background

This Bill was initially introduced in the Senate in an identical form on 2 July 1998. Senate debate did not proceed past the Minister's second reading speech before the 38th Parliament was prorogued.

On 8 July 1998, the Minister for the Environment referred the original Bill to the Senate Environment, Recreation, Communications and the Arts Legislation Committee for inquiry and report on 7 October 1998. On 12 November 1998, the Government moved that the current Bill be referred to substantially the same Committee(1) with a reporting date of the first sitting day of the second sitting week in March 1999. On 11 March 1999, Senator Bolkus successfully moved a motion that, in order to address the Bill's complexity and the concerns raised during the Committee's hearings, the Committee's reporting date be extended to 27 April 1999.

Bill's Digest No. 8 1998-99 by Susan Downing was produced following introduction of the original Bill in July 1998. This Digest expands on that document.

Introduction

This legislation represents perhaps the most far-reaching changes to Commonwealth environmental law in twenty-five years. The policy basis for this Bill is to be found in the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment endorsed by the Council of Australian Governments (COAG) in November 1997 (the COAG Agreement).(2) The subsequent consultation paper 'Reform of Commonwealth Environment Legislation', issued by Senator the Hon. Robert Hill, Minister for the Environment, outlined much of the content of this Bill.(3)

The Government has criticised the existing Commonwealth environmental laws on the basis that they:

  • do not ensure high environmental standards in the areas of Commonwealth responsibility
  • do not provide the community with certainty as to the Commonwealth's role
  • do not provide an efficient and timely assessment and approval process, and
  • rely on ad hoc and indirect triggers such as foreign investment approval and Commonwealth funding decisions.(4)

Constitutional matters

Under the Australian Constitution, the Commonwealth has no express head of legislative power over the environment. The 'protection, management, or regulation of the environment as a whole were not concerns of the framers of the Constitution, and the environment as a concept was not considered in the allocation of power'.(5) There are, however, a number of powers available to the Commonwealth to enact laws concerning the environment. These are the:

  • trade and commerce power (section 51(i))
  • taxation power (section 51(ii))
  • powers over quarantine (section 51(ix))
  • powers to control fisheries beyond territorial limits (section 51(x))
  • corporations power (section 51(xx))
  • power to make laws for 'the people of any race' (section 51(xxvi)).
  • external affairs power (section 51(xxix))
  • power to make financial grants to the States (section 96), and
  • Territories power (section 122).

In the past, the corporations power, the trade and commerce power and the external affairs power have been the most heavily used by the Commonwealth to enact laws with respect to the environment. This Bill continues the reliance on these constitutional powers.

Relevant international agreements

Australia is a party to a number of multilateral, regional and bilateral agreements relating to the environment, conservation and heritage which the Government intends to implement in full, or in part, through this Bill. These include the following multilateral agreements:

  • International Convention for the Regulation of Whaling 1946
  • Convention on Wetlands of International Importance Especially as Waterfowl Habitat 1971 (Ramsar Convention)
  • Convention for the Protection of the World Cultural and Natural Heritage 1972
  • Convention on the Conservation of Migratory Species of Wild Animals 1979 (Bonn Convention)
  • Convention on Biological Diversity 1992

and the following bilateral agreements:

  • China Australia Migratory Birds Agreement 1974 (CAMBA)
  • Torres Strait Treaty 1975, and
  • Japan Australia Migratory Birds Agreement 1986 (JAMBA).

In addition, if regulations are put in place under subclause 520(3) of the Bill, aspects of the following regional agreements could be partly implemented:

  • Convention for the Protection of the Natural Resources and the Environment of the South Pacific Region 1986, and
  • Convention on Conservation of Nature in the South Pacific 1986.

The proposed reform of environmental legislation

The first major review of Commonwealth environment legislation was carried out twenty years ago by the House of Representatives Standing Committee on Environment and Conservation in its inquiry into Environmental Protection-Adequacy of Legislative and Administrative Arrangements.(6) Reports were produced in 1979 and 1981 on the four pieces of major environmental legislation passed by the Commonwealth Parliament: Environment Protection (Impact of Proposals) Act 1974, Australian Heritage Commission Act 1975, National Parks and Wildlife Conservation Act 1975 and the Great Barrier Reef Marine Park Act 1975. Since this inquiry there have been numerous reviews of Commonwealth environment and conservation legislation by the Commonwealth Government and the Commonwealth Parliament. In a 1989 review of the Australian National Parks and Wildlife Service, the MacDonald Report recommended a single nature conservation Act.(7)

Intergovernmental Agreement on the Environment 1992

The Special Premiers' Conference of October 1990 agreed to develop and conclude an Intergovernmental Agreement on the Environment (IGAE) to facilitate:

  • a cooperative national approach to the environment
  • a better definition of the roles of the respective governments
  • a reduction in the number of disputes between the Commonwealth and the States and Territories on environmental matters
  • greater certainty of Government and business decision making, and
  • better environment protection.(8)

On 25 February 1992 the Commonwealth, States and Territories signed the IGAE. The roles and responsibilities of the levels of Government were outlined in the Agreement and in the following nine schedules, which dealt with:

  • Data Collection and Handling
  • Resource Assessment, Land Use Decisions and Approval Processes
  • Environmental Impact Assessment
  • National Environment Protection Measures
  • Climate Change
  • Biological Diversity
  • National Estate
  • World Heritage, and
  • Nature Conservation.(9)

Subsequent to the acceptance of the IGAE, the Commonwealth carried out an extensive review of the Environment Protection (Impact of Proposals) Act 1974 over the 1993-1995 period. More recently the Endangered Species Protection Act 1992 has been the subject of a review.(10)

Council of Australian Governments

The Minister for the Environment, Senator the Hon. Robert Hill, outlined the Government's proposals regarding review of Commonwealth/State roles and responsibilities for the environment in a speech in October 1996. He stated that the IGAE had not been effectively implemented and that the environment was being placed back on the Council of Australian Governments (COAG) agenda. The object of this review by the Commonwealth, States and local government was to produce a clear definition of the respective roles of government in relation to the environment and to address matters such as accreditation, devolution of programs and the triggering of processes.(11) Senator Hill said:

I want to get the Commonwealth out of direct involvement in issues that are really of only state or local significance. But in return I want the Commonwealth's leadership role to be properly accepted and implemented...There is no value in the Commonwealth merely duplicating State process. I am quite comfortable with the notion of placing greater emphasis on accreditation, so long as there is a high level of accountability...I am willing to consider the devolution of some of our programs as long as all the appropriate checks and balances can be put into place.(12)

During the COAG negotiations that followed, the Commonwealth position was that its role should focus on issues of national environmental significance but that at the present time it 'does not have the appropriate legislative or administrative capacity to adequately give effect to its role in relation to such matters'.(13) Senator Hill explained that:

Commonwealth legislation...is triggered in an ad hoc way by events which are not related to environmental significance - such as export controls or foreign investment decisions. To give you an example, Commonwealth assessment processes are triggered in relation to the development of a mine for which foreign investment approval is needed even if the mine raises environmental issues of only local significance. In my view, this should not occur.

...the Commonwealth is suggesting that it step back from areas of local or State significance but consolidate its involvement in matters of national environmental significance...The Commonwealth would be involved in fewer projects and matters. However, the quality of its involvement in matters of national environmental significance would be greater.(14)

The Council of Australian and New Zealand environment and conservation ministers, Australian and New Zealand Environment and Conservation Council (ANZECC), was to have considered a report on the COAG Review at its July 1997 meeting but this consideration was delayed. The Environment Ministers discussed the report during October 1997. On 7 November 1997 a COAG meeting gave in-principle endorsement to the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment (COAG Agreement). The preamble of the COAG Agreement stated that the implementation of the COAG Agreement should not be delayed by the formal process of amending the IGAE and COAG agreed 'that governments will seek to finalise the details of the Heads of Agreement with a view to signing within two weeks'.(15) This has not eventuated and to date there are three Governments which have yet to sign.(16) The COAG Agreement has not yet been released publicly by the Government and was developed with limited public consultation. Nonetheless, the Government intends to implement the COAG Agreement with this Bill. To proceed with this type of legislation that requires close Commonwealth-State cooperation without the full support of all States and Territories may present problems.

Under the COAG Agreement the parties agreed on the need for reform in:

  • matters of national environmental significance
  • environmental assessment and approval processes
  • listing, protection and management of heritage places
  • compliance by the Commonwealth with State environmental and planning legislation, and
  • better delivery of national environmental programs.(17)

The Commonwealth, States and Territories agreed that the Commonwealth's involvement in environmental matters should include 30 identified matters of national environmental significance. While this Bill consolidates several pieces of environmental legislation it does not address all 30 matters. Climate change and greenhouse gases, ozone depletion, air quality, soil salinity, desertification, inland water pollution by chemicals and/or sewerage, quarantine issues, water allocation issues, land degradation, land clearing and forest management are not directly addressed in the Bill.

The Bill implements certain aspects of the COAG Agreement (and its three attachments). The following points agreed to by the Commonwealth, States and Territories are included in this legislation.

  • The Commonwealth's environmental and approval processes will only be triggered by proposals that may have a significant impact on the seven matters of national environmental significance listed in Part 1 of Attachment 1 (detailed below).
  • The environmental assessment and approval process should: rely on State processes as the preferred means of assessing proposals; limit Commonwealth decisions to those aspects of proposals concerning the Part 1 matters of national environmental significance; and provide for the development of Commonwealth/State bilateral agreements to accredit State processes and, as appropriate, State decisions, the framework of which is outlined in Attachment 2.
  • There will be increased compliance of Commonwealth departments, statutory authorities, business enterprises and tenants with relevant State environment and planning laws as set out in Attachment 3.

Nothing in the COAG Agreement will affect any arrangement entered into as part of a Regional Forest Agreement.

Matters of national environmental significance

There are seven matters of national environmental significance listed in Part 1 of Attachment 1 to the COAG Agreement which should act as triggers for the Commonwealth's environmental assessment and approval processes:

  • World Heritage properties
  • Ramsar listed wetlands
  • places of national significance
  • nationally endangered or vulnerable species and communities
  • migratory species and cetaceans (whales, dolphins and porpoises)
  • nuclear activities, and
  • management of the marine and coastal environment(18) (although presumably not coastal waters under State jurisdiction).

The COAG Agreement limited Commonwealth decisions to 'only those aspects of proposals concerning matters of national environmental significance'.(19) Therefore, the Commonwealth is prohibited from assessing the impact of an entire proposal on the environment. The limitations of this model are further discussed in the Concluding Comments.

The COAG Agreement outlined 'environmental approval processes', preferring bilateral agreements to replace case by case assessment and approval processes where possible. Where proposals are not subject to a bilateral agreement, such processes should be streamlined to 'achieve more certain, timely and open decision making'.(20) The Agreement laid down the general content of bilateral agreements that included the codification of decision making criteria and provided for delegation or recognition of decision making. The Commonwealth agreed that its legislation, necessary to implement the Agreement, would provide a framework for the recognition and implementation of bilateral agreements.

There was disagreement on how the places of national heritage significance trigger will operate and it was decided that this would be resolved out of session. An outcome of the COAG Review was an agreement to rationalise existing Commonwealth/State arrangements for the identification, protection and management of places of heritage significance which would be progressed through the development of a National Heritage Strategy.(21) Since the Commonwealth will not be enacting Commonwealth heritage legislation until the Strategy is finalised, the places of national significance category has not been included as a trigger in the Bill.(22)

Consultation Paper

In February 1998 Senator Hill issued a Consultation Paper on the reform of Commonwealth environment legislation.(23) The Consultation Paper proposed that the reform be implemented by 2 separate Bills. However, incorporating the provisions in a single Bill was later considered by the Government to have advantages 'in terms of administrative convenience and because of the links between environment protection and biodiversity conservation'. The Consultation Paper also included the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (WP(REI) Act) in the proposed environmental law reform but that Act has not been addressed in the Bill.(24) The Consultation Paper is discussed in a Department of the Parliamentary Library Research Paper by James Prest and Susan Downing.(25)

Financial impact statement

According to the Explanatory Memorandum, the Bill 'will not cost the Commonwealth more than the existing legislative arrangements which it will replace'.(26) This is open to debate as the Bill will set in place a series of Commonwealth-State regulatory mechanisms, in the form of bilateral agreements. These may require Commonwealth legislation, such as the legislation supporting the regional forest agreements, as well as complementary State legislation. The cost of this process has not been made available.

A submission by industry groups to the Senate inquiry has stated that if the Explanatory Memorandum is true 'the Bill will be inadequately resourced, and therefore unlikely to be satisfactorily undertaken'.(27)

Major legislation consolidated in this Bill

In the Second Reading Speech for the Bill, Senator Hill noted that the Bill implements the COAG Agreement and provides:

[a] framework for a more effective national approach to environmental management, ensuring resources are focussed on delivering better environmental outcomes at all levels of government. The Commonwealth's role in this national approach will, for the first time, be clearly and logically defined.(28)

This Bill repeals and replaces the following five Acts: Environment Protection (Impact of Proposals) Act 1974; National Parks and Wildlife Conservation Act 1975; Whale Protection Act 1980; World Heritage Properties Conservation Act 1983; and Endangered Species Protection Act 1992. A brief description of these Acts is provided.

In addition, the following Commonwealth environmental laws, not changed by this Bill, are also currently being reviewed: Australian Heritage Commission Act 1975; Great Barrier Reef Marine Park Act 1975; and Wildlife Protection (Regulation of Exports and Imports) Act 1982.

Environment Protection (Impact of Proposals) Act 1974

The Environment Protection (Impact of Proposals) Act 1974 ensures that significant environmental matters are considered in relation to actions, proposals and decisions taken by or on behalf of the Federal Government and its agencies. The Act is administered chiefly under Administrative Procedures originally promulgated in 1975 and revised in 1987. The Act makes specific provision for public consultation, the level of which is determined by the Minister. The assessment process can only be triggered if the Action Minister (which is often not the Environment Minister) decides that such actions, proposals or decisions which he/she is responsible for will have a significant impact on the environment. The procedures by which a proposal is deemed to be significant enough to invoke the assessment process, the method of assessment of that proposal (Public Environment Report, Environmental Impact Statement and Inquiry), public consultation processes and duties of the Environment Minister following assessment are outlined in the Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974.

National Parks and Wildlife Conservation Act 1975

The National Parks and Wildlife Conservation Act 1975 provides for the protection and management of the natural and cultural features of declared parks and reserves and also for the protection of designated wildlife species (including species protected under international treaties) in specific areas of Commonwealth responsibility outside parks and reserves. The Act is the legislative basis for wildlife conservation programs, not only in areas of direct Commonwealth responsibility, including external Territories and Commonwealth waters, but also cooperatively with the States and mainland Territories and with other countries. The Director of National Parks and Wildlife is responsible for the declaration and management of parks and reserves on land owned or leased by the Commonwealth, in Commonwealth waters, and on certain areas of Aboriginal land leased to the Director.

Whale Protection Act 1980

The Whale Protection Act 1980 implements a policy of complete protection for all cetaceans (whales, dolphins and porpoises). The Act prohibits, without a permit, the killing, injuring or taking of, or interfering with, any cetaceans in Commonwealth waters. It also prohibits such actions by Australian citizens and vessels worldwide.

World Heritage Properties Conservation Act 1983

The World Heritage Properties Conservation Act 1983 permits the Commonwealth to intervene to protect World Heritage properties from specific threats or actions. The legislation was originally enacted in response to a specific threat to a World Heritage property, the construction of the Gordon-below-Franklin Dam in SouthWest Tasmania. It does not provide a general framework for the management of World Heritage areas and it is not the only Commonwealth legislation that applies to World Heritage properties.

Endangered Species Protection Act 1992

The Endangered Species Protection Act 1992 directly protects endangered and vulnerable species and endangered ecological communities on Commonwealth land and in Commonwealth waters. Some other land and water areas identified in approved recovery plans may be indirectly affected. The Act aims: to promote the recovery of species and ecological communities that are endangered and vulnerable; prevent other species and ecological communities from becoming endangered; and reduce conflict in land management through readily understood mechanisms relating to the conservation of species and ecological communities that are endangered or vulnerable. It also provides for public involvement in the conservation of such species and ecological communities and encourages cooperative management for the conservation of such species and ecological communities.

Major changes to existing legislation

Environment protection

The following are significant changes to present legislation.

  • The Minister for the Environment decides whether the assessment process will be invoked, rather than the Action Minister, as is the case with the Environmental Protection (Impact of Proposals) Act 1974.
  • The Minister for the Environment, rather than the Action Minister, makes the decision whether a project can proceed.
  • Six of the seven matters of national environmental significance identified by the COAG Agreement are direct triggers that invoke the legislation. In addition, actions on Commonwealth land and proposals by the Commonwealth and Commonwealth agencies also invoke the legislation. By contrast, the Environmental Protection (Impact of Proposals) Act 1974 could be triggered both indirectly and directly by Commonwealth Government agencies' decisions (for example the issue of export licences or decisions by the Foreign Investment Review Board) and by specific Commonwealth proposals (for example a proposal by the Department of Defence to develop Bradshaw Station in the Northern Territory as a field training area). Such changes could mean that there will be fewer proposals being assessed under this legislation than under the Environmental Protection (Impact of Proposals) Act 1974.
  • Where the direct triggers are invoked, the Minister may only consider those parts of a proposal which impact on the relevant trigger, for example a World Heritage property, and is specifically prevented from considering the environmental impact of the entire proposal, as is the case under the Environmental Protection (Impact of Proposals) Act 1974.
  • The Administrative Procedures of the Environmental Protection (Impact of Proposals) Act 1974 relating to Ministerial decision-making, assessment procedures and public consultation are modified and included as provisions of the Bill.
  • The Minister is to take into consideration a person's history in relation to environmental matters before deciding to grant an approval under the legislation.
  • Approval is not needed for forestry operations permitted by Regional Forest Agreements (RFAs) except in relation to World Heritage and Ramsar sites.
  • Assessment under this legislation is not needed for proposals or activities carried out in the Great Barrier Reef Marine Park where a permit has been granted by the Great Barrier Reef Marine Park Authority.
  • The Minister can enter into bilateral agreements and conservation agreements and make declarations in regard to a class of actions whereby proposals covered by such agreements or declarations may not need to be assessed and/or approved under this legislation.
  • Proposals significantly affecting World Heritage areas, and which are covered by bilateral agreements or management plans, may be exempted from the need for assessment and /or approval by the Commonwealth.
  • Commonwealth Government agencies will have to improve their own compliance with relevant State or Territory environmental legislation.
  • The Minister is able to require an environmental audit to be carried out if he/she believes or suspects that an authority holder is likely to contravene a condition of the authority.
  • There is a specific requirement for the Minister to consider the precautionary principle when making decisions under 14 different clauses of the legislation.

Biodiversity conservation

The following are significant changes to present legislation.

  • Penalties for offences involving whales, dolphins and porpoises are increased compared to the Whale Protection Act 1980 and the wild capture of whales, dolphins and porpoises for display is prohibited.
  • Declaration of the Australian Whale Sanctuary.
  • Substantial changes to management of World Heritage properties such as the increased role for bilateral and conservation agreements.
  • The Commonwealth must prepare and implement management plans for World Heritage areas and Ramsar wetlands in Commonwealth areas. It is, however, only obliged to use its best endeavours to ensure that management plans for such sites in the States or Territories are prepared and implemented in cooperation with State or Territory Governments.
  • Regulations may be made for the control of access to biological resources in Commonwealth lands and waters.
  • Permits will be required to take a migratory species listed under the Bonn Convention, JAMBA and CAMBA or a listed marine species when it is found in a Commonwealth area.
  • International agreements such as the Ramsar Convention are legislated for and there is optional regulation for certain regional and bilateral agreements.
  • Significant changes are made to the protection and management of some Commonwealth parks and reserves (for example Kakadu and Uluru-Kata Tjuta National Park). For example, pursuant to the proposed repeal of the National Parks and Wildlife Conservation Act 1975 by the Environment Reform (Consequential Provisions) Bill 1998, the statutory position of Director of National Parks and Wildlife will be abolished and replaced with a Departmental Secretary.
  • The Minister can enter into conservation agreements with private individuals or corporations for the protection and conservation of biodiversity on private land. These cannot be used to protect World Heritage sites, Ramsar sites or other matters of national environmental significance.
  • Plans of management for biosphere reserves are permitted.

Main Provisions

The Bill is divided into the following 8 chapters.

  • Preliminary issues
  • Protecting the environment (the matters of national environmental significance)
  • Bilateral agreements
  • Environmental assessments and approvals
  • Conservation of biodiversity
  • Administration
  • Miscellaneous, and
  • Definitions.

Given the detailed nature of the Bill, commentary that might ordinarily appear in the Concluding Comments has been included in the following discussion of the main provisions.

Chapter 1-Preliminary

Clause 3 of the Bill sets out the objects of the proposed legislation. The emphasis is on the protection of those aspects of the environment that are 'matters of national environmental significance'. Although the term 'national environmental significance' is not defined, it inferentially refers to those matters listed in Part 3.

The Bill also aims to promote:

  • ecologically sustainable development
  • the conservation of biodiversity
  • a co-operative approach to the protection and management of the environment between governments, the community and land-holders
  • the implementation of Australia's international environment responsibilities.

The second part of the clause details that these aims are to be achieved by:

  • recognising that the Commonwealth should focus on matters of national environmental significance
  • intergovernmental co-operation, which is to be achieved via the accreditation of State and Territory processes and/or bilateral agreements.
  • efficient and timely Commonwealth environmental assessment and approval processes for activities that are likely to have significant impact on the environment (significant impact is not defined in the Bill)
  • enhancing Australia's capacity to ensure the conservation of its biodiversity.

Crown exempt from prosecution

Clause 4 binds the Crown in each of its capacities but exempts the Crown from prosecution for any offence under the proposed legislation. This is an important clause given that significant impacts on the environment arise from decisions and activities undertaken by Government.

Act subject to international obligations

Clause 6 provides that the Act 'has effect subject to Australia's obligations under any agreement between Australia and one or more other countries.' The intent behind, and scope of, this provision is unclear. The phrase 'subject to' may mean that a decision-maker must take into account Australia's international obligations when deciding a matter. Alternatively, given that the phrase 'subject to' can mean conditional upon, this provision may generate a mandatory obligation for decisions to be aligned with Australia's international obligations. If the latter is the case, then presumably a decision not subject to Australia's international obligations would be void following judicial review of the matter.

Significantly, the provision is not limited to international environment obligations and therefore would include obligations relating to international trade agreements, such as foreign investment and intellectual property rights. In order to contain the scope of this provision, it may be advisable to limit its operation to international environmental agreements.

Relationship with State/Territory laws

Clause 10 provides that the Act is not intended to exclude or limit the concurrent operation of any State or Territory law except so far as the contrary intention appears.

This clause relates to section 109 of the Constitution which provides that any State law that is inconsistent with a Commonwealth law is invalid to the extent of its inconsistency. The operation of section 109 is complex: it can be understood both as a mechanism to provide for the supremacy of Commonwealth laws over conflicting State and Territory laws and as a mechanism directed at adjusting the competing claims of Commonwealth and State legislatures.(29) Although the High Court has stated that it is permissible for a Commonwealth law to express its intention not to cover the field of a particular area(30) (for example environmental regulation), this expression of intent is only operable as long as the relevant State (or Territory) laws in fact do not conflict with the Commonwealth law. Such legislative intent by the Commonwealth will not operate to validate an inconsistent State law. Therefore, it would seem that this provision operates as an interpretative guide only.

Definition of action

Although this is contained in the miscellaneous chapter, given that the Bill is structured around the taking of an 'action', it is useful to clarify the meaning of 'action' up front.

Clause 523 provides that action includes a project, development, undertaking, activity or series of activities, or an alteration to any of these. Actions that were lawful prior to the commencement of the Act are not caught by the definition unless they are enlarged, expanded or if they amount to an intensification of use.

Clause 524 is significant, as it defines what are not actions for the purpose of the Bill. Decisions by a government body (generally the Commonwealth/Commonwealth agency, a State/self-governing Territory or relevant agency) to grant a governmental authorisation (however defined) to another person to take an action, are not actions.

This is in contrast to the current legal regime where, under the Environment Protection (Impact of Proposals) Act 1974, significant environmental matters are considered in relation to all actions, proposals and decisions taken by or on behalf of the Federal Government and its agencies.

Clause 524(3) clarifies this definition by listing a range of legislation for which decisions do not constitute actions, including customs, exports and foreign acquisition laws. Decisions under these laws are currently key triggers for assessment of Commonwealth actions under the Environment Protection (Impact of Proposals) Act 1974. The Bill therefore narrows the scope for environmental scrutiny of a range of Commonwealth decisions.

Chapter 2-Protecting the environment

Chapter 2 sets out the matters of national environmental significance which trigger the Commonwealth's responsibility under the Bill. It provides a basis for the Minister to decide whether an action should proceed if it has, will have or is likely to have a significant impact on one of these matters. It does so by prohibiting the taking of an action without an approval, unless the action is permitted by a range of other processes (such as a bilateral agreement, a declaration by the Minister or a conservation agreement).

Part 3, Division 1-Requirements relating to matters of national environmental significance

Subdivision A-World Heritage

Clause 12 provides that actions which have, or are likely to have, a significant impact on the world heritage values of a declared World Heritage listed property attract a civil penalty (for an individual 5,000 penalty units or $550,000 and for a body corporate 50,000 penalty units or $5,500,000).

However, subclause 12(2) provides that this prohibition does not apply if: the action has an approval granted under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Clause 14 permits the Minister to declare a specified property to be a declared World Heritage property. This represents a departure from the existing procedure under the World Heritage Properties Conservation Act 1983. Under that Act, the Governor-General can issue a Proclamation protecting a site where satisfied that it is either an existing World Heritage listed property or a property that is of the requisite standard to be submitted for potential listing and it is threatened with damage or destruction. The Bill proposes to give this power to the Minister. In effect, this change is virtually only formal as the Governor-General acts on advice of the Executive Council. This proposal may provide a more efficient mechanism for such declarations. Additionally, judicial review of a Ministerial decision is simpler to access than judicial review of a decision by the Governor-General.(31) There is no provision in the Bill to make these declarations of the Minister disallowable instruments, although if the Legislative Instruments Bill [No. 2] 1996 is enacted there may still be Parliamentary scrutiny of the declarations.

Currently, Australia has international obligations under the Convention for the Protection of the World Cultural and Natural Heritage 1972 to protect the following properties inscribed on the World Heritage List: the Great Barrier Reef; Kakadu National Park; the NSW Willandra Lakes Region; the Lord Howe Island Group; the Tasmanian Wilderness; Uluru-Kata Tjuta National Park; the Central Eastern Rainforest Reserves; the Wet Tropics of Queensland; Shark Bay (WA); Fraser Island; and the Australian Fossil Mammal Sites (Macquarie Island and Heard-McDonald Islands). These sites fall within clause 13's definition of a 'declared World Heritage property'.

Subdivision B-Wetlands of international importance

Clause 16 deals with the protection of wetlands declared under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (the Ramsar Convention). A person is prevented from taking an action that will have or is likely to have a significant impact on the ecological character of a declared Ramsar wetland (penalty for an individual is 5,000 penalty units or $550,000 and for a body corporate is 50,000 penalty units or $5,500,000).

Subclause 16(2) provides that this penalty does not apply if the: action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Subclause 16(3) provides that 'ecological character' has the same meaning as in the Ramsar Convention. This is unsatisfactory as the Ramsar Convention does not in fact contain a definition in its text and Article 3 of the Ramsar Convention makes it clear that 'technological developments, pollution or other human interference' can change the ecological character of a site.

Subclause 17(3) permits the Minister to temporarily declare a wetland not presently on the list to be a declared Ramsar wetland if it is of international significance and its ecological character is, or is likely to be, under threat.(32)

Subdivision C-Listed threatened species and communities

Clause 18 prohibits the taking of an action that has, will have or is likely to have a significant impact on a species or community listed as critically endangered or endangered, a species that are extinct in the wild and vulnerable species (penalty for an individual is 5,000 penalty units or $550,000 and for a body corporate is 50,000 penalty units or $5,500,000). There are no penalties for taking an action that will have a significant impact on a listed vulnerable ecological community.

Clause 19 provides that this prohibition does not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Subdivision D-Listed migratory species

Clause 20 prohibits actions taken without the requisite approval that have, will have or are likely to have a significant impact on a listed migratory species (penalty for an individual is 5,000 penalty units or $550,000 and for a body corporate 50,000 penalty units or $5,500,000). Migratory species refer to species protected under the Bonn Convention, JAMBA and CAMBA and any other relevant international agreement. (See also clause 209 below for the mechanisms to list a migratory species).

Subclause 20(2) provides that this prohibition does not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Subdivision E-Protection of the environment from nuclear actions

Clause 21 requires approvals for constitutional corporations, the Commonwealth or Commonwealth agencies to take nuclear actions (as defined below) which have, will have or are likely to have, a significant impact on the environment (penalty for an individual is 5,000 penalty units or $550,000 and for a body corporate is 50,000 penalty units or $5,500,000). The same prohibitions apply in the Territories and to people within the Commonwealth's constitutional reach under the trade and commerce power.

Subclause 21(4) provides that penalties do not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Subclause 22(1) defines nuclear action. The proposed definition includes 'transporting spent nuclear fuel or radioactive waste products arising from reprocessing'. This is a very limited definition of all the actions involved in transporting radioactive material and does not include, for example, road transport of uranium mining and milling products or radioactive waste products apart from reprocessing.

The proposed definition of nuclear installation specifically includes:

  • a nuclear fuel fabrication plant (although Australia currently does not make nuclear fuel)
  • a nuclear reactor (although Australia has no nuclear reactor that generates electricity)
  • a research reactor
  • a nuclear power plant (although Australia has none)
  • a nuclear fuel storage facility
  • an enrichment plant (although Australia has none), and
  • a reprocessing facility (although Australia has none).(33)

Although this proposed definition is substantially the same as the one used by the International Atomic Energy Agency, defining 'nuclear installations' to include a range of installations that Australia does not have is of concern. For example, it means that if one of these installations were built in Australia, the environmental assessment would be subject to the range of 'exemptions' in the Bill (for example a ministerial declaration that no environment approval was required). Given the public significance of these decisions, it seems appropriate that an environmental assessment regime for something like a nuclear reactor be subject to specific Parliamentary scrutiny at the time the decision to build the installation was taken.

An outcome which reflects this view was reached during debate over exactly the same definition of 'nuclear installation' in the recently enacted Australian Radiation Protection and Nuclear Safety Act 1998. Following public concerns over the breadth of the definition, the Government introduced amendments to the Bill significantly limiting the definition of nuclear installation.(34)

Subdivision F-Marine environment

Clause 23 protects the marine environment in Commonwealth marine areas and the immediately adjacent waters by prohibiting the taking of an action that has, will have or is likely to have, a significant impact on the environment or the Commonwealth marine area (penalty for an individual is 5,000 penalty units or $550,000 and for a body corporate 50,000 penalty units or $5,500,000).

Subclause 23(4) provides that this prohibition does not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; the person taking the action is the Commonwealth or a Commonwealth agency; or it is pursuant to clause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Clause 24 defines a Commonwealth marine area to include the waters of Australia's declared EEZ (exclusive economic zone) which extend 200nm out from the outer edge of Coastal Waters of the States and the Northern Territory as defined in the Coastal Waters (State Title) Act 1980 and the Coastal Waters (Northern Territory Title) Act 1980.

Subclause 23(2) extends the coverage of this clause to actions outside Commonwealth marine areas but within Australian jurisdiction. This means that a proposal on the coast discharging effluent into coastal waters of a State which impact on Commonwealth waters 3 nautical miles to sea would be covered by this provision.

Subclause 23(5) provides that the prohibition of taking an action does not apply to fishing permitted under State or Territory law.

Subdivision G-Additional matters of national environmental significance

Clause 25 provides that the regulations can prescribe a further range of actions that are prohibited in accordance with the general formula of the above matters of national environmental significance. Curiously, the subdivision does not empower regulations that would be constitutional only pursuant to the races power, and may therefore fail to authorise regulations of specific relevance to indigenous peoples.

Part 3, Division 2-Protection of the environment from proposals involving the Commonwealth

Subdivision A-Protection of the environment from actions involving Commonwealth land

Clause 26 prohibits the taking of an action on Commonwealth land (or on land outside Commonwealth land that will significantly affect Commonwealth land) that has, will have or is likely to have a significant impact on the environment.

The penalties differ from those set out in relation to 'matters of environmental significance' and are 1,000 penalty units for an individual or $110,000 and 10,000 for a body corporate or $1,100,000.

The exemptions for these provisions also differ from those set out in relation to 'matters of environmental significance'. Subclause 26(3) provides that these provisions do not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is not a controlled action under Part 7; it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation; the action is declared by the Minister to be one to which the subsection does not apply (subclause 26(4)); or the person taking the action is the Commonwealth or a Commonwealth agency.

Definition of Commonwealth land: Clause 27 defines Commonwealth land as a Commonwealth area that is not a Commonwealth marine area. (Clause 24 defines a Commonwealth marine area as being inside the seaward boundary of the EEZ, with the excision of State waters and certain other areas.)

In practical terms, Commonwealth lands include airports, post offices, some telecommunications installations, external territories, non-self governing territories and a sizeable area of defence land which is reserved for use by the armed forces for training, research and military installations.

Exemption for the defence and security forces: Subclause 26(4) provides that the Minister may make a written declaration exempting defence and security forces from the Bill if they are satisfied it is in the interests of Australian defence or security or preventing, mitigating or dealing with a national emergency. There is little case law on the meaning of phrases such as 'defence and security' and 'national emergency' and hence it is unclear how large this exemption may be. Notably, the Department of Defence is the Commonwealth's largest single owner/user of property, with an unimproved capital value of $1.97 billion.(35) In 1993, defence land represented 18,600 square kilometres or 0.24 % of the land area of Australia.(36)

Subdivision B-Protection of the environment from Commonwealth activities and decisions

Clause 28 requires an approval for actions taken by the Commonwealth or its agencies inside or outside the Australian jurisdiction which has, will have or is likely to have a significant impact on the environment (penalty for an individual is 1,000 penalty units or $110,000 and for a body corporate 10,000 penalty units or $1,100,000.).

Subclause 28(2) provides that the prohibition does not apply if: the action is approved under Part 9; Part 4 allows an action to be taken without approval (bilateral agreements, Ministerial declarations, conservation agreements); the action is declared by the Minister to be one to which the section does not apply (subclause 28(3), (4) and (5) discussed below); the action is not a controlled action under Part 7; or it is pursuant to subclause 160(2)-aid projects, aviation and airspace or anything else defined by regulation requiring Commonwealth authorisation.

Subclause 28(3) provides that the Minister may make a declaration exempting actions necessary for Australia's defence and security in the same way as the above subclause 26(4).

Subclauses 28(4) and 28(5) allow the Minister to exempt actions or a specified class of actions taken by a specified Commonwealth agency with the proviso that the agency must comply with the law of the State or Territory dealing with environmental protection. It is unclear whether this implements the relevant sections of the COAG Agreement dealing with compliance with state environment and planning laws.

Note also that as discussed above in relation to the definition of 'action', this provision does not apply when a government body is granting a governmental authorisation for another person to take an action (see clause 524).

Part 4-Cases in which environmental approvals are not needed

This Part provides key exemptions from the Bill's general prohibition against the taking of actions that are likely to have a significant impact on the environment:

  • bilateral agreements
  • Ministerial declarations
  • conservation agreements
  • Regional Forest Agreement regions, and
  • actions in the Great Barrier Reef Marine Park.

Division 1-Actions covered by bilateral agreements

Clause 29 provides that an approval under Part 9 is not required for actions taken by a State/self-governing Territory and the action is expressed in a bilateral agreement not to require approval. (Bilateral agreements are elaborated on in Chapter 3).

Division 2-Ministerial declarations

Clause 32 provides that an approval under Part 9 is not required if the Minister has already made a declaration that the proposed action falls within a class of actions which do not require approvals.

Clause 33 provides that the Minister may make such a declaration if the taking of the action has been approved by the Commonwealth or a specified Commonwealth agency in a specified manner. The specified manner of approval can rely on a variety of bases, including a policy, plan or program endorsed under a strategic assessment made pursuant to Part 10.

In all cases the Minister must be satisfied that the alternative processes will involve consideration of the impacts of the action on the matter protected.

These provisions generally permit the Minister to 'delegate' her or his approval functions to alternate bodies including, for example, the Department of Primary Industries and Energy, which has significantly different portfolio responsibilities to that of the Environment Minister. There are no public notice or consultation procedures for this 'delegation', and the Bill does not provide guaranteed environmental safeguards or any public consultation in the approval processes which must be followed by those other Departments. The Minister must merely be satisfied that impacts will be considered.

Division 3-Conservation agreements

Clause 37 provides that actions specified in a conservation agreement do not require approval under Part 9 where taken by the party to the agreement. (Conservation agreements are elaborated upon in Part 14).

Division 4-Forestry operations in certain regions

Clauses 38-40 provide another significant exemption to the Bill's general prohibition against the taking of actions which are likely to have a significant impact on the environment without approval in relation to forestry operations activities done in an area covered by a regional forest agreement (RFA), or an area over which an RFA is being negotiated (these areas are specifically defined in clause 41).

Clause 42 provides a specific exception to this exemption if such forestry operations are carried out in World Heritage sites and Ramsar wetlands.

Please see the Concluding Comments for additional views on these provisions.

Division 5-Actions in the Great Barrier Reef Marine Park

Clause 43 provides another exemption for certain actions taken in the Great Barrier Reef Marine Park from the Bill's general prohibition against the taking of actions which have, will have or are likely to have a significant impact on the matters of national environmental significance in Part 3 without approval. It provides that a person may take such an action if it is authorised under the Great Barrier Reef Marine Park Act 1975 in relation to, amongst other things, a plan of management, a zoning plan, a permission or an authority.

It would appear that the environmental impact of tourist developments in the Great Barrier Reef Marine Park requiring permits from the Great Barrier Reef Marine Park Authority (GBRMPA) would not be assessed under this Bill. This is at odds with the current situation where such permits could be assessed under the Environment Protection (Impact of Proposals) Act 1974 if GBRMPA considered that the activities would have a significant impact on the environment of the Park. Environmental groups have recommended that an amendment be made to reinstate such a power.(37)

Chapter 3, Part 5-Bilateral agreements

This Chapter provides for the development of Commonwealth and State/Territory bilateral agreements. Clause 44 provides that the objects of these agreements are to:

  • protect the environment
  • promote the conservation and ecologically sustainable use of natural resources
  • ensure an efficient, timely and effective process for environmental assessment and approval of actions, and
  • minimise duplication in the environmental assessment and approval process through Commonwealth accreditation of State/Territory processes and vice versa.

However, as noted below, the provisions only very generally lock in the first two objectives concerning environmental and conservation protection.

Division 2-Making bilateral agreements

Subclause 45(2) provides that a bilateral agreement is a written agreement defined as a bilateral agreement between the Commonwealth and a State or self-governing Territory that provides for one or more of the above four stated objects. Not all of these objects relate to protection of the environment and ecologically sustainable use of natural resources. Therefore, a bilateral agreement under this Chapter could simply be an agreement that provides for minimising the duplication of environmental assessment, with no explicit reference to protecting the environment.

Exemptions from Part 9 approval process: Clause 46 provides that a bilateral agreement may declare that certain classes of action are exempt from the approval processes under Part 9 if:

  • those actions have been approved by the relevant State/Territory, or a specified agency of that State /Territory, in a specified manner or
  • the actions have been approved by the Commonwealth/Commonwealth agency in a specified manner or
  • the actions are taken in a specified manner or including in accordance with a 'strategic assessment' under Part 10.

Subclause 46(2) provides that the only limitation for the Minister entering into agreements which refer to these 'alternative processes' is that the Minister must be satisfied that the processes adequately consider the impact the action will have on the matters of national environmental significance in Part 3. The standard of such adequate consideration is a matter for the Minister's discretion.

Exemption from Part 8 assessment process: Clause 47 provides that bilateral agreements may declare that actions in a class of actions identified wholly or partly by reference to another assessment in a specified manner need not be assessed under Part 8. The very general limitation is that the Minister must be satisfied that the assessment will include assessment of the impacts of the action on each matter protected in Part 3. The manner of assessment accredited for this provision includes, but is not limited to:

  • assessment by any person under a State/Territory law or agreement made pursuant to such a law
  • assessment by any person in accordance with criteria specified in an instrument agreed by the parties to the bilateral agreement.

The reference to any person is presumably to include the role of private consultants in the Bill. This raises two issues:

  • withdrawal of public scrutiny in favour of private assessment of actions that affect the public environment
  • potential conflict of interest, as private consultants are permitted under the Bill to both prepare environmental impacts statements and, pursuant to this clause, assess such statements.

Bilateral agreements which affect matters of national environmental significance

Subdivision B imposes slightly tighter restrictions on bilateral agreements that have provisions that relate to the matters of national environmental significance listed in Part 3.

Clauses 51-54 provide that in relation to declared World Heritage and Ramsar Wetlands, listed threatened species and ecological communities and migratory species, bilateral agreements:

  • must not be inconsistent with Australia's obligations under relevant international agreements
  • must promote a range of general principles consistent with relevant forms of environmental protection
  • must accord with any relevant regulations.

These general limitations are malleable (or in terms of the regulations and in some cases the nominated principles may be non-existent) and therefore may provide only minimal restrictions. It is notable that 'must not be inconsistent with' is a lower standard than 'consistent with'. Given the protection of the environment, especially aspects of it which are of national significance, is a primary object of the Bill, it is questionable whether it can be achieved by reference to such vague and minimal standards.

Clause 55 provides that a Minister must not enter into a bilateral agreement concerning a nuclear action which has the effect of giving preference to one State over another State.

Additional limits on bilateral agreements

The Bill appears to attempt to address the minimal limits on the scope and operation of bilateral agreements in the following ways:

  • subclause 48(2) provides that a provision of a bilateral agreement has no effect for the purposes of the Act to the extent that it is inconsistent with the Act or any regulations
  • clause 50 provides that the Minister may enter a bilateral agreement only if satisfied that the agreement accords with the objects of the Act and meets the requirements prescribed by any regulations.

As the objects and purposes of the Act are generally broad rather than prescriptive and the regulation making power may or may not be exercised in relation to this issue, it is questionable whether these clauses provide convincing environmental safeguards.

In light of these concerns, environmental groups have submitted that the Bill be amended to include best practice environmental criteria as a condition of entering into a bilateral agreement.(38)

Scrutiny of bilateral agreements

Clause 48 makes it discretionary for bilateral agreements to contain provisions for 'auditing, monitoring and reporting on the operation and effectiveness of all or part of the agreement'. There is no provision for public consultation for bilateral agreements, either prior to settlement of the agreement or after the agreement's operation and subclause 45(2) provides that the agreements are only published 'in accordance with the regulations' after the agreement has been finalised.

Clause 65 Bill sets a five year maximum for the duration of a bilateral agreement and provides that the Minister must review the operation of the agreement and report the outcome of the review to the relevant State or Territory Minister, before the 5 years has elapsed. Given the limited mechanisms for review (set out below), the 5 year span is significant. Subclause 65(3) also provides that the Minister must publish the report, but only in accordance with regulations.

Division 3-Suspending and ending bilateral agreements

Division 3 provides three circumstances in which a bilateral agreement may be suspended or ended:

  • any person may refer to the Minister a matter that the person believes involves a contravention of a bilateral agreement
  • if the Minister is satisfied that non-compliance with the agreement is having a significant effect on a matter of national environmental significance
  • if a State/Territory party requests suspension or cancellation.

Clause 57 provides that any person may refer to the Minister a matter that the person believes involves a contravention of a bilateral agreement, although the Minister can ignore vexatious, frivolous or unsupported complaints. Clause 58 provides that if the Minister believes that the State or Territory that is a party to the bilateral agreement has either not complied with it or has not given effect to it, in a way that upholds the objects of the Act and promotes the discharge of Australia's obligations under any international agreement, he or she must first consult with the relevant State or Territory Minister. If that consultation does not satisfy the Commonwealth Environment Minister, he or she may then give notice under clause 59 that the bilateral agreement is, or certain provisions are, to be suspended or cancelled. A minimum of 10 business days notice is required.

Clause 60 provides for the emergency suspension of a bilateral agreement if the Minister is satisfied that non-compliance by the State or Territory with the agreement is having or will imminently have a significant impact on any matter of national environmental significance in Part 3. Notably, as this is only limited to a matter of national environmental significance, emergency procedures cannot be invoked in relation to all the other range of matters that this Part envisages could be covered by bilateral agreements.

Clause 62 provides that if a Minister has given notice under clauses 59 or 60 to cancel or suspend a bilateral agreement and the Minister is later satisfied that the party to the agreement will henceforth comply, the Minister may revoke the notice of suspension or cancellation.

Clause 63 provides that a Minister of a State/Territory can request suspension or cancellation of a bilateral agreement.

Clause 64 provides that if an action had been approved pursuant to the bilateral agreement or a person was already taking an action pursuant to a bilateral agreement and the bilateral agreement is suspended or cancelled, the action may be continued when the bilateral agreement has been cancelled or suspended. This is to provide certainty to business interests, however, as discussed below it may also have significantly detrimental effects on the environment.

The scope to suspend or cancel a bilateral agreement is extremely narrow.

  • There is no provision for a situation where a complaint is made under clause 59 against the Commonwealth.
  • Clause 60 only provides emergency provisions for matters in Part 3.
  • As public complaints can only be made in relation to a contravention of an agreement, the only scope for making a complaint in relation to a non breach of the agreement (for example, if the agreement is having an unforeseen negative impact on the environment) is by the States and Territories under clause 63. Even in that case, if the actions of a private developer done in accordance with an agreement were having a significant and unforeseen detrimental impact on the environment, these activities could not be stopped.

Such limitations are problematic when a primary object of the Bill is environmental protection and it may be advisable to widen the ability to suspend or cancel a bilateral agreement.

Chapter 4-Environmental assessments and approvals

This Chapter generally relates to the criteria for determining:

  • whether approval for an action is needed
  • the different assessment methods of those actions that may need approval ('controlled actions') and the process by which the Minister chooses an assessment method
  • the process for approving actions once assessed.

Part 7-Deciding whether approval of action is needed

Division 1-Referral of proposals to take action

Clause 67 provides that a 'controlled action' is an action which is prohibited to be taken pursuant to Part 3 without approval under part 9.

Clause 68 requires that:

  • a person proposing to take an action that may be or is a controlled action must refer the proposal to the Minister
  • a person proposing an action that they think is not a controlled action may refer the proposal to the Minister

for the Minister's decision as to whether or not it is a controlled action.

Clauses 69-71 provide that a State or Territory government or relevant agency or a Commonwealth agency may refer the proposal to the Minister, or the Minister may request a referral from State or Territory government or relevant agency, if they have administrative responsibilities relating to the action. However, these requirements do not apply in relation to proposals by the Commonwealth/Commonwealth agency, a State/self-governing Territory or their agencies.

Environmental groups have suggested that as under the Environment Protection Act 1986 (WA), members of the public should be able to refer an action to the Minister for decision as to whether an assessment is required, in the same manner as the proponent, State or Territory Government, and Commonwealth agencies.(39)

Division 2-Ministerial decision whether action needs approval

This Division sets out the process for the Minister to follow when determining the status of an action as controlled or not.

Clause 75 requires the Minister to determine whether the action is a controlled action and which provisions of Part 3 are the relevant 'controlling provisions'. The Minister must make the decision within 20 business days of referral and may request additional information. Clause 77 provides that the Minister must give written notice of the decision to persons proposing to take the action and relevant State/self-governing Territory Ministers and must publish the notice in accordance with the regulations. However, it is not required that reasons for the decision be publicly available (subclause 77(4)).

Revocation of decisions: Clause 78 provides that the Minister may revoke the initial decision if provided with substantial new evidence or an unforeseen change. However, the Minister must not revoke a decision if they have already granted or refused approval for the action or the action has been taken (subclause 78(3)). This subclause is to provide certainty to business interests. The Minister must also reconsider certain decisions if requested by the relevant State/Territory Minister (clause 79).

Part 8-Assessing impacts of controlled actions

Division 2-Application

Once the Minister has decided that an action is a controlled action, this Division states that the assessment procedures are limited to only the relevant impacts of that action.

Clause 82 defines 'relevant impacts' narrowly as the impacts an action has or will have only on a matter of national environmental significance. This is a significant limitation. For example the impact of a new dam on an endangered species must be considered by the Minister but not the potential downstream impacts of alteration of streamflow caused by the dam.

Under the current regime, the Minister considers all impacts of the proposal.

Exceptions: Clause 83 provides that if the controlled action is covered by a bilateral agreement, assessment of the relevant impact of the controlled action does not apply.

Similarly, clause 84 provides that the Minister may make a declaration that specified actions in a class assessed by the Commonwealth in a specified manner do not require assessment. There are few limitations or safeguards on the scope of this discretion: for example before making the declaration the Minister must be satisfied that she will receive a report that will provide sufficient information to make an informed decision as to whether an action should be approved under Part 9.

Division 3-Decision on assessment approach

If the Minister decides that the proposed controlled action will have an impact on a Part 3 matter then he or she must choose which method of impact assessment will be used.

Clause 86 requires the designated proponent of an action (either the person proposing the action or another person assigned by the Minister) to give the Minister the necessary preliminary information. Clause 87 then obliges the Minister to decide whether the assessment is to be:

  • by a specially accredited process (subclause 87(4))
  • on preliminary documentation (Division 4)
  • by public environment report (Division 5)
  • by environmental impact statement (Division 6), or
  • an assessment by inquiry (Division 7).

As these different forms of assessment form a hierarchy in terms of the level of scrutiny required, with an inquiry being the most onerous form of assessment, the choice of assessment is a critical issue. Clause 87 provides that this choice is at the discretion of the Minister. There is no requirement to consider standards of environmental protection when making this decision. However, there is an obligation on the Minister to consult with the relevant State or Territory in particular circumstances (subclause 87(2)).

Subclause 87(3) sets out what the Minister must take into account in deciding the relevant process. The preliminary information (provided by the proponent) and other relevant information (eg any relevant reports) are taken into account as well as matters prescribed by the regulations. Whatever the Minister's decision, it must be published within 10 business days of being made (clause 91). Clause 90 provides that if the Minister makes a decision that assessment is by:

  • public environment report or
  • environmental impact statement

and the proponent publishes a draft report or statement, the Minister may revoke this decision and substitute it with a decision that the relevant impacts of the action must be assessed by an inquiry under Division 7. There is no requirement for providing reasons for this revocation.

Specially accredited process

Subclause 87(4) provides little detail about the meaning of a 'specially accredited process'. It states that the Minister may only choose this method if they are satisfied that the process meets the standards (if any) in the regulations, it will adequately assess the relevant impacts and he or she will receive an appropriately informative report of the process. These criteria are minimal and contain no specific measures to ensure the process meets the aims of the bill. There are also no public involvement provisions.

Division 4-Assessment on preliminary documentation

Clause 93 allows the Minister to require a designated proponent to publish certain details about the proposal and seek public comments on the proposal. The time span for public comments is at the Minister's discretion (paragraph 93(1)(iv)). Clause 94 provides that after the period for comment, the designated proponent must give the Minister a document with any changes or additions needed to take account of any comments. The Minister may refuse to accept the document if he/she believes it is inadequate. Clause 95 provides that the Secretary must prepare a report for the Minister relating to the action. There is no specificity regarding the object or content of the Secretary's report.

This report is not published, but must be provided to a member of the public on request. However, the Secretary can exclude so much of the report as is an exempt document under the Freedom of Information Act 1982 on the grounds of commercial in confidence, security of the Commonwealth or its providing advice to the Minister. The first and last of these are significant exemptions.

Division 5-Public environment reports (PERS)

Public environment reports are prepared by the designated proponent of an action, rather than by a Government body.

Clause 97 provides that the Minister must issue written guidelines that will dictate the content of PERs. Subclause 97(2) obliges the Minister to ensure that the guidelines will secure a draft PER that gives the Minister enough information to 'make an informed decision' as to whether or not to approve the proposed action. Subclause 97(5) provides that in preparing the guidelines, the Minister has the discretion to invite public comment for a time specified by the Minister and may take account of such comment.

Clause 98 provides that a designated proponent of an action must: prepare a draft report about the relevant impacts of an action; on approval from the Minister publish the draft report inviting public comment for a period of no less than 20 business days (specified by the Minister); and give the Minister a copy and summary of the comments. Clause 99 provides that the designated proponent must then finalise the report taking into account any comments. The Minister can refuse to accept the report if it is considered inadequate. The designated proponent must then publish the report once accepted. Clause 100 provides that the Secretary must provide a report relating to the action. There is no specified content for this Departmental report.

Division 6-Environmental impact statements (EIS)

Clause 102 requires the Minister to prepare written guidelines with which a draft EIS must comply. The aim of the Ministerial guidelines is to obtain an EIS which contains sufficient information about the proposed action and its likely impacts on the environment so as to enable the Minister to make an informed decision whether or not to issue an approval under Part 9. Subclause 102(5) provides that the Minister may invite public comment and take those comments into account.

Clause 103 then requires the designated proponent to prepare a draft statement about the relevant impacts of the action, obtain Ministerial approval for the draft to be published and invite public comment for a period of at least 20 business days. Clause 104 obliges the designated proponent to finalise the EIS by taking into account the comments received and furnish the Minister with a copy of the final EIS. The Minister may reject the final statement if it is considered inadequate. Clause 105 requires the Secretary to prepare a report relating to the action, but again no content for this report is specified. There are provisions in clause 105 which allow matters which are commercial-in-confidence, or which relate to national security or to advice provided to the Minister to be omitted from the final copies of the report that are otherwise available to any person upon request. These exemptions are significant.

Division 7-Inquiries

This Division covers the process for establishing a public inquiry into the likely impacts of a proposed action.

Clause 107 obliges the Minister to appoint one or more persons as commissioners (and if more than one then one must be nominated as presiding over the others) and requires the Minister to specify in writing the inquiry's terms of reference.

Clause 109 provides that a commission of inquiry is able to determine its own procedures and is not bound by the rules of evidence, but clause 110 provides that the hearings should normally be public hearings and the submissions to the commission are generally to be public unless the commission believes that it is desirable in the public interest for them not to be made publicly available (clause 110).

The commission has the power to summons witnesses and there is a penalty of 6 months imprisonment or 30 penalty units ($3,300), or both for a person failing to comply with the summons (clause 111). The same penalty applies to a person who fails to take an oath or affirmation, who fails or refuses to answer a question put to them or to produce a document in their possession pursuant to a summons (clause 112). However, the witness is protected by subclause 112(5) which prevents any answers given to the commission (or documents produced etc) from being admissible in criminal proceedings against that person other than proceedings under clause 491 for providing false information to an officer. Commissioners, or persons authorised by them, have the power to inspect land or other premises with the occupier's or person in charge of the premise's consent or alternatively apply to a magistrate for a warrant to inspect (clauses 114-117).

During the exercise of their powers, commissioners will enjoy the same immunity and protection that High Court judges do (clause 120) and unless appointed under the Public Service Act 1922 the level of remuneration must be determined by the Remuneration Tribunal (clause 124). Clause 127 provides that commissioners can have their appointment terminated for proven misbehaviour or physical or mental incapacity or if they become bankrupt or fail to meet the disclosure requirements (regarding their pecuniary interests and potential conflicts of interest of clause 128).

Clause 121 requires the commission to report to the Minister and then to publish its report (clause 122). Unlike the provisions in relation to assessment on preliminary documentation, a public environment report or an environmental impact statement, there are no provisions for the Minister to refuse to accept the commission's report, but in the other cases, the relevant document will have been produced by the designated proponent rather than an independent commission of inquiry.

Part 9-Approval of actions

This is a critical portion of the Bill which deals with Ministerial approval of actions.

Division 1-Decisions on approval and conditions

Clause 130 prescribes the time period in which a Minister must decide whether or not to approve the taking of a controlled action:

  • 40 business days or longer if the method of assessment was a public inquiry
  • 30 business days or longer if any other method of assessment was used, including pursuant to a bilateral agreement or in a manner specified in a declaration.

Minister must invite limited comment

Clause 131 provides that before a Minister decides to approve or not approve the taking of an action, the Minister must invite comments from other Ministers (including comments on economic and social matters that will be affected by the proposal under consideration). Clause 132 provides that if the Minister believes on reasonable grounds that they do not have sufficient information to make an informed decision, they may request further information from the person proposing the action, the designated proponent or the commission of inquiry (whichever is applicable).

There is no provision for public comment.

Grant of approval

Clause 133 provides that the Minister may approve the taking of a controlled action in respect of a controlling provision. The approval must be in writing, must specify all aspects of the action which are approved (for example which aspect of Part 3 the approval relates to) and set out any relevant conditions.

Clause 134 grants the Minister a discretion to attach a condition to the approval in relation to:

  • protecting a matter protected under Part 3 for which the approval has effect
  • repairing or mitigating damage in relation to a provision of Part 3 for which the approval has effect.

This is a highly significant provision. It clearly signals that the Bill permits approval of actions which damage the matters of national environmental significance in Part 3, and that mitigating the damage by imposing conditions is a discretionary decision for the Minister.

Other conditions may include:

  • requiring insurance to be held
  • submitting to an environmental audit from time to time
  • repairing damage done whilst taking the action
  • requiring specified environmental monitoring to be carried out.

General considerations

Clause 136 provides the considerations the Minister must and may take into account when deciding on an approval. The Minister must consider:

  • matters relevant to any matter protected by a provision of Part 3 that is a controlling provision
  • economic and social matters.

The concern has been raised that whereas all economic and social matters may be taken into account by the Minister in making their decision, only certain environmental matters may be taken into account, namely the six matters of national environmental significance. This may not be sufficient to protect the environment.

The Minister must take into account (among other things):

  • the principles of ecologically sustainable development
  • public environmental reports, impact assessment statements, commission reports following an inquiry
  • any other relevant information the Minister has on the action.

Subclause 136(3) spells out the principles of 'ecologically sustainable development' The 'core objectives' are noted as the enhancement of individual and community well-being by following a path of economic development that safeguards the welfare of future generations, the need to maintain inter-generational equity and to protect biological diversity and maintain essential ecological processes and life-support systems. Such phrases are likely to require fleshing out by the courts.

In addition to the 'core objectives' there are a number of other matters listed in subclause 136(3) that are described as 'guiding principles'. These include:

  • the precautionary principle (which is defined at subclause 391(2) and linked to specific aspects of the Bill at subclause 391(3) and discussed below)
  • the global dimension of environmental impacts
  • the need to maintain and enhance international competitiveness
  • cost effective and flexible measures
  • decisions and actions should provide for broad community involvement.

In addition, the Minister may consider the person's history in relation to environmental matters (subclause 136(4)).

Clauses 137-141 impose other requirements on the Minister if the decision relates to a World Heritage or Ramsar site or a threatened species and endangered communities or migratory species, so that the Minister must not act inconsistently with Australia's international obligations. It is notable that the phrase 'not act inconsistently' is wider than a directive to 'act consistently'.

Division 3-Variation of conditions and suspension and revocation of approvals

Clauses 143-145 grant the Minister the power to vary (including add to) the conditions attached to an approval or to suspend or revoke the approval on certain grounds. Generally the grounds are that the action has had or will have a significant impact on any matter of national environmental significance identified in Part 3 and:

  • in relation to conditions, it is necessary to revoke, vary or add a condition to protect the matter
  • in relation to approvals the approval would not have been granted if information had been provided on the impact.

Part 10-Strategic assessments

Strategic assessments are one of the processes listed in Part 3 as permitting a person to do an otherwise prohibited action in relation to a matter of national environmental significance. Along with bilateral agreements, strategic assessments provide one of the most significant potential exemptions to the Bill's approval regime.

Division 1-Strategic assessments generally

Clause 146 gives the Minister the power to agree on a strategic assessment of the impact of controlled actions carried out under a 'policy, plan or program' (not defined). The agreements are made with a person responsible for the adoption or implementation of the policy, plan or program. It must provide for preparation of a report on the impact of actions (a draft of which must be available for public comment) and endorsement of the policy, plan or program by the Minister is he or she is satisfied that the report adequately addresses the impacts of controlled actions.

Two possible outcomes result from such a strategic assessment.

  • Paragraph 87(3)(b) provides that when the Minister is deciding upon the assessment method, if a report has been provided for a strategic assessment, then the Minister must consider this report in making a decision. This potentially means that the Minister can choose a less rigorous form of assessment on the ground that a strategic assessment has been completed, a possibility explicitly countenanced in a note at the end of clause 146.
  • More significantly, subclause 33(4) provides that a Minister may declare that actions approved under a strategic assessment do not require approval under Part 9 if the Minister is satisfied that the report under the agreement adequately addresses the impact of the actions. Such a declaration avoids all other assessment and approval processes in the Bill.

The scope and effect of strategic assessments are potentially very wide. First, the phrase 'policy, plan or program' is not defined and appears to cover a policy, plan or program of a private individual/corporation as well as a government authority relating to any matter, but which touch on a matter of national environmental significance. Second, the standard for assessment is low ('adequately address'), does not include any specific environmental safeguards and satisfaction of that standard is according to the subjective belief of the Minister. Finally, the clause provides for no mechanism of review by the Commonwealth of the agreement after a fixed period, in contrast to, for example, bilateral agreements.

Division 2-Assessment of Commonwealth-managed fisheries

The Australian Fisheries Management Authority (AFMA) is the Commonwealth statutory authority responsible for the management and sustainable use of Commonwealth fishery resources. Clause 148 obliges the AFMA to make strategic assessment agreements (in accordance with clause 146) with the Minister. These agreements are to be in relation to potentially controlled actions taken in accordance with a fishery management plan for a fishery managed under the Fisheries Management Act 1991. Clause 150 requires this process to be done within a 5 year period of the Bill's commencement. Clause 151 makes similar provision for areas managed under the Torres Strait Fisheries Act 1984.

Clause 152 provides for further assessment if the impact of the actions permitted in a fishery have, will have or are likely to have a more significant impact on the a matter protected by Part 3 than previously reported.

Part 11-Miscellaneous rules about assessments and approvals

Division 3-Exemptions

Clause 158 provides that a person proposing to take a controlled action (or the designated proponent) may apply in writing to the Minister for an exemption from a specified provision of Part 3 or of this Chapter.

The Minister must only grant the exemption if he or she is satisfied that it is in the national interest (subclause 158(4)). National interest is not defined. Subclause 158(5) provides that the Minister may consider Australia's defence or security interests or a national emergency, although this expressly does not limit the scope of the Minister's discretion. The potential scope of this exemption provision is therefore very wide.

The Minister must publish a copy of the notice granting the exemption in accordance with the regulations within 10 business days of making the notice.

Division 4-Application of Chapter to actions that are not controlled actions

Clause 160 requires a Commonwealth agency or employee considering giving an authorisation in respect of:

  • foreign aid for a project anywhere in the world that is likely to have a significant impact on the environment
  • the management of aircraft operations in airspace
  • the adoption or implementation of a major development plan for an airport, or
  • another action prescribed by the regulations

to inform the Minister of the proposed action and consider that Minister's advice before issuing the approval. The Minister must apply the assessment processes in Part 8 in relation to the proposed action (clause 162) and the Minister must then advise whether or not the agency or employee should give the approval and if so, what conditions they should attach or advise on any other matter relevant to the protection of the environment (clause 163). However, the Commonwealth agency responsible for giving authorisation does not have to accept any or all of the Minister's advice (clause 164).

Subclause 160(3) enables 'like actions' that have previously received authorisation under this Subdivision to be exempt from this process. 'Like actions' are defined in subclause 160(4).

Chapter 5-Conservation of biodiversity

Part 12-Identifying and monitoring biodiversity and making bioregional plans

Article 7 of the Convention on Biological Diversity obliges States to identify those components of biological diversity that are important for its conservation and sustainable use. The Convention also requires States to monitor their use and identify processes that are likely to have a significant adverse impact on the conservation and sustainable use of biological diversity. The Bill goes some way to implementing Article 7.

Division 1-Identifying and monitoring biodiversity

Clause 171 allows the Minister to give financial or other assistance to anyone who is doing work relevant to the identification or monitoring of components of biodiversity.

Clause 172 provides that in relation to Commonwealth land, the Minister is obliged to prepare inventories that identify, and state the abundance of the listed threatened species, listed threatened communities, listed migratory species and listed marine species on Commonwealth land. Subclause 172(2) requires this inventory to be commenced within five years of the Bill's commencement or five years from the date of the Commonwealth's acquisition of the land, whichever is the later.

In relation to marine areas, clause 173 requires a survey to be prepared of all cetaceans (whales, dolphins and porpoises) together with listed threatened species or ecological communities, listed migratory species and listed marine species. This is to be done within ten years of the date of commencement or from the date that the area became a Commonwealth marine area whichever is the latter.

Clause 174 obliges the Minister to ensure that these inventories are updated on a continuing basis. Given that these inventories are restricted to Commonwealth land and marine areas, they in fact will not fully implement Article 7 of the Convention on Biological Diversity which requires preparation of national inventories.

Division 2-Bioregional plans

There is no requirement for the Minister to prepare a bioregional plan for a particular Commonwealth area. However, clause 176 provides that if a bioregional plan is prepared, it can include provisions about biodiversity, economic and social values, mechanisms for community involvement and monitoring and review of the plan.

Part 13-Species and communities

Division 1-Listed threatened species and ecological communities

This Division provides that the Minister will publish a list in the Gazette of species that are extinct, extinct in the wild, critically endangered, endangered, vulnerable, or conservation dependent. Lists must also be published of threatened ecological communities and key threatening processes.

Clause 184 is equivalent to the existing provision in the Endangered Species Protection Act 1992 and allows the Minister to amend the lists of threatened species and ecological communities by way of a disallowable instrument. Clause 189 provides that in general the Minister may not include or delete a species or ecological community from a list until after he or she has considered advice from the Threatened Species Scientific Committee (established by clause 502). This scope for Ministerial control does not correct the current concern that the listing process is prone to politicisation, rather than being fully based on scientific expertise.

Permit System: Subdivision B makes it an offence to kill, injure, take, trade, keep or move a member of a listed threatened species or ecological community (except a member of a listed threatened species which is a cetacean as this is considered in Division 3) within a Commonwealth area. However, clauses 200-207 elaborate on a permit system for the taking of such actions. The range of reasons for granting a permit is reasonably wide. Clause 197 provides a range of additional circumstances in which such otherwise prohibited action can be taken (for example action done to relieve an animal's suffering, action reasonably necessary for the purposes of law enforcement).

The restriction of this permit system to Commonwealth areas raises questions as to whether the Commonwealth will be fulfilling it obligations under the Convention on Biological Diversity, which requires States to 'develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.'(40) Notably, the COAG Agreement states that there was disagreement on how the triggers will operate in relation to nationally endangered and vulnerable species and endangered ecological communities and it is unclear whether the States and Territories have protection for threatened species or listed ecological communities equivalent to this Bill. Given this lack of certainty, and the logistics of protecting nationally endangered species, it seems logical that these species are protected under Federal legislation.

Decisions on permits in this Division are no longer subject to review by the Administrative Appeals Tribunal, as is generally the case currently under section 96 of the Endangered Species Protection Act 1992.

Division 2-Migratory species

Clause 209 prescribes what will constitute a listed migratory species. These lists must be compiled and gazetted by the Minister and are disallowable instruments under section 46A of the Acts Interpretation Act 1901. Subclause 209(3) provides that the list can only include native species listed under a Gazetted international agreement, species listed under the Bonn Convention (whose range includes Australia), species listed under the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA) and those species listed under the Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment (CAMBA).

Permit System: Subdivision B makes it an offence to kill, injure, take, trade, keep or move a member of a listed migratory species (except a member of a listed threatened species, as this is considered in Division 1 or a cetacean as this is considered in Division 3) within a Commonwealth area. However, clauses 215-222 elaborate on a permit system for the taking of such actions. The range of reasons for granting a permit is reasonably wide. Clause 212 provides a range of additional circumstances in which such otherwise prohibited action can be taken (for example action done to relieve an animal's suffering, action reasonably necessary for the purposes of law enforcement).

The concerns about limiting this regime to Commonwealth areas are the same as noted above in relation to threatened species and ecological communities.

Division 3-Whales, dolphins and porpoises (cetaceans)

The Whale Protection Act 1980 is one of the Acts to be replaced by the Bill. This Division of the Bill incorporates the protection currently existing in the Whale Protection Act 1980 and increases the penalties for infringement.

Clause 225 establishes the 'Australian Whale Sanctuary' in the EEZ and certain other coastal waters (but not those currently under the jurisdiction of a State or Territory). This proposal is a descriptive rather than a legal change, as a 'sanctuary' for whales within Commonwealth waters is already in place by virtue of current legislation. Clause 226 provides that by agreement with the States and Territories, the 'Australian Whale Sanctuary' may be extended to include coastal waters under State jurisdiction.

Clause 229 makes it an offence, punishable by up to 1000 penalty units ($110,000) or 2 years imprisonment, or both, to kill, injure, take, trade, keep, move or interfere with a cetacean in the Sanctuary or beyond it. However, clause 231 lists certain exemptions including if the person had a permit authorising them to take the action which resulted in the 'offence', if the action was taken in an emergency and was reasonably necessary to avoid a serious threat to human life or property, or if it was the result of an unavoidable accident. Clauses 233-234 extend the offence to possessing or treating unlawfully imported cetaceans, with similar exceptions. Clause 236 exerts jurisdiction over foreign whaling vessels by preventing them from coming into Australian ports (unless there is an emergency or unless they have the written permission of the Minister).

Permit System: Subdivision F introduces a permit system to allow a permit holder to take certain actions regarding cetaceans that would otherwise contravene the Division. Clause 165 deals with the mechanism for assessing applications for permits relating to whales, dolphins and porpoises. Clause 238 prevents the Minister from issuing a permit unless he or she is satisfied that the proposed action will either contribute significantly to the conservation of cetaceans or will only interfere with the cetaceans in an incidental way. An example of this could be the conducting of sonic tests underwater which may help oceanographers in their work but, as an incidental effect, may cause hearing damage to cetaceans and interfere with their communication.

Subclause 238(4) provides that permits may not be granted to either kill a cetacean or to take a cetacean for live display. This is a significant change from the Whale Protection Act 1980 which allowed the issuing of permits to take whales for live display or to kill or to take whales for scientific or educational purposes.

Paragraph 238(3)(c) provides that a permit may be granted for whale-watching, which must be carried out in accordance with the regulations (if any) made pursuant to clause 247. Given the potential impact of this activity, it is highly desirable that the making of regulations be mandatory.

Clause 239 allows the Minister to attach conditions to a permit (including varying them and/or revoking them) and it is an offence under clause 240 for a permit holder to fail to comply with those conditions.

Division 4-Listed marine species

Clause 248 requires the Minister to compile and publish a list of certain nominated marine species within 30 days of the commencement of the Act. The clause nominates all species of sea snakes, sea kraits, seals and sea lions, crocodiles, the dugong, sea turtles, seahorses, pipe fish and seabirds. Clause 249 provides that the Minister may amend the list but can only add to the list if he or she is satisfied that it is necessary to ensure the long-term survival of the species (clause 250).(41) Clause 251 provides that the Minister must consider advice from the Threatened Species Scientific Committee (established in clause 502) before listing or deleting a species. Ministerial discretion on this again raises issues of potential politicisation of the listing process.

Permit System: Subdivision B makes it an offence to kill, injure, take, trade, keep or move a member of a listed marine species (except those already covered by Divisions 1, 2 or 3) within a Commonwealth area. However, clauses 257-264 elaborate on a permit system for the taking of such actions. The range of reasons for granting a permit is reasonably wide (clause 258). Clause 255 provides a range of additional circumstances in which such otherwise prohibited action can be taken (for example action done to relieve an animal's suffering, action reasonably necessary for the purposes of law enforcement).

Concerns have been raised about the scope of this offence provision given the wide definition of a listed marine species.(42)

Division 5, Subdivision A-Recovery plans and threat abatement plans

Clause 267 provides that once a threatened species or threatened ecological community has been listed, the Minister must make a recovery plan and a threat abatement plan, but not if the species is 'conservation dependent'. Clause 267(4) provides that the Commonwealth must seek the co-operation of the relevant State or Territory to make joint plans unless the species or ecological community is only found in a Commonwealth area. Clause 268 prohibits a Commonwealth agency from taking any action that contravenes a recovery plan or threat abatement plan but does not appear to specify any consequence of such contravention.

Clause 270 sets out what a recovery plan must include. The identification of necessary habitat and populations of the relevant species or community are included as well as a list of factors that will assist their long-term survival. Paragraph 270(2)(g) also requires that the plan identify 'interests that will be affected' by its implementation.

The content of threat abatement plans is different to recovery plans and clause 271 requires that they include, among other things, the objectives to be achieved, the criteria by which such achievement is measured, the actions needed to achieve the objectives and the estimated duration and cost of the process.

Where a plan calls for the eradication of a non-native species, clause 272 requires the Commonwealth to offer stock of that species to its 'native' country (if it is a threatened species there) before taking steps towards eradication of the species within Australia.

Clause 273 sets differing timeframes for the preparation of a recovery plan or threat abatement plan depending on whether the relevant species or community is critically endangered, endangered or vulnerable. Advice from the Threatened Species Scientific Committee must be obtained and considered by the Minister when finalising a recovery or a threat abatement plan (clause 274). Clause 276 provides that in accordance with the regulations (if any) the Minister consider all comments from the public. Clause 279 makes provision for the Minister to review plans at least every 5 years and gives the Minister the power to vary a plan after certain requirements are met.

Division 5, Subdivision B-Wildlife conservation plans

Subdivision B allows the Minister to make wildlife conservation plans for listed migratory and marine species and cetaceans found in the EEZ (but not a listed threatened species). The provisions of clauses 285-298 are broadly similar to those for the recovery or threat abatement plans described above. There are provisions for review and provisions requiring advice from the Threatened Species Scientific Committee. Clause 291 provides that the Minister must, in accordance with the regulations, consider all comments from the public. Clause 296 provides that the Commonwealth may also provide assistance (including financial assistance) to a person or a State or self-governing Territory to implement a recovery, threat abatement or wildlife conservation plan. Once made, a Commonwealth agency must take all reasonable steps to act in accordance with the plan (clause 286), but there appear to be no penalties for contravention.

Division 6-Access to biological resources

This Division consists of one clause. Clause 301 provides that regulations (if any) may provide for the control of access to biological resources in Commonwealth areas. There are some guidelines as to what the regulations may contain in relation to equitable sharing of benefits arising from the use of biological resources in Commonwealth areas, facilitation of access to, and the right to deny access to, such resources.

Access to biological resources is an extremely complex issue, which raises difficult questions of international environmental law, international trade law, indigenous peoples' internationally recognised human rights, foreign investment procedures and domestic patenting laws.(43) The complexity of these issues is particularly acute in Australia, which is defined as one of the Earth's twelve mega diverse nations, and which houses unique biodiversity.

Indigenous peoples have indicated particularly urgent concerns on this matter. The Central Land Council stated in their submission to the Senate inquiry that:

Access to biological resources is a major issue for traditional Aboriginal people in Central Australia. The Human Genome Diversity Project in particular has caused much anxiety. The appropriation, particularly by pharmaceutical companies, of indigenous biological knowledge (without acknowledgment or compensation) for significant industrial and commercial gain, is also of major concern.(44)

It is unsatisfactory that an issue of such magnitude be dealt with so summarily in a Bill directed partly at biodiversity conservation.

Division 7-Aid for conservation of species in foreign countries

Clause 302 allows the Minister to give financial aid to other countries or to organisations to help with the recovery and conservation in those countries of a species that is listed in one of the international agreements to which Australia is a party.

Invasive species

It is notable that Part 13 makes no mention of invasive species other than those that pose a threat to endangered species or listed ecological communities. Invasive species, which may be animal or plant, terrestrial, aquatic or marine, pose a threat to Australia's biodiversity, but not necessarily to threatened species or listed ecological communities. Invasive species are recognised internationally as a threat to biodiversity,(45) and accordingly it would seem appropriate to insert a section in this legislation to regulate such species.

Part 14-Conservation agreements

Conservation agreements provide another significant mechanism for avoiding the assessment and approval provisions of the Bill.

Clause 304 provides that conservation agreements are agreements between the Commonwealth and persons (private individuals or corporations) whose primary object is to enhance the conservation of biodiversity. These agreements can relate to private or public land, or to marine areas. This therefore provides a framework for agreements with private individuals or corporations for the management of important public areas.

Subclause 305(2) provides that the Minister must not enter into a conservation agreement unless satisfied that it will result in a net benefit to the conservation of biodiversity and is not inconsistent with a recovery, threat abatement or wildlife conservation plan. However, nothing in the Bill assists the Minister in assessing whether there will be a net benefit. There is no requirement for advice from the Threatened Species Scientific Committee to be considered. There is no requirement for any kind of environmental assessment to be done.

A provision of an agreement that is inconsistent with a Commonwealth, State or Territory law has no effect to the extent of its inconsistency (clause 311).

Conservation agreements, which can occur in a Commonwealth reserve, are not subject to any public scrutiny or to consultation with traditional owners (although clause 309 provides that the Minister must make copies of the agreement available for purchase once signed). Given that conservation agreements could allow private management of a public area, this lack of public input is inappropriate.

Paragraph 306(1)(f) provides that conservation agreements can declare that specified actions taken in a specified manner do not require approval under Part 9.

Environmental groups have noted that conservation agreements can be a powerful tool to encourage good environmental outcomes on private land. However, they have criticised the proposed regime in relation to the possible exclusion of actions under such agreements from Part 9 approval processes:

This is undesirable, and unnecessary. Encouraging biodiversity conservation is one thing. However, it is inappropriate to provide people with the incentive of an exemption from environmental laws. The incentive traditionally used - financial and technical assistance from Government - would be quite adequate if it were properly resourced and encouraged.(46)

Part 15-Protected areas

Division 1-Managing World Heritage properties

This Division contains a new regime for the management of World Heritage properties in Australia. Unlike the existing World Heritage Properties Conservation Act 1983 that this Bill replaces, the new provisions require the Minister to be satisfied that the Commonwealth has 'used its best endeavours' (clause 314) to reach agreement with the relevant State or Territory before submitting a property to the World Heritage Committee for possible inscription on the World Heritage List. Clause 316 implements the provisions of the World Heritage Convention that oblige a country to make a written management plan for a World Heritage Listed property but only in relation to Commonwealth areas. Once made, the Commonwealth must not contravene the plan (clause 318), but there appear to be no penalties for contravention. Clause 319 requires the Minister to review that plan at least every 5 years.

There is no requirement for the Commonwealth to make a management plan in relation to World Heritage properties that are in a State or self-governing Territory. Clause 321 only provides that in relation to such World Heritage property, the Commonwealth must 'use its best endeavours' to ensure a plan is prepared and implemented in co-operation with a State or Territory for managing the property in a way not inconsistent with Australia's international obligations or any Australian World Heritage management principles which may or may not exist in regulations (see clause 323). The absence of a requirement that the Commonwealth ensures the appropriate protection of World Heritage properties anywhere within Australia is at odds with our international obligations. The discretionary nature of the management principles appears unsatisfactory when key principles could instead be incorporated into the Bill.

Division 2-Managing wetlands of international importance

This Division contains a similar regime for the Wetlands of International Importance listed under the Ramsar Convention. Clause 326 provides that, as with the potential World Heritage sites, the Commonwealth is required use its 'best endeavours' to seek the agreement and co-operation of the person or relevant State or Territory before submitting any wetlands for possible inclusion on the Ramsar list and for developing a joint management plan for those sites on State or Territory land. Again, the concerns outlined with regard to World Heritage apply here.

Division 3-Managing biosphere reserves

Clause 337 defines a 'biosphere reserve' as an area designated for inclusion in the 'World Network of Biosphere Reserves by the International Co-ordinating Council of the Man and the Biosphere' program of the United Nations Educational, Scientific and Cultural Organisation.

Clause 338 grants the Commonwealth the discretion the Commonwealth to develop plans to manage biosphere reserves designated for inclusion in the World Network of Biosphere Reserves. The plans must not be inconsistent with any Australian Biosphere reserve management principles (if any) which will be prescribed by regulation (clause 340).

Division 4-Commonwealth reserves

Clause 344 permits the Governor-General by Proclamation to declare certain areas of land or sea to be Commonwealth reserves. This includes land owned by the Commonwealth in a Territory, held under lease by the Commonwealth in or outside a Territory or in a Commonwealth marine park. Subclause 344(2) provides that land for such reserves cannot be acquired and declared a Commonwealth reserve in a State or self-governing Territory without the consent of the State or Territory. It is intended that the Uluru-Kata Tjuta and Kakadu National Park, continue their status as Commonwealth reserves (see Environment Reform (Consequential Provisions) Bill 1998).

Clause 351 provides that prior to declaring a reserve, the Minister is required to consider a report of the Secretary of the Department. The Secretary's report is to include any public comments received on the proposal to create a reserve (although this provision does not apply in relation to an area in the Kakadu region, subclause 351(6)). Clause 346 requires the reserve to be named and the purposes for which it is declared to be enunciated. In addition, the reserve must be assigned to one of the following 'IUCN categories', as defined by the World Conservation Union (IUCN):

  • strict nature reserve
  • wilderness area
  • national park
  • natural monument
  • habitat/species management area
  • protected landscape/seascape
  • managed resource protected area.

Clause 347 contains a description of the characteristics of each IUCN category of reserve. Paragraph 347(1)(a) provides that before a reserve is assigned a particular category, the Minister must be satisfied that the reserve has the relevant characteristics, meets the criteria (if any) prescribed by the regulations and that the reserve will be managed in accordance with Australian IUCN reserve management principles (if prescribed by regulations pursuant to subclause 348(1)). There is no provision for traditional Aboriginal owners' involvement in the making of these principles.

Clause 350 provides that the Governor-General may revoke or amend a Proclamation relating to a Commonwealth reserve. If this is to have the effect that certain areas cease to be included in a Commonwealth reserve, this effect is required to be in accordance with a resolution of each House of Parliament. Clause 352 provides that if land held by the Commonwealth under a lease ceases to be in a Commonwealth reserve, the Commonwealth's leasehold interest in land ceases to exist.

Clause 358 provides that the Commonwealth must not sell or otherwise dispose of a usage right the Commonwealth holds in relation to land, sea or seabed in a Commonwealth reserve. However, the Commonwealth may grant a lease, sublease or a licence relating to such land or seabed in accordance with the relevant management plan.

Clause 354 then prohibits the taking of certain actions (like excavation, building, logging) unless such action is authorised by the management plan for that particular Commonwealth reserve. Clause 354(2) provides that if there is no management plan then certain actions are specifically authorised by the Bill, such as conducting authorised scientific research and preserving or protecting the reserve or its biodiversity (although subclause 354(3) provides that this does not apply to the Kakadu or Uluru region or the Jervis Bay Territory). It is notable that sub-paragraph 354(4)(a)(iii), which relates to the operation of this clause in respect of Jabiru, is incompletely drafted and makes no sense.

Clause 355 allows mining operations within Commonwealth reserves only if the Governor-General has approved them and they are carried out in accordance with the reserve's management plan. It is notable that paragraph 355(5)(c), which relates to the operation of this clause in respect of Jabiru, is incompletely drafted and makes no sense.

Clause 359 provides that this does not apply to existing rights at the time of commencement of the Bill and clause 387 expressly prohibits any mining in Kakadu National Park. In relation to the Jabiluka uranium mine, it should be noted that the present mine site is situated physically within the outer boundaries of the park but in an area excised from the declared park. Therefore, this provision will have no impact on the proposed Jabiluka mine.

The Bill provides for differing levels of protection for different classes of Commonwealth reserve. Clause 360 prohibits certain activities in wilderness areas. For example, only the Secretary (or agent) may use a vehicle, aircraft or vessel in a wilderness area (paragraph 360(4)(f)).

Subdivisions D and E deal with the compliance with and the approval of management plans. Clause 362 obliges the Secretary to give effect to a management plan where one is in existence. If no management plan exists then clause 357 applies the relevant IUCN reserve management principles (if any have been made under regulation). Therefore, it is possible that there could be neither a management plan nor the relevant management principles.

Specific issues concerning jointly managed reserves between indigenous land councils and the Commonwealth

The specific provisions concerning reserves jointly managed by traditional owners and the Commonwealth refer to the Secretary of the relevant Department as the representative of Commonwealth interests, rather than the current arrangement where the statutory office of the Director of National Parks and Wildlife is the relevant person. This is significant and is discussed further below.

Clause 363 provides that if there is a dispute between the Secretary and a land council about the Secretary's implementation of the management plan in a jointly managed reserve, the Secretary must inform the Minister of the indigenous peoples' disagreement and the Minister must appoint a suitable person to inquire into the matter and report back to him or her. Subclauses 364(5) and (6) preserve the Ministerial override in relation to decisions of the Board. However as this right has never been exercised in thirteen years under current laws, it may be unnecessary to reiterate such a power in this Bill.

Clauses 367-369 relate to content and preparation of management plans. Although these generally reflect existing provisions in the National Parks and Wildlife Conservation Act 1975, minor amendments have been proposed by the Central Land Council in relation to management of Uluru-Kata Tjuta.(47)

The Bill also provides a dispute resolving mechanism in clause 369 in the event of a disagreement between the Secretary and the Board with respect to a management plan. That clause provides that the Minister must appoint an arbitrator if the dispute cannot be settled. Approved management plans are disallowable instruments under clause 371 and therefore are subject to Parliamentary scrutiny. Such plans expire after seven years (clause 373).

Subdivision F-Boards for Commonwealth reserves on indigenous people's land

This Division establishes the functions and composition of a Board for a Commonwealth reserve that is wholly or partly on indigenous people's land if there is agreement between the traditional owners and the Minister that there should be a Board. The functions include the preparation of and monitoring of management plans as well as a role for advising the Minister on all aspects of the future development of the particular reserve (clause 376). The composition of the Board, if it relates to a reserve that is wholly or partly on indigenous peoples' land must contain a majority of indigenous persons nominated by the traditional owners (subclause 377(4)).

Subclause 377(5) requires that at least one member of the Board is to be nominated by a State or self-governing Territory, if the reserve is in a State or self-governing Territory. This arrangement was not foreshadowed in the Consultation Paper, has not been the subject of consultation with traditional owners and has sparked significant criticism from the Uluru-Kata Tjuta and Kakadu Boards of Management (see discussion below).

The qualifications for membership of the Board are to be determined by agreement between the Minister and the relevant land council (paragraph 377(2)(d)), and the remuneration level determined by the Remuneration Tribunal (clause 381). Subclause 382(4) provides that the Minister may terminate an appointment if the member engages in paid employment that in the Minister's opinion, conflicts or could conflict with the proper performance of duties. This discretionary power is contentious: as noted by the Central Land Council it 'ignores the daily reality of the work of traditional owners'.(48)

Clause 390 establishes special rules for the preparation of management plans within the Kakadu region, Uluru region or the Jervis Bay Territory to provide for extra involvement of indigenous people in the planning process.

However, not all reserves are jointly managed and where the Commonwealth is the sole manager of the reserve, the Bill does not seem to provide an input for any indigenous persons who may be living in the region (even though the Bill is expressed so as not to affect any native title rights under the Native Title Act 1993). The issue of the joint management of parks and reserves is discussed in a Parliamentary Library Research Paper by Dr David Lawrence.(49)

Related Indigenous concerns

As noted above, the inclusion of a designated State or Territory representative on Boards of management in certain circumstances has sparked concern by indigenous peoples. Submissions to the Senate inquiry into the Bill have raised the following additional concerns from indigenous peoples in relation to jointly managed reserves.

The Environmental Reform (Consequential Amendments) Bill 1998 proposes to repeal the National Parks and Wildlife Conservation Act 1975, which includes repealing the Director of National Parks and Wildlife. The current Bill transfers the relevant responsibilities of the Director to the Secretary, Department of Environment and Heritage. This is a significant change. For example, in relation to Uluru-Kata Tjuta, the Director is the lessee of the Park from the Aboriginal Land Trust. The lease currently provides for the transfer of the lessee's interest only, with the consent of the lessor. There has been no consultation or negotiation with the Uluru-Kata Tjuta Aboriginal Land Trust and the legal ramifications concerning this absence of consent on the lease is unclear. Regardless of these legal issues, the lack of consultation undermines the principles of joint management. The Kakadu Board of Management's submission to the Senate inquiry further discusses these concerns.(50)

The Environmental Reform (Consequential Amendments) Bill 1998's proposed repeal of the National Parks and Wildlife Conservation Act 1975 removes section 70 of that Act that provides within Commonwealth parks for protection of Aboriginal interests in flora and fauna for subsistence, ceremonial and religious purposes. Professor Marcia Langton of the Centre for Indigenous Natural and Cultural Resource Management has suggested that this action appears to amount to an acquisition of these interests without compensation.(51)

Cumulatively these concerns are significant. Reflecting this level of concern, the Kakadu Board of Management has issued a press statement indicating their intention to consider terminating the lease of Kakadu National Park to the Commonwealth on the basis of what they regard as an unacceptable dilution of indigenous decision-making.(52)

Chapter 6-Administration

Part 16-Application of precautionary principle in decision-making

Clause 391 requires the Minister to consider the precautionary principle when making certain decisions under the proposed legislation. The precautionary principle states that 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. The precautionary principle is an increasingly important aspect of international environmental law, is recognised in some international legal instruments(53) and was incorporated in the 1992 Intergovernmental Agreement on the Environment (IGAE) between the Commonwealth and the State and Territory governments. (54)

Clause 391 lists those decisions in which the Minister must consider the precautionary principle. Decisions excluded from this list include reconsideration of whether an approval is required for an action (clauses 78 and 79). It also does not apply to the important decision as to the level of assessment to be required.(55) Although application of the precautionary principle to some Ministerial decision making is a significant advance from current laws, it is difficult to understand why it does not apply to all Ministerial decisions.

Part 17-Enforcement

Division 1-Wardens, rangers and inspectors

Clauses 392-394 propose that the Minister may appoint a wide range of people (including members of the police force and Commonwealth, State or Territory public servants) to be wardens or rangers to exercise certain powers and functions of enforcement. Clause 396 also allows the Minister to appoint 'a person' to be an inspector.(56) The Bill does not provide details of what qualifications or training the wardens, rangers or inspectors will be required to have. Given the wide range of powers available to wardens and rangers, the absence of qualifications is of concern.

Clause 400 allows regulations to be made which specify the functions, powers and duties to be conferred on wardens, rangers and inspectors but again this is a discretionary clause.

Division 2-Boarding of vessels etc. and access to premises by consent

Clause 406 sets out the powers of an authorised officer (defined at clause 528 only as wardens and inspectors) to board a vehicle, vessel, aircraft, platform or premises and search it, take samples of evidence or extracts from material found there and make copies of documents found there.

Division 3-Monitoring of compliance

Clauses 407-412 gives authorised officers monitoring powers (searching with the occupier's consent, obtaining a warrant to search) to check that a particular occupier of a premises is continuing to comply with the proposed legislation.

Division 4-Search warrants

Division 4 sets out the search powers available to an authorised officer with a warrant. These powers are broadly similar to search powers in other Commonwealth legislation and provide that a search warrant may be issued by a magistrate if they are satisfied by information given to them on oath that there are reasonable grounds for suspecting that evidential material is, or will be, on the premises (clause 413). The occupier of the premises is entitled to be shown a copy of the search warrant (clause 419), to be present at the search (clause 425) and to receive compensation for any careless damage done to equipment during the search (clause 423). Strip or cavity searches of the person cannot be authorised by a warrant (clause 427). Division 8 allows goods and other baggage on a ship or aircraft travelling between a place in Australia and a place outside Australia or between an external Territory and a place outside that Territory to be searched.

Division 5-Stopping and searching aircraft, vehicles or vessels

Clause 429 authorises the emergency search without warrant of an aircraft, vehicle or vessel by an authorised officer to prevent evidence being destroyed.

Division 6-Arrest and related matters

Clause 430 gives the authorised officer the power of arrest, in some circumstances, in the absence of a warrant if there are reasonable grounds for suspecting that they may have committed an offence and proceedings against them via a summons would not be effective. Clause 431 grants the power to an authorised officer to conduct a frisk search in certain circumstances.

Division 9-Power to ask for names and addresses

Clause 444 provides an authorised officer with the power to ask an individual for their name and address if there are reasonable grounds for suspecting that the person has committed an offence and there is a penalty of 10 penalty units ($1100) for failing or refusing to comply with such a request.

Division 10-Seizure and forfeiture etc

Clause 445 allows the seizure of goods by an authorised officer if they have reasonable grounds for suspecting that the goods either were involved in the commission of an offence or are evidence of the commission of an offence against the proposed Act. Seized goods can be held for 60 days (which can be extended by a magistrate for up to 30 days at a time) or until proceedings for an offence against the proposed Act or its regulations are completed (clause 446). At the expiration of the period, the goods can either be disposed of (if no owner can be found, clause 447) or returned to the owner (clause 448). If, however, the seized goods constitute a serious threat to the environment or to public health, to the existence of a particular species or other like threat, the Secretary may order the immediate disposal of the goods (clause 449).

Division 12-Environmental audits

Clause 458 grants the Minister the discretion to require an environmental audit to be done by the holder of Chapter 5 permit or a Part 9 approval if the Minister has reasonable grounds for suspecting or believing that a condition of the permit or approval has been contravened or is likely to be contravened. Although a discretionary power which may be more effective if it applied to all approvals, this is a useful development in environmental protection as previously there was no provision for carrying out ongoing monitoring of environmental performance by way of an audit.

Division 13-Conservation orders

Clause 464 allows the Minister to make conservation orders to protect listed threatened species or ecological communities on Commonwealth land or sea. The Bill does not provide that similar 'conservation orders' can be made with respect to World Heritage sites, Ramsar sites or other matters of national significance. A conservation order can only be made if the Minister reasonably believes that it is necessary to protect a listed threatened species or a listed threatened ecological community and the order may prohibit or restrict certain specified activities within some or all Commonwealth areas. Alternatively, such an order can require certain persons to take specified action in some or all Commonwealth areas.

Subclause 464(3) obliges the Minister to have regard to the economic and social considerations consistent with ecologically sustainable development principles when deciding whether or not to make a conservation order.

Clause 466 requires that conservation orders be reviewed by the Minister at least every 5 years and either confirmed, varied or revoked in writing. Varying the order is not permitted unless the Minister is satisfied that the varied order protects the listed threatened species or ecological community. Revoking the order is not permitted unless the Minister is satisfied that the order is no longer needed to protect the environment.

Once made, conservation orders must be gazetted and notices sent to people known to be affected by the order. Clause 468 allows a person affected by a conservation order (or by the decision on review of that order) to apply in writing to the Minister, within 28 days, to reconsider his or her decision. In reconsidering the matter, the Minister must seek the Secretary's advice and notify the applicant of the decision promptly (clause 469).

Clause 470 provides a penalty of up to 500 penalty units ($55000) for the contravention of a conservation order. There is also provision for a person to ask the Minister's advice on whether the action they propose taking will contravene an order. Once they have received the Minister's advice they are entitled to rely on it as a complete defence to an accusation of contravening a conservation order. If the person is dissatisfied with the advice, they may apply to the Administrative Appeals Tribunal for a review of the Minister's decision (clause 473).

Clause 474 allows the Secretary to provide financial or other assistance (including the provision of goods or labour) to a person to help them comply with a conservation order provided that the value of the assistance is reasonable and proportionate to the obligations imposed on that person. Any assistance given may be offset against the compensation otherwise payable under clause 519 (see below).

 

Division 14-Injunctions

Clause 475 provides that only:

  • the Minister or
  • an interested person (other than an unincorporated organisation) or a person acting on behalf of an unincorporated organisation that is an interested person

can apply to the Federal Court for an injunction to restrain offences or contraventions of the proposed Act.

Subclause 475(6) provides that an 'interested person' is an individual

  • whose own interests have been, are or would be affected by the conduct or proposed conduct or
  • who has been engaged in a series of conservation activities or environmental research at any time in the 2 years preceding the conduct.

If 'interests' is interpreted in its material sense, these standing provisions may be more restrictive than those in some current environmental laws repealed by this Bill. For example, section 14 of the World Heritage Properties Conservation Act 1983 provides that an 'interested person' for the purposes of an application to the Federal Court for an injunction is 'a person whose use and enjoyment of any part of the property is, or is likely to be, adversely affected'. Additionally, there has been significant legal academic criticism of restrictions on standing in relation to matters of public concern. For example, the Australian Law Reform Commission in its inquiry into standing to sue for public remedies,(57) has recommended that any person should be able to commence proceedings having a public element in nearly all circumstances. Limitations on such standing merely:

act as an extra source of unnecessary legal costs and delay. It does not act as an effective filter for disputes that are futile, vexatious or otherwise inappropriate for litigation. Such a filter is provided by other laws.(58)

Division 16-Judicial review of administrative decisions

Clause 487 provides a definition which appears to widen the scope of a 'person aggrieved' for the purposes of the Administrative Decisions (Judicial Review) Act 1977. However, a significant change is that Aboriginal persons will lose their existing statutory right(59) to be taken to be a 'person aggrieved' under the Administrative Decisions (Judicial Review) Act 1977 to challenge Ministerial decisions relating to the authorising of otherwise unlawful acts in relation to Aboriginal sites.

Additional enforcement measures

Other enforcement measures in the Bill include the fact that the Minister may, under clause 498, publicise contraventions of the proposed Act or the regulations. Clause 499 allows the Commonwealth to take such steps as are possible to mitigate or remedy environmental damage.

Miscellaneous

Clause 515 empowers the Minister to delegate all or any of his or her powers or functions under the Bill to an officer or employee in the Department. Given the expansive Ministerial discretion in this Bill, such powers of delegation have wide ramifications.

Clause 520 permits the Governor-General to make regulations giving effect to any of a long list of agreements, many of which have not previously been cited in the Bill.

Chapter 8 contains definitions of various terms used in the Bill.

Concluding Comments

Responses to the Bill

Although industry groups have generally embraced the objectives of the legislation, particularly the clarification of the Commonwealth's responsibilities, these groups have also raised the following significant concerns.

  • The Bill's failure to reflect the more co-operative relationships that have developed between industry, governments and the community.
  • Absence of fully operational bilateral agreements prior to the Bill's commencement will institutionalise duplication and will render the Bill unworkable.
  • The Bill's broad regulation making powers create significant uncertainty and hence all regulations must be produced and debated contemporaneously with the Bill.(60)

Non-government groups have also raised significant concerns.

  • Reduction of Commonwealth control over environmental regulation through the nomination of only six matters of national environmental significance for which the Commonwealth has direct responsibility.
  • Absence of a Commonwealth regulatory framework over other matters, despite their identification in the COAG Agreement as matters of national environmental significance (for example climate change, greenhouse gases, ozone depletion).
  • Devolution of Commonwealth control of environmental regulation to the States and Territories by limiting grounds for Commonwealth decision-making and by developing processes (such as bilateral agreements) which can transfer assessment and approval powers to the States and Territories.
  • The wide range of mechanisms to exempt the matters of national environmental significance from assessment and approval processes with minimal environmental safeguards.
  • Absence of requirements to ensure public participation in relation to many key aspects of the Bill.
  • Broad discretionary powers of the Minister in relation to a wide range of decisions and actions.(61)

Other stakeholders have also raised concerns. For example, a range of representative indigenous bodies have argued that the Bill fails to take into account culturally different approaches to the environment, which is of significance when considering, for example, development of bilateral agreements. Additionally, indigenous groups have noted that certain State and Territory governments have historically very poor records on the environment, including insensitivity to indigenous peoples' specific concerns. This is of concern in light of the Bill's devolution of Commonwealth power.(62)

Council of Australian Governments (COAG) Agreement 1997

The COAG Agreement 1997, which forms a significant policy basis for the Bill, realigns the division of environmental powers between the Commonwealth and States and Territories. The Agreement provides that the Commonwealth should opt out of jointly assessing the environmental impact of projects for which the Commonwealth has some decision-making power and instead be restricted to considering the impact of projects on seven matters of national environmental significance.

The Commonwealth's opting out of its environmental responsibilities goes further with the Agreement stating a preference for the Commonwealth to devolve its decision-making responsibilities regarding assessment of projects affecting the seven matters to the States and Territories through bilateral agreements.

There are concerns about the degree to which the Agreement represents the views of all relevant stakeholders. For example, it has yet to be made publicly available and concerns have been expressed about the level of public consultation.(63)

The additional 23 matters of national environmental significance included in the Agreement. but which were not agreed on as triggers for the Commonwealth assessment process, are vitally significant issues. It is unclear in the Agreement why they have been excluded as triggers.

Environment assessment

One defect of the Environment Protection (Impact of Proposals) Act 1974 is that the decision as to whether an action should be referred for assessment is at the discretion of the portfolio Minister whose Department would be responsible for the proposed development. Concerns have been raised that this has resulted in a lack of appropriate referrals and a consequent avoidance of invoking the Act.(64) The ability of the Environment Minister to invoke the provisions of Commonwealth environmental assessment procedures under this Bill is a major improvement, which was first recommended in 1979 by the House of Representatives Standing Committee on Environment and Conservation Report.(65)

The Bill also provides for the first time legislative protection in relation to Ramsar wetlands of international importance and migratory species.(66)

Two significant concerns can be raised in relation to the scope of the assessment regime.

Firstly, the ability to invoke the assessment procedures in relation to Commonwealth decisions is one means of ensuring that the Commonwealth acts to protect matters of environmental significance. Restricting Commonwealth assessment to generally the six triggers of matters of national environmental significance generally reduces the Commonwealth's ability to intervene to protect the environment in comparison to current law. It also reduces the scope of authorised Commonwealth responsibility under the COAG Agreement. The fact that the other 23 matters of national environmental significance identified by COAG are not triggers for the assessment procedures means that there are issues recognised as nationally significant over which the Commonwealth has no power to intervene.

Secondly, as the Environment Minister can only consider those parts of a proposal which impact on the relevant matter of national environmental significance, (rather than the environmental impact of an entire project) the Bill further limits the operation of the assessment procedures regarding matters of national significance. It is quite possible that a proposal, which triggers the assessment procedures for a World Heritage property, may not detrimentally affect the World Heritage values but could adversely affect one of the 23 matters that are not listed as relevant matters of environmental significance in the Bill. In such a case the Minister will have to approve the proposal even though it may adversely affect a matter of national environmental significance, such as greenhouse gas emissions. It could be argued that the Commonwealth is ignoring its responsibilities if it permits such an action to occur. It seems essential that the Minister be able to assess the environmental impact of the entire proposal not a small section of it.

Exempted Commonwealth actions

The Bill permits the avoidance or significant modification of environmental assessment procedures as applied to Commonwealth agencies, by expressly exempting certain actions from the scope of the Bill. These include actions in relation to airports, telecommunications, Commonwealth-managed fisheries, the Great Barrier Reef Marine Park Authority permissions and the provision of foreign aid. (Some of these areas, for example telecommunications and airports are currently subject to similar exemptions). Additionally, the Bill provides for an unknown number of Commonwealth actions that may be exempted at the discretion of the Environment Minister through being a declared action. Some have considered the new Bill to be an opportunity to remove some or all of these exemptions(67) and this opportunity appears to have been lost.

Departmental officials have indicated that Ministerial declarations will be made to exclude the existing Antarctic environment protection legislation under the Antarctic Treaty System from the operation of this legislation. If this is the case, such a major policy decision should be made public in advance of the Bill being debated.

Bilateral agreements

Bilateral agreements are fundamental to the success of this legislation. If they are inadequate, there is the potential that the Commonwealth's national and international obligations will not be met. Three inter-related concerns arise in relation to the substance of bilateral agreements.

Firstly, the Bill provides only a discretionary list of what may be included in general bilateral agreements, and only a slightly more specific list for bilateral agreements affecting certain matters of national environmental significance. The Parliament is therefore being asked to approve a critical aspect of the Commonwealth's new environmental law regime with little substantive detail.

Secondly, State and Territory governments and industry groups have indicated concerns about the process for the development of bilateral agreements. The representative of the Australian and New Zealand Minerals and Energy Council (ANZMEC),(68) speaking on behalf of the State and Territory minerals and energy ministers, explained to the Senate inquiry that:

ANZMEC has great concern about the Commonwealth's commitment and ability to develop bilateral agreements and finalise them before the commencement of the legislation, in order to achieve outcomes consistent with the COAG heads of agreement ...if they are not in place before the act comes into force, it will result in significant duplication of approval processes at the Commonwealth and state/territory levels. ANZMEC also notes that bilateral agreements must meet the requirements of regulations...these must also be finalised before commencement of the Act.(69)

The National Farmers Federation has raised similar concerns.(70)

Thirdly, from a different perspective, environment groups have stated that a fundamental problem with bilateral agreements is the devolution of the Commonwealth's decision-making function to the States or Territories in respect of a matter of national environmental significance. The Environmental Defenders Office has argued that the Bill permits this devolution with minimal mandatory environmental safeguards, significant Ministerial discretion and no provision for public participation in the development of the agreements.

Regional Forest Agreements

The Bill provides a general exemption for forestry operations within Regional Forest Agreement (RFA) areas for the life of the Agreement, which may be twenty or more years. Presumably, this is done to avoid duplication in assessment processes (RFAs are assessed under a Comprehensive Regional Assessment). However, given the potentially long duration of an RFA, one outcome is that there will be limited scope in RFA areas for the Commonwealth to address aspects of national environmental significance that may have been unforeseen or poorly understood by the scientific community at the time the RFA was negotiated.

For example, it is quite possible that within the next twenty years a plant or animal species or ecological community may be declared endangered and the recovery plans that are developed pursuant to this Bill will affect forestry operation in an RFA area. If forestry operations are substantially limited or prevented by these recovery plans then, in accordance with current proposals, the Commonwealth will be liable to pay compensation to the forestry industry via the relevant State/Territory Government.

This outcome appears to undermine the Bill's object of strengthening intergovernmental co-operation on environmental protection.

Endnotes

 

  1. The Senate Environment, Recreation, Communications and the Arts Legislation Committee was reformed as the Senate Environment, Communications, Information Technology and the Arts Legislation Committee for the 39th Parliament.

  2. Heads of Government Agreement on Commonwealth/State Roles and Responsibilities for the Environment, November 1997 (hereafter the 'COAG Agreement'). The Agreement was made available through the Australian Conservation Foundation Internet site.

  3. Reform of Commonwealth Environment Legislation: Consultation Paper, issued by Senator the Hon. Robert Hill (Minister for Environment), Department of the Environment, Canberra, 1998 (hereafter the 'Consultation Paper').

  4. Senator the Hon. Rod Kemp, Senate, Debates, 12 November 1998, pp. 209-212, Second Reading Speech (hereafter the 'Second Reading Speech').

  5. C. Saunders, 'The Constitutional Division of Powers with Respect to the Environment in Australia', in Federalism and the Environment: Environmental Policymaking in Australia, Canada and the United States, K. Holland, F. Morton and B. Galligan (eds.), 1996, p. 55.

  6. House of Representatives Standing Committee on Environment and Conservation, Environment Protection-Adequacy of Legislative and Administrative Arrangements, First Report, 1979, Second Report, 1981, Australian Government Publishing Service, Canberra.

  7. Bruce MacDonald, Report of the Review of the Australian National Parks and Wildlife Service, Australian Government Publishing Service, Canberra, 1989, p. 140.

  8. Intergovernmental Agreement on the Environment, February 1992, pp. 1-2.

  9. ibid.

  10. N. Keith Boardman, Endangered Species Protection Act 1992: 1998 Review, Department of the Environment, Canberra, 1998.

  11. Senator the Hon. Robert Hill, 'Environmental reform agenda', Speech to the Australian Petroleum Production and Exploration Association Annual Dinner, 10 October 1996.

  12. ibid.

  13. Senator the Hon. Robert Hill, 'Future directions in Commonwealth responsibility for the environment', Speech to National Environmental Law Association Annual Conference, Adelaide, 3 April 1997.

  14. ibid.

  15. Communiqué: Council of Australian Governments, Canberra, 7 November 1997. Also at http://www.dpmc.gov.au/csrs/finalcom.htm.

  16. Queensland, ACT and the Commonwealth.

  17. Communiqué: Council of Australian Governments, op. cit.

  18. COAG Agreement, op. cit.

  19. ibid.

  20. ibid.

  21. Consultation Paper, op. cit.

  22. ibid.

  23. ibid.

  24. This Act has recently been the subject of amendment. See Frances Michaelis and Krysti Guest, 'Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998', Bills Digest no. 108, Department of the Parliamentary Library, 1998-99.

  25. James Prest and Susan Downing, 'Shades of green? Proposals to change Commonwealth environment laws', Research Paper no. 16, Department of the Parliamentary Library, 1997-98.

  26. Explanatory Memorandum, p. 5.

  27. Australian Aluminium Council, Australian Industry Group, Australian Institute of Petroleum, Australian Petroleum Production & Exploration Association, Australian Seafood Industry Council, Business Council of Australia, Chamber of Minerals and Energy of Western Australia, Minerals Council of Australia, New South Wales Minerals Council, Plastics and Chemicals Industry Association, Pulp and Paper Manufacturer Federation of Australia, Queensland Mining Council, Tasmanian Minerals Council, Submission No. 335, Senate Environment, Recreation, Communications and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions Vol. 5, p. 1069 (hereafter the 'Minerals Council Submission').

  28. Second Reading Speech, op. cit., p. 209.

  29. Peter Hanks, Constitutional Law in Australia, (second ed.) Butterworths, Sydney, 1996, pp. 277-279.

  30. R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545.

  31. Decisions by the Governor-General are amenable to common law judicial review (R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170), although excluded from statutory judicial review under the Administrative Decisions (Judicial Review) Act 1977. Ministerial decisions are generally subject to both forms of review.

  32. An example of the type of wetlands which could be declared are the Creery wetlands which adjoin a Ramsar listed site, the Peel-Yalgorup System in Western Australia, and which have been the subject of debate for the past five years as to whether the Commonwealth should act to protect their ecological character.

  33. To complete the list of nuclear installations, after paragraph 22(1)(g) should be added (h) a conversion plant (converts yellowcake to uranium hexafluoride).

  34. Generally, section 13 of that Act provides that 'nuclear installation' is a:
    • nuclear reactor for research or production of nuclear materials for industrial or medical use
    • a plant for preparing or storing fuel for use in a nuclear reactor
    • a nuclear waste or storage disposal facility with a certain level of activity
    • a facility for production of radioisotopes with a particular level of activity.

  35. Michael Lewis, Peter McVay, Grant Caine, Ian Gaze, Environmental Management of Commonwealth Land: Site Contamination and Pollution Prevention, Auditor-General Performance Report, Audit Report No. 31, 1995-6, p. 18.

  36. AUSLIG, Australian Land Tenure (1993).

  37. Environmental Defender's Office Ltd on behalf of thirty key environment groups, Submission No. 15, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions, Vol. 9, p. 2005 (hereafter the 'Environmental Defender's Office Submission').

  38. ibid., pp. 2006-2007.

  39. ibid., p. 2011.

  40. Convention on Biological Diversity, Article 7(k).

  41. Except for seahorses and pipefish, this list is included in National Parks and Wildlife Regulations, Schedule 1.

  42. Peter Cochrane (National Environmental Law Association (ACT Division)), Environment Protection and Biodiversity Conservation Bill 1998-Perspectives, Seminar held 12 August 1998 Old Parliament House, Canberra.

  43. For a discussion of the issue of patent laws, see Charles Lawson and Catherine Pickering, 'Patent Laws Undermine Access Provisions in the Environment Protection and Biodiversity Conservation Bill 1998', Environmental and Planning Journal, Vol. 15, No 6, 1998, pp. 401-409.

  44. Central Land Council Submission No. 595, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions, Vol. 9, p. 2113.

  45. On 3 February 1999, US President Clinton signed an Executive Order concerning invasive species establishing an Invasive Species Council and the preparation within 18 months of an Invasive Species Management Plan.

  46. Environmental Defender's Office Submission, op. cit., p. 2033.

  47. Central Land Council Submission No. 595, op. cit., p. 2121.

  48. ibid.

  49. D. Lawrence, 'Managing Parks/Managing 'Country': Joint Management of Aboriginal Owned Protected Areas in Australia', Research Paper no. 2, Dept. of the Parliamentary Library, 1996-97.

  50. Kakadu Board of Management, Submission No. 561a, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions, Vol. 10, p. 2233.

  51. Centre for Indigenous Natural and Cultural Management (CINCRM), Submission No. 618, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions, Vol. 10, p. 2306.

  52. AAP, 3 March 1999.

  53. For example, Principle 15 of the Declaration of the United Nations Conference on Environment and Development Environment and Development (Rio de Janeiro, 3-14 June 1992). It is also contained in the Preamble to the Convention on Biological Diversity and was endorsed by the Second International Conference on the Protection of the North Sea in 1987.

  54. Intergovernmental Agreement on the Environment, Clause 3.5.1, 1 May 1992.

  55. Environmental Defender's Office Submission, op. cit. p. 2039.

  56. This is comparable to the provisions of the Great Barrier Reef Marine Park Act 1975 that allow any person to be appointed as an inspector under that Act and gives them powers that include the power to detain and search aircraft.

  57. Australian Law Reform Commission, Beyond the door-keeper: Standing to sue for public remedies, Report No 78, 1996.

  58. ibid., p. 5.

  59. Subsection 13(7), World Heritage Properties Conservation Act 1983.

  60. Minerals Council Submission, op. cit., pp. 1065-1067.

  61. Environmental Defender's Office Submission, op. cit.

  62. For example see Kakadu Board of Management, Submission No. 561a and Central Land Council Submission No. 595, op. cit.

  63. Environmental Defender's Office Submission, op. cit., p. 1997.

  64. G Bates, Environmental Law in Australia (4th edition), Butterworths, 1995, p. 148.

  65. House of Representatives Standing Committee on Environment and Conservation, Environment Protection-Adequacy of Legislative and Administrative Arrangement: First Report - Environment Protection (Impact of Proposals) Act, Australian Heritage Commission Act, AGPS Canberra, 1979, p. viii.

  66. Second Reading Speech, op. cit., p. 211.

  67. Robert Fowler, Vital Issues Seminar, Department of the Parliamentary Library, 1 April 1998.

  68. ANZMEC comprises state and territory ministers responsible for minerals and energy, the Commonwealth Minister for Industry, Science and Resources and the New Zealand Minister for Energy.

  69. Dr. Colin Branch, Committee Hansard, Senate Environment, Communications, Information Technology and the Arts Legislation Committee, 26 February 1999, p. 69.

  70. National Farmers' Federation, Submission No. 530, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill 1998, Submissions, Vol.7, p. 1664.

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Krysti Guest, Frances Michaelis and Bill McCormick
23 March 1999
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