Bills Digest No. 168  1998-99 Environmental Reform (Consequential Provisions) 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

Environmental Reform (Consequential Provisions) Bill 1998

Date Introduced: 10 December 1998

House: Senate

Portfolio: Environment and Heritage

Commencement: The Act will commence when the Environment Protection and Biodiversity Conservation Act 1998 commences except for certain provisions. The Schedule 4 amendments to the Koongarra Project Area Act 1981 do not commence if section 3 of that Act commences before the Environment Protection and Biodiversity Conservation Act. The Schedule 7 amendment to the Hazardous Waste (Regulation of Exports and Imports) Amendment Act 1996, which corrects a drafting omission, is taken to have commenced immediately after that Act received the Royal Assent on 11 June 1996. The Schedule 7 amendment to the Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1995, which corrects a drafting error, is taken to have commenced immediately after that Act received the Royal Assent on 2 November 1995.

 

Purpose

The purpose of this Bill is to repeal or amend a range of legislation consequent to the enactment of the proposed Environment Protection and Biodiversity Conservation Act 1998, including:

  • repealing the Biological Control Act 1984, the Endangered Species Protection Act 1992, the Environment Protection (Impact of Proposals) Act 1974, the Whale Protection Act 1980 and the World Heritage Properties Conservation Act 1983
  • repealing the National Parks and Wildlife Conservation Act 1975, which includes abolishing the position of Director of National Parks and Wildlife and transferring all interests and assets of the Director (including the Director's status as lessee in the lease arrangements for Booderee National Park, Kakadu National Park and Uluru-Kata Tjuta National Park) to the Commonwealth
  • providing savings and transitional arrangements in relation to certain processes and permits issued under those Acts, including retaining current exemptions under the Telecommunications Act 1997
  • amending various Commonwealth Acts that are affected by the repeal of these Acts and by other aspects of the Environment Protection and Biodiversity Conservation Bill 1998.

Background

Environment Protection and Biodiversity Conservation Bill 1998

The Environment Protection and Biodiversity Conservation Bill 1998 (EP&BC Bill) represents the most far reaching change to Commonwealth environmental law in twenty-five years. The EP&BC 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, actions on Commonwealth land, 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, and
  • conservation and sustainable use of Australia's biodiversity.

The Bill also replaces 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.

For a detailed discussion and analysis of the background and provisions of the EP&BC Bill, see Bills Digest Number 135 of 1998-99 by Krysti Guest, Frances Michaelis and Bill McCormick.

Senate Environment, Communications, Information Technology and the Arts Legislation Committee Inquiry

The EP&BC Bill was introduced into the 39th Parliament on 12 November 1998, although an identical Bill had been introduced in the previous Parliament in July that year. On 8 July 1998, the Minister for the Environment had 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.

On 24 March 1999 the Environmental Reform (Consequential Provisions) Bill 1998 was also referred to the Committee for report by 27 April 1999. During the course of its 1999 hearings on the EP&BC Bill the Committee took evidence on this Bill and has included consideration of both Bills in its report.

Main Provisions

Schedule 1--Application of the new Act

Schedule 1 provides for the application of the proposed Environment Protection and Biodiversity Conservation Act 1998 (EP&BC Act) to certain actions. It also provides savings provisions in relation to processes and decisions under the Environment Protection (Impact of Proposals) Act 1974 (EPIP Act) so that certain actions assessed and permitted under that Act do not need to be assessed under the EP&BC Act.

Item 1 defines several terms for the purposes of Schedule 1, including 'action' which has the meaning given by the proposed EP&BC Act. The definition of 'finalised' is not, however, clear. 'Finalised' is defined as having the meaning given by item 1AB. No item 1AB exists. Environment Australia has subsequently advised that this is a drafting error and should read 'item 2'. Presumably an amendment will be made concerning this.

Items 3 and 4 provide that actions which were assessed or are being assessed under the EPIP Act do not need to be assessed under the EP&BC Act.

Item 5 provides that if the Environment Minister and the designated proponent of an action have agreed that the action will be assessed under the EPIP Act prior to the EP&BC Act commencing, then the relevant assessment requirements of the EP&BC Act will not apply. However, sub-item 5(5) provides that assessment under the EPIP Act must take place within two years of commencement of the EP&BC Act.

Item 6 allows the Minister administering Part 3 of the new Act to certify in writing that the environmental impacts of an action have been, are being, or will be, assessed under the Administrative Procedures under the EPIP Act. Sub-item 6(1) refers to 'items 1B and 1C'. No items 1B or 1C exist. Environment Australia has subsequently advised that this is a drafting error and should read 'items 4 and 5'. Presumably an amendment will be made concerning this.

Item 7 provides that if immediately before the commencement of the EP&BC Act, an exemption under the Administrative Procedures was in force so that certain types of environmental assessment were not required, this exemption continues in relation to assessment procedures under the EP&BC Act in certain circumstances.

Item 8 provides that Part 3 of the EP&BC Act, which deals with requirements for environmental approvals, does not apply in relation to the negotiation and making of a regional forest agreement if this is an 'EPIP activity'. EPIP activities are defined in Item 1 as activities described in subsection 5(1) of the EPIP Act, namely proposals, works and other projects, agreements and arrangements, decisions and recommendations and incurring of expenditure by the Australian Government and authorities of Australia, which were proposed before the commencement of the EP&BC Act to be undertaken and for which a proponent was designated under the Administrative Procedures under the EPIP Act before the commencement of the new Act. Therefore, all regional forest agreements initiated prior to the commencement of the proposed EP&BC Act will operate under the EPIP Act regime.

Item 3 of Part 2 of Schedule 3 makes savings arrangements to allow for the continued application of the EPIP Act to items 3, 4, 5 and 8 of Schedule 1, as if the EPIP Act were administered by the Minister administering Part 3 of the EP&BC Act.

Item 9 introduces an exemption not provided for in the EP&BC Act. Item 9 exempts certain actions in relation to telecommunications from the requirement for environmental approval provisions in Part 3 of the EP&BC Act. The exempted actions are set out in clause 55 of Schedule 3 to the Telecommunications Act 1997. Clause 55 of Schedule 3 to the Telecommunications Act provides that, in certain circumstances, where facilities are proposed to be installed before 1 January 2001 and the carrying out of the installation may have certain adverse impacts on the environment, the telecommunications carrier must give written notice of its intention to the Environment Secretary, who must make a recommendation to the Australian Communications Authority (ACA). The ACA is not required to direct the carrier in the same terms as the Environment Secretary's recommendation. This proposed exemption generally reflects the current exemption for such activities.

Item 11 provides that the provisions in the EP&BC Act on environmental approvals in relation to species and threatened communities do not apply to acts that are allowed by permit under the Endangered Species Protection Act while the provisions of this Bill allow for the permit to continue in force.

Item 12 provides that provisions in the EP&BC Act on environmental approvals in relation to species and threatened communities do not apply to acts that are allowed by permit under the Whale Protection Act while the provisions of this Bill allow for the permit to continue in force.

Item 15 provides that section 359 of the EP&BC Act does not apply in relation to usage rights held by the Director of National Parks and Wildlife immediately before the commencement of the new Act. Section 359 provides that a usage right held in relation to land, sea or seabed immediately prior to such areas being included in a Commonwealth reserve, is not affected by such a reservation under the EP&BC Act. As item 8 of Schedule 4 provides that the assets, interests and so on of the Director are transferred to the Commonwealth with the commencement of the EP&BC Act, the savings provisions for these usage rights are not relevant.

Schedule 2-Endangered Species Protection Act 1992

The Endangered Species Protection Act 1992 (Species Act) provides for the procedures to assist in endangered species protection and site conservation. Schedule 2 repeals the Species Act (Part 1) and provides saving and transitional provisions (Part 2) and consequential amendments (Part 3) in relation to species, ecological communities and key threatening processes. Commentary on the effect of repealing the Species Act can be found in the Bills Digest No. 135 of 1998-99 at p. 11 and pp. 40-41.

Part 2-Savings and transitional provisions

Items 2 to 10 provide savings and transitional arrangements for listings under the Species Act, and for the continuation of recovery plans, threat abatement plans, conservation agreements and orders, permits and inventories under that Act. (Item 11 of Schedule 1 provides that the provisions in the EP&BC Act on environmental approvals and species and threatened communities do not apply to acts which are allowed by permit under the Species Act so long as the provisions in Part 2 of Schedule 2 to this Bill allow for the permit to continue in force).

Item 3 provides for the continuation of the listing of species, ecological communities and key threatening processes which were nominated under the Species Act, and for advice given by the Endangered Species Scientific Subcommittee to be taken as corresponding advice given by the Threatened Species Scientific Committee. Sub-item 3(2) sets out a table that translates nominations under the Species Act into nominations under the EP&BC Act. Sub-item 3(5) sets out a table that translates particular kinds of advice given by the Endangered Species Scientific Subcommittee into corresponding advice taken to be given by the Threatened Species Scientific Committee under the new Act. Advice on adding listed ecological communities (item 7 of sub-item 5) is converted to advice on adding endangered ecological communities under clause 181(1)(b) of the EP&BC Act, rather than 'critically endangered' or 'vulnerable' communities. Similarly, advice on deleting a listed ecological community under the Species Act is converted to advice on deleting an endangered ecological community (item 8 of sub-item 5).

Item 4 provides for the continuation of recovery and threat abatement plans approved or adopted under the Species Act prior to the commencement of the EP&BC Act. Item 5 allows the Minister to make a recovery plan or threat abatement plan under the EP&BC Act if, before the Act commenced, the Director of National Parks and Wildlife had consulted on the draft plan in compliance with section 39 of the Species Act. The Minister is not required to wait for the Scientific Committee's advice on the timing and order of the plan before making it.

Item 7 preserves permanent and interim conservation orders in force under the Species Act immediately before the commencement of the EP&BC Act, as if they were made under the EP&BC Act. Sub-item 7(5) provides for the continuation of impact assessment conservation orders made under the Species Act in relation to an action to which the requirements for environmental approvals under Part 3 of the new Act do not apply because of items 4, 5 or 8 of Schedule 1 of this Bill. The latter items provide that actions which were being assessed or were agreed to be assessed under the EPIP Act do not need to be assessed under the EP&BC Act, nor does the negotiation and making of a regional forest agreement need to be assessed if this is an 'EPIP activity'.

Item 8 provides that permits issued under the Species Act that were in force immediately before its repeal continue in force and that Act continues to operate in relation to the permit and the action covered by the permit. If, before the EP&BC Act commenced, a person had applied under the Species Act for reconsideration of a decision relating to a permit, and the Minister had not confirmed, varied or revoked the decision, the Minister must not confirm, vary or revoke the order or decision.

Item 9 clarifies the operation of the Administrative Appeals Tribunal when reviewing a decision by the Minister administering the Species Act to give advice pursuant to Division 4 of Part 6 of the Species Act once the EP&BC Act has commenced. (Among other things, Division 4 of Part 6 of the Species Act provides that a Commonwealth agency must notify the Minister in writing if it believes that action it proposes to take may transgress a recovery or threat abatement plan or a conservation order. The Minister then advises on the proposed action. Section 106 of the Species Act already provides that the AAT may review the Minister's decision to give the advice.) Item 9 provides that the AAT may exercise the powers and discretion of the Minister administering the EP&BC Act when considering its review of the decision. This is presumably done to ensure the regime of the EP&BC Act attaches to relevant decisions as soon as possible.

Items 11 to 13 make consequential amendments to the Great Barrier Reef Marine Park Act 1975. Item 13 clarifies that the amendments to that Act do not affect the validity of a plan of management, agreement or arrangement made under the plans of management provisions in Part VB of that Act.

Item 22 provides for the refund of fees for applications for permits where at the time the EP&BC Act commences, the Director of National Parks and Wildlife had not decided whether or not to issue the permit.

Schedule 3-Environment Protection (Impact of Proposals) Act 1974

The Environment Protection (Impact of Proposals) Act 1974 (EPIP Act) generally provides for the protection of the environment in relation to projects and decisions of, or under the control of, the Australian Government. Item 1 repeals this Act. Commentary on the effect of repealing the EPIP Act can be found in the Bills Digest No. 135 1998-99 at pp. 10-12.

Part 2-Saving and transitional provisions

Item 3 ensures the continued application of the EPIP Act to EPIP activities described in items 3, 4, 5 and 8 of Schedule 1 (see above) of this Bill. That is, actions that were assessed, are being assessed or are agreed to be assessed under the EPIP Act, and the negotiating and making of a regional forest agreement if this is an 'EPIP activity'. EPIP activities are defined in item 2 as activities described in subsection 5(1) of the EPIP Act, namely proposals, works and other projects, agreements and arrangements, decisions and recommendations and incurring of expenditure by the Australian Government and authorities of Australia, which were proposed before the commencement of the EP&BC Act to be undertaken and for which a proponent was designated under the Administrative Procedures under the EPIP Act before the commencement of the new Act.

Part 3-Consequential amendment of other Acts

Aboriginal Land Rights (Northern Territory) Act 1976

The Aboriginal Land Rights (Northern Territory) Act 1976 provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginal peoples. Item 4 of this Bill repeals subsection 11(2) of that Act, which relates to a Commission appointed in 1975 to conduct and report on an inquiry in relation to uranium mining in the Northern Territory. The Explanatory Memorandum states that this Commission 'has reported, so the operation of the provision is spent'. Environment Australia has advised that this is a reference to the Ranger Uranium Environmental Inquiry: First Report, by R. Fox.(2)

Australian Heritage Commission Act 1975

Items 5-18 amend the Australian Heritage Commission Act 1975 (AHC Act) which establishes the Australian Heritage Commission, the functions of which are to identify, conserve, improve and present the national estate.

The EP&BC Bill does not include 'heritage' as a matter of national environmental significance, and although the Government has indicated an intention to introduce a new heritage protection Act, this has not occurred. The appropriateness of making the following amendments without this new regime are discussed in the Concluding Comments.

Item 11 repeals section 25 of the AHC Act. Among other things, section 25 provides that, after considering relevant environment reports, the Minister may direct the Australian Heritage Commission to record, or not record, a place on the Register of the National Estate.

Item 14 repeals section 28 of the AHC Act, which allowed the Commission to give advice to the Minister administering the EPIP Act in respect of a matter relating to the national estate and to the operation of EPIP and required the Commission to comply with a request for advice from the Minister.

Item 15 repeals section 29 of the AHC Act, which provides that where a matter to which the EPIP Act is relevant affects a place that is on the Register, and the procedures under that Act do not require the Commission to furnish an environmental impact statement or other report, the Commission may furnish a report to the Minister administering the EPIP Act. The report will be deemed to be a recommendation under that Act.

Item 18 repeals section 44 of the AHC Act, which provides that for the purposes of an inquiry under the EPIP Act, 'a matter relating to the national estate shall be taken to be a matter in respect of which the Minister administering that Act' may direct an inquiry be conducted.

Biological Control Act 1984

The Biological Control Act 1984 provides for the biological control of pests primarily in the Australian Capital Territory. Items 19 to 37 make consequential amendments to this Act, many of which are necessary to remove references to the EPIP Act and inquiries under that Act.

Items 19 to 21 amend section 19 of the Biological Control Act so that the Commonwealth Biological Control Authority cannot arrange for the Minister administering the EPIP Act to direct that an inquiry be conducted in respect of a recommendation concerning the adverse affects on the environment of control of specific organisms.

Item 24 amends section 28 of the Biological Control Act so that the Commonwealth Biological Control Authority cannot arrange for the Minister administering the EPIP Act to direct that an inquiry be conducted in respect of a recommendation concerning the adverse affects on the environment of the release of specific organisms.

Item 28 repeals paragraph 33(1)(e) of the Biological Control Act which provides that the Commonwealth Biological Control Authority may arrange for the Minister administering the EPIP Act to direct that an inquiry be conducted under that Act in respect of a declaration being contemplated by the Authority that the environment will be adversely affected by the release of specified organisms, if an adequate investigation into the release has not been held.

Items 30 to 37 amend section 56 of the Biological Control Act, which provides for Administrative Appeals Tribunal review of certain decisions of the Commonwealth Biological Control Authority relating to the EPIP Act.

The Explanatory Memorandum states at page 12 that:

[t]he new Act sets up a comprehensive scheme for the assessment of any action that is likely to have a significant impact on a matter of NES, or the environment if the action is a Commonwealth action or impacts on Commonwealth land. The links with the Biological Control Act 1984 are therefore no longer appropriate or necessary.

This may be contentious, as the proposed EP&BC Act only narrowly covers the issue of invasive species. See the Concluding Comments section on this matter.

Environment Protection (Sea Dumping) Act 1981

The Environment Protection (Sea Dumping) Act 1981 generally provides a framework for controlling marine pollution through sea dumping of waste and other damaging matter. Items 38 to 40 amend this Act so that references to procedures under the EPIP Act in relation to the granting of a permit, including the Minister directing that an inquiry be held under the EPIP Act, are removed and replaced with a scheme linked to the proposed EP&BC Act.

Item 38 provides that the Minister must either grant or refuse to grant a permit within 90 days after the application is made. If Subdivision A of Division 4 of Part 11 of the EP&BC Act applies (under which certain persons must get advice from the Minister before authorising an action) in relation to the granting of the permit, the Minister must grant or refuse to grant the permit within either 30 days after the day on which the Minister receives advice given under section 163 of the EP&BC Act or 90 days after the application is made, whichever period is longer. Sub-item 38(4) provides that Subdivision A of Division 4 of Part 11 of the EP&BC Act does not apply in relation to the granting of a permit for dumping or loading where, in the opinion of the Minister, there is an emergency posing an unacceptable risk to human health in which there is no other feasible solution.

Item 39 replaces a reference to an inquiry under the EPIP Act with an inquiry under Part 8 of the EP&BC Act.

Hazardous Waste (Regulation of Exports and Imports) Act 1989

The object of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Hazardous Waste Act) is to regulate the export, import and transit of hazardous waste to ensure that exported, imported or transited waste is managed in an environmentally sound manner so that human beings and the environment, both within and outside Australia, are protected from the harmful effects of the waste. Items 41 to 45 make amendments to the Hazardous Waste Act, so that references to the EPIP Act are replaced by references to the EP&BC Act.

Item 41 repeals section 6 of the Hazardous Waste Act which defines for the purposes of that Act at what point action is begun under the EPIP Act.

Item 43 amends section 16 of the Hazardous Waste Act, which sets out the time limits within which the Minister must decide whether or not to grant export permits. It provides that if the proposal to grant the permit is referred under Subdivision A of Division 4 of Part 11 of the EP&BC Act, the Minister must either grant or refuse to grant the permit within 30 days after receiving advice on the proposed grant. This time limit reflects current requirements.

Item 44 amends section 29 of the Hazardous Waste Act so that where proposals to vary a permit are referred under Subdivision A of Division 4 of Part 11 of the EP&BC Act, the Minister must decide whether to make the variation within 30 days after receiving advice on the proposed variation. Again, this time limit reflects current requirements.

Lands Acquisition Act 1989

The Lands Acquisition Act 1989 concerns the acquisition of land by the Commonwealth and certain authorities and the dealings with land so acquired. Items 46 and 47 make amendments to this Act in relation to its links to the EPIP Act.

Item 46 repeals subsection 31(4) of the Land Acquisitions Act. Subsection 31(4) states that if the Administrative Appeals Tribunal is considering a pre-acquisition of land declaration, and a matter being considered has been the subject of an inquiry under the EPIP Act, then the AAT is required to accept the findings of an EPIP Act inquiry. No link to inquiries under the EP&BC Act is provided.

Item 47 repeals section 42 of the Lands Acquisition Act. Currently, this section provides that in relation to the acquisition of land which is, or is in, a public park, the Minister may not make a declaration that the interest in the land is compulsorily acquired unless:

  • the Government of the relevant State or Territory has consented
  • an inquiry has been conducted under the EPIP Act, unless both Houses of Parliament have resolved that the acquisition may proceed without holding an inquiry, and
  • if the land is or is in a national estate area or a world heritage area, an environmental impact statement under the EPIP Act has been prepared in relation to the proposed acquisition.

The proposed amendment replaces this provision with the much narrower requirement that the Minister may not make a declaration regarding an interest in land that is, or is in, a public park unless the Government of the State or Territory consents.

See the Concluding Comments section for commentary on this proposal.

Sea Installations Act 1987

The Sea Installations Act 1987, among other things, aims to ensure that sea installations are operated in a manner consistent with the protection of the environment. Items 49 to 55 amend this Act.

Items 49-51 provide that if Subdivision A of Division 4 of Part 11 of the EP&BC Act (which provides that persons considering whether to authorise certain action must obtain the Minister's advice) applies in relation to the granting, renewal or variation of a permit to operate a sea installation, the Minister must decide whether or not to grant, renew or vary the permit within 30 days after the day on which the Minister receives advice under that Subdivision on the proposal to grant, renew or vary the permit. Item 53 provides that in relation to the granting of an exemption certificate to which the Subdivision applies, the Minister must grant or refuse to grant the certificate within 28 days of receiving advice. (The Explanatory Memorandum incorrectly states 30 days in relation to this time period).

Item 52 repeals Division 5 of Part III of the Sea Installations Act, which relates to the application of the EPIP Act to permits under the Sea Installations Act. Division 5 currently provides that if the Minister requires that a person seeking a permit (or variation or renewal) produce an environmental impact statement, the Minister is not required to consider the application until that requirement is completed. As environmental assessments will now be triggered independently pursuant to the proposed EP&BC Act, the Explanatory Memorandum states that there is no requirement that this Division be linked to the new EP&BC Act.

Telecommunications Act 1997

Items 56 and 57 make amendments to the Telecommunications Act 1997. Item 57 repeals subclause 28(1) of Schedule 3 to that Act, which provides that the Australian Communications Authority (ACA), in performing certain functions or exercising certain powers, is exempt from the Administrative Procedures under the EPIP Act. It replaces that provision with one which provides that the ACA is exempt from Chapters 2 and 4 and Divisions 1 to 4 of Part 13 of the EP&BC Act in relation to the performance of certain functions and the exercise of certain powers, as well as in relation to an action under the EP&BC Act authorised by a facility installation permit. Although the Explanatory Memorandum states that this effectively continues the same exemption for the same activities, it is unclear why the new provision specifically refers to 'an action ... authorised by a facility installation permit' whereas the current provision does not. This may only be a technical issue.

Wildlife Protection (Regulation of Exports and Imports) Act 1982

Items 58 and 59 amend the Wildlife Protection (Regulation of Exports and Imports) Act 1982. Item 58 ensures that the Minister must either grant or refuse to grant a permit under subsection 24(1) of that Act within 90 days after an application is made, unless Subdivision A of Division 4 of Part 11 of the EP&BC Act applies, in which case the Minister must grant or refuse to grant the permit within 30 days after the day on which the Minister receives advice given under that Subdivision on the proposed grant. This is consistent with current requirements.

Schedule 4-National Parks and Wildlife Conservation Act 1975

The National Parks and Wildlife Conservation Act 1975 (Parks Act) provides for the establishment of national parks and other parks and reserves, the establishment of the independent office of the Director of National Parks and Wildlife and the protection and conservation of wildlife. Item 1 repeals the Parks Act. Although the scope covered by this Act is generally reproduced in the proposed EP&BC Act, there are also significant and contentious changes. These are discussed further in the Concluding Comments section.

Savings and transitional provisions

Item 3 provides for the continuation of areas that were proclaimed as parks or reserves under the Parks Act as if they were declared as Commonwealth reserves under the EP&BC Act. Consistent with the powers in section 13 of the Parks Act, sub-item 3(4) allows a Proclamation under the Parks Act to be amended at any time. Sub-item 3(5) relates to paragraphs 357(1)(a) and (2)(a) of the EP&BC Act. Its effect is that the Secretary is not permitted to exercise his or her powers in relation to a Commonwealth reserve if that reserve has no International Union for the Conservation of Nature (IUCN) status (which the EP&BC Act requires all reserves be assigned) or no management plan in operation. This consequently reinforces the potential regulatory vacuum for such 'reserves' created by subsections 357(1)(a) and (2)(a) of the EP&BC Act.

Continuation of plans of management and Boards of Management

Item 4 allows for the continuation of plans of management for parks or reserves where they were in force immediately before the EP&BC Act commenced, even if the plan does not comply with section 367 of the EP&BC Act. Plans may continue for up to seven years after the EP&BC Act commences. Item 5 allows for the continuation of management plans that were being prepared and exempts requirements for public notice and consultation if they have already been included in such preparation under the Parks Act.

Item 6 provides for the continuation of Boards for the Booderee National Park, the Australian National Botanic Garden in the Jervis Bay Territory, Kakadu National Park and Uluru-Kata Tjuta National Park established under the Parks Act.

Additional Board of Management member nominated by the Northern Territory Government

Sub-item 6(2)(b) provides for an additional board member nominated by the Northern Territory to sit on the Boards of Kakadu National Park and Uluru-Kata Tjuta National Park. Sub-item 6(3) provides that the Minister must make this additional appointment within three months of commencement of the EP&BC Act. Sub-item 6(5) provides for continuity of appointment for members of the old Board when the EP&BC Act commences.

There are significant legal and political concerns associated with the proposal to provide for an additional board member nominated by the Northern Territory Government. These are discussed in the Concluding Comments section.

Transfer of Director's assets etc. to the Commonwealth

Item 8 transfers the Director's assets, estates, interests and liabilities to the Commonwealth, including the benefit of a lease of Aboriginal Land held by the Director. Sub-item 8(5) reinforces this provision by stating that each instrument in force immediately before the commencement of the EP&BC Act to which the Director was a party continues to have effect as if the instrument referred to the Commonwealth instead of the Director.

This proposal raises complex legal and political issues, and is discussed in the Concluding Comments section.

Item 9 provides for the continued appointment of wardens, rangers and wildlife inspectors where their appointment was in force under the Parks Act immediately before the EP&BC Act commences.

Part 3-Consequential amendment of other Acts

Items 12 to 95 make consequential amendments to Acts affected by the repeal of the Parks Act.

Aboriginal Land Grant (Jervis Bay Territory) Act 1986

A key object of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Jervis Bay Act) is to grant land in the Jervis Bay Territory to the Wreck Bay Aboriginal community. Items 12-26 amend this Act.

One aspect of the Bill's proposed amendments is to change the terminology concerning the national park and botanic gardens in the Jervis Bay area. However, this aspect of the Bill is confusingly drafted and uses different terminology to that in the EP&BC Bill. It would be of assistance if terminology in the Bills was consistent and that definitions were provided in the relevant Part for which they were operative, rather than being spread throughout the Bill. For clarification, it appears that the reference to 'Booderee National Park' does not include the 'Booderee Botanic Gardens'.

Item 12 amends the Jervis Bay Act to provide that 'Booderee National Park' means the Commonwealth reserve of that name within the Jervis Bay Territory under Part 15 of the EP&BC Act. This clarification is required because, unlike the detailed definitions provided in the EP&BC Act for Kakadu National Park (section 387(3)) and Uluru-Kata Tjuta National Park (section 344(3)), the proposed EP&BC Act does not define 'Commonwealth reserve within the Jervis Bay Territory'. Notably, the definition in this Bill is not significantly clearer, as it fails to provide an exact description of the relevant area or the instrument under which the area is defined.

Item 14 repeals the definition of Jervis Bay National Park in the Jervis Bay Act. Item 15 amends section 9A of the Jervis Bay Act, which currently allows the Minister to declare that land within the Jervis Bay National Park and Jervis Bay Botanical Gardens is Aboriginal land. This item substitutes the name 'Booderee National Park' for 'Jervis Bay National Park' and 'Jervis Bay Botanic Gardens'. Although this appears to suggest that the Booderee National Park incorporates both the previous national park as well as the botanic gardens, the Explanatory Memorandum indicates this is not the case. All land in the Jervis Bay Botanic Gardens has already been granted to the Wreck Bay Council as Aboriginal land. Therefore a reference to the gardens in this section is no longer relevant.

Item 18 amends section 35 of the Jervis Bay Act which is concerned with prohibiting the Council from granting a lease of Aboriginal land within the Jervis Bay National Park or the Jervis Bay Botanic Gardens by substituting the terms 'Booderee National Park or the Booderee Botanic Gardens'. 'Booderee Botanic Gardens' is not defined in this Part, but is defined in item 1 of Schedule 7 of the Bill as the part of the 'Australian National Botanic Gardens' in the Jervis Bay Territory. Section 3 of the Jervis Bay Act provides that the 'Australian National Botanic Gardens' means a particular area specified by Proclamation, and that the 'Jervis Bay Botanic Garden' is the part of the Australian National Botanic Gardens that is in the Jervis Bay territory. Therefore, in fact the Jervis Bay Botanic Gardens is the same as the Booderee Botanic Gardens.

Items 16, 19 and 22 replace references to the Director of National Parks and Wildlife in relation to the lease of Aboriginal land from the Wreck Bay Aboriginal Community Council with references to the Commonwealth. This raises significant legal issues concerning the operation of the lease and political issues of joint management, which are discussed in the Concluding Comments section.

Item 21 and 23 provide that the replacement of the Director as lessee with a reference to the Commonwealth does not require the Council and the Commonwealth to enter into an agreement if there was an agreement in force between the Council and the Director prior to the commencement of the EP&BC Act.

Item 24 repeals section 38C, which currently relates to the granting of a lease of Aboriginal land within the Jervis Bay National Park or the Jervis Bay Botanic Gardens to the Director, and replaces it with a section referring to the Booderee National Park and the Commonwealth. There is no explanation in the Explanatory Memorandum as to why no reference to Booderee Botanic Gardens is made.

Item 26 saves by-laws made under the Jervis Bay Act before the EP&BC Act commences where they apply a regulation made under the Parks Act.

Aboriginal Land Rights (Northern Territory) Act 1976

The Aboriginal Land Rights (Northern Territory) Act 1976 provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginal peoples. Items 27 to 30 repeal a number of terms used in this Act which will not be relevant when the EP&BC Act comes into force.

Item 28 repeals the definition of Director.

Items 31 and 32 repeal provisions which deem, either directly or constructively, an interest or estate to be held by the Crown in right of the Commonwealth. These provisions are redundant as item 8 of this Schedule transfers all interests, estates and so on of the Director to the Commonwealth.

Items 33 and 35 redraft provisions relating to grants of land to land trusts to take account of land that has already been granted under deed. The obligations and conditions required by the granting of a deed remain the same. Item 35 also replaces all references to the Director and the Parks Act with references to the Commonwealth and the EP&BC Act.

Item 40 amends section 12B (which currently relates to possible arbitration in relation to a disagreement between the Land Council and the Director) by replacing references to the Director with the Minister administering Division 4 of Part 15 of the EP&BC Act 1998, or the Secretary to the Department administering that Division. Both are named, as the arbitrator may request either to do a specific thing.

Item 42 amends section 12C so that the Minister may grant a lease to the Commonwealth (rather than the Director) where the land trust has not.

Item 44 amends section 40 (which relates to grants of exploration licences) by repealing a reference to 'Aboriginal land in a conservation zone'. It may be that this is merely technical, given that the term 'conservation zone' is not operative within the EP&BC Act.

Item 45 repeals certain subsections of section 50 which deem certain alienated Crown land to be unalienated, where all estates and interests not held by the Crown are held by the Director.

Australian Heritage Commission Act 1975

Item 50 amends the Australian Heritage Commission Act 1975, replacing a reference to the Director of National Parks and Wildlife with a reference to the Minister administering Division 4 of Part 15 of the EP&BC Act 1998.

Environment Protection (Alligator Rivers Region) Act 1978

The Environment Protection (Alligator Rivers Region) Act 1978 provides for the appointment of a Supervising Scientist for the purpose of protecting the environment in the Alligator Rivers region of the Northern Territory from the effects of mining operations. Items 51 to 66 make amendments to this Act.

Item 51 substitutes the Environment Secretary for the Director of National Parks and Wildlife, and item 53 defines the Environment Secretary as the Secretary of the Department which administers Division 4 of Part 15 of the EP&BC Act.

Items 57 and 64 repeal subsections 5A(2) and 24A(2). These provisions state that if a conservation zone is declared and an area is subsequently excised, the Supervising Scientist, or the Alligators River Research Institute, continue to have specific functions in relation to mining in that conservation zone until the Minister directs otherwise. The amendment in effect updates this by removing the reference to the conservation zone and requiring the Supervising Scientist or the Institute to be under the direction of the Minister.

Items 58-63 replace references to the Director with references to the Environment Secretary and, in the case of items 59 and 63 which relate to the composition of advisory or technical committees, the Environment Secretary or a person who is an officer or employee of the Secretary's Department.

Environment Protection (Northern Territory Supreme Court) Act 1978

Items 67-75 amend the Environment Protection (Northern Territory Supreme Court) Act 1978, so that references to the Director of National Parks and Wildlife are replaced with references to the Environment Secretary, and so that references are made to the EP&BC Act.

Great Barrier Reef Marine Park Act 1975

Items 75-80 consequentially amend definitions in the Great Barrier Reef Marine Park Act 1975. For example, item 79 repeals the reference prohibiting the Governor-General from proclaiming an area in the Great Barrier Reef Region as a reserve or park, replacing it with a provision which has the same effect under the EP&BC Act.

Koongarra Project Area Act 1981

The Koongarra Project Area Act 1981 varies the boundary of the Kakadu National Park for the purposes of the Koongarra Project. The Explanatory Memorandum to the Bill states that this Act has still not been proclaimed. Items 81-83 amend this Act, so that when proclaimed it will be linked to the proposed EP&BC Act rather than the Parks Act. Item 83 repeals subsection 3(4) which provides that 'any interest, other than an interest in respect of any minerals held by the Commonwealth shall be deemed to be held by the Director'. As item 8 of this Schedule vests all interests of the Director in the Commonwealth, this provision will be redundant.

Lands Acquisition Act 1989

Items 84-88 amend section 124 of the Lands Acquisition Act 1989, which deals with mining on certain land. The repealed definitions mark the boundaries of a pastoral lease area in the Northern Territory (the aggregate of the area comprising Gimbat and Goodparla), which has since been absorbed into Kakadu stage 3, and therefore has no further application.

Telecommunications Act 1997

Subclause 28(3) of Schedule 3 to the Telecommunications Act 1997 currently provides that before issuing a facility installation permit, the Australian Communications Authority (ACA) must consult the Director of National Parks and Wildlife if, in the ACA's opinion the issuing of the permit:

  • may be inconsistent with Australia's obligations under a listed international agreement, or
  • may have certain adverse impacts on the environment set out in that subclause, such as having an adverse effect on threatened species, flora or fauna.

Item 91 repeals this subclause, although the ACA's obligation to consult with the Environment Secretary (subclause 28(2)) remains. There are no specific criteria for such consultation.

Item 92 amends subclause 55(11) of Schedule 3 to the Telecommunications Act which provides that prior to giving a direction requiring a carrier to do, or refrain from, a specific act in relation to a facility (including its installation), the ACA must consult with the Australian Heritage Commission in certain circumstances and the Director of National Parks and Wildlife in all circumstances. Item 93 repeals the reference to the consultation of the Director of National Parks and Wildlife in all circumstances, leaving only the requirement to consult the Australian Heritage Commission when the matter concerns a heritage issue, including an indigenous heritage issue. This significantly narrows the scope for environmental scrutiny offered by this provision.

Wildlife Protection (Regulation of Exports and Imports Act) 1982

Items 93 and 94 have the effect of transferring the role of the Director of National Parks and Wildlife in administering the Wildlife Protection (Regulation of Exports and Imports Act) 1982 to the Environment Secretary.

Schedule 5-Whale Protection Act 1980

The Whale Protection Act 1980 provides for the preservation, conservation and protection of whales and other cetacea. Item 1 repeals this Act. Commentary on the effect of repealing this Act can be found in Bills Digest No. 135 1998-99 at pp. 42-43.

Items 3-4 ensure the continued operation of permits issued under the Whale Protection Act, and the continued appointment of inspectors appointed under that Act. Item 6 allows for a refund of fees a person paid when applying for a grant or transfer of permit under the Whale Protection Act if the Minister had not made a decision whether to grant the permit or transfer before the commencement of the EP&BC Act.

Item 5 inserts the civil penalty provisions of the proposed EP&BC Act concerning the taking of unauthorised actions in relation to matters of national environmental significance into the Antarctic Marine Living Resources Conservation Act 1981. (This Act relates to the conservation of marine living resources of the Antarctic and its surrounding seas).

Schedule 6-World Heritage Properties Conservation Act 1983

Item 1 repeals the World Heritage Properties Conservation Act 1983 (World Heritage Act).

Item 3 provides for the continued application of the World Heritage Act and all instruments made under it and in force immediately before its repeal, in relation to properties and sites that were declared by Proclamations under that Act as world heritage properties and sites. Sub-item 3(2) allows for the revocation of such Proclamations and for the variation or revocation of a consent made under the World Heritage Act.

Item 10 of Schedule 1 of the Bill makes it clear that Subdivision A of Division 1 of Part 3 of the proposed EP&BC Act (which relates to world heritage) does not apply to an act permitted by a consent given under the World Heritage Act. Sub-item 3(4) provides that it is possible to give a consent under sections 9, 10 or 11 of the World Heritage Act as it continues to apply. Therefore, it is possible to give a consent under the old regime, even when the EP&BC Act has commenced.

Item 9 provides that the Wet Tropics of Queensland World Heritage Area Conservation Act 1994 operates subject to the EP&BC Act or the World Heritage Act as it continues to apply to the Wet Tropics of Queensland World Heritage Area.

Schedule 7-Other Amendments

Items 1-32 make amendments to various Commonwealth Acts to give effect to the schemes established by the EP&BC Act.

Item 4 saves regulations in force under subsection 53(2) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986.

Items 7-10 amend the Environment Protection (Alligator Rivers Region) Act 1978 so that the definitions of 'ecosystem' and 'environment' are the same as those in the proposed EP&BC Act.

Item 11 amends the Great Barrier Reef Marine Park Act 1975 to require that before the Governor-General makes a Proclamation causing an area in the Great Barrier Reef Region to cease to be part of the Marine Park, the Minister must be satisfied that the Proclamation would be in accordance with a resolution passed by each House of Parliament on a motion, and that the notice of the motion was given no less than 15 sitting days before the motion was moved.

Item 12 provides that Proclamations under the Great Barrier Reef Marine Park Act 1975 as to what areas form part of the Great Barrier Reef Marine Park continue to have effect.

Items 19-20 amend the Resource Assessment Commission Act 1989 so that it uses the definitions of 'ecosystem' and 'environment' used in the EP&BC Act.

Telecommunications Act 1997

Items 23-31 make amendments to Schedule 3 to the Telecommunications Act 1997. Items 21-22 amend clause 2 of that Schedule so that it uses the definitions of 'ecosystem' and 'environment' used in the EP&BC Act.

Item 23 amends the Telecommunications Act with respect to the length of notice which a carrier must give to a land owner under subclause 17(4) of Schedule 3 before engaging in certain activities related to inspecting land. The Telecommunications Act currently requires a period of ten business days notice before inspection of land, installation of facilities or maintenance of facilities can occur. For inspection of land and related activities, the notice period is reduced to two days in certain circumstances. Item 23 changes the circumstances in which the period will be reduced to two business days notice. The period will be reduced where:

  • the activity is not inconsistent with Australia's obligations under a listed international agreement
  • could not have certain effects on matters of environmental significance
  • will not have an adverse effect on a streetscape or landscape, and
  • could not have certain detrimental impacts on the environment.

There is currently an exemption from this notice period where the land is a public place if engaging in inspection-related activities does not involve any material disturbance to the land, and no part of the land is a 'sensitive area', which is defined in existing subclause 17(8) to include, amongst other things, world heritage property. Item 24 substitutes this exemption with an exemption that applies where:

  • the activity: is not inconsistent with Australia's obligations under a listed international agreement
  • could not have certain effects on the environment
  • will not have an adverse effect on a streetscape or landscape, and
  • could not have certain detrimental impacts on matters of national environmental significance.

These requirements are cumulative. The amendment applies to activities which carriers intend to commence at least ten business days after the EP&BC Act commences (Item 25).

Items 26 and 27 amend subclause 27(7) to insert additional criteria to which the Australian Communications Authority must have regard when determining the environmental impact of the installation, maintenance or operation of facilities before issuing a facility installation permit. The new criteria are whether the issuing of a permit could have an adverse effect on a listed migratory species, or will have or is likely to have a significant impact on the environment in a Commonwealth marine area, or Commonwealth land (item 26) or a declared Ramsar wetland (item 27). The amendments made by items 26 and 27 apply to applications for facility installation permits made after the EP&BC Act commences (item 28).

Items 29 and 30 insert the additional criteria from items 26 and 27 into subclause 55(2) of Schedule 3. This subclause applies to the situation where a carrier proposes to commence installation of a facility before 1 January 2001.

Schedule 8-Miscellaneous

Item 1 allows the Governor-General to make regulations under the proposed Environmental Reform (Consequential Provisions) Act 1998.

Item 2 provides that:

If, apart from this item, the operation of this Act would result in an acquisition of property from a person that would be invalid because of paragraph 51(xxxi) of the Constitution ... the Commonwealth must pay the person a reasonable amount of compensation.

Paragraph 51(xxxi) of the Constitution grants the Parliament:

powers to makes laws ...with respect to ... the acquisition of property on just terms ... for any purpose for which the Parliament has power to make laws.

It is unclear why this item specifies that the Commonwealth will be required to pay the person a 'reasonable amount of compensation'. The Constitution requires 'just terms' in such circumstances, which may extend to procedural requirements. The phrases 'reasonable amount of compensation' and 'just terms' are not commensurable. If the intention is to reduce the amount of compensation to a level lower than 'just', this will be invalid. However, if the effect is that 'reasonable' is in excess of a determination of 'just' this may be valid.

The reference to 'item' rather than 'section' within the proposed section appears incorrectly drafted.

Concluding Comments

Objects of a consequential amendments Bill

The Office of Parliamentary Counsel has advised that although there is no formal limitation on the content or scope of a 'consequential amendments' Bill, such a Bill would usually contain provisions required to implement a new legislative scheme and would not normally contain provisions (technical or otherwise) that were unrelated to the scheme's establishment.

This Bill implements a range of necessary amendments that are consequential to the implementation of the EP&BC Bill. However the Bill also makes a range of other amendments which can be interpreted as substantial new proposals which supplement, rather than arise from, the EP&BC Bill. This raises issues as to the adequacy of consultation and scrutiny of these substantive measures by all relevant stakeholders. On that point, it is notable that the current Bill was not included in the Senate Environment, Communications, Information Technology and the Arts Legislation Committee's inquiry into the EP&BC Bill 1998 until 24 March 1999. The Committee reported on 27 April 1999.

Indigenous peoples' concerns

The most significant criticisms of the Bill have arisen from indigenous stakeholders, particularly the Boards of Management of Kakadu National Park(3) and Uluru-Kata Tjuta National Park(4) and the Wreck Bay Aboriginal Community Council.(5) It appears that although it was mentioned in the Government's 1998 Consultation Paper that the Parks Act would be repealed, it was not clearly indicated that central aspects of that Act would not be replaced.

Further, this Bill makes other significant new amendments related to indigenous interests that are not linked to the repeal of that Act.

Joint Management

The overarching concerns of indigenous groups relate to the Bill's disregard for the principles of joint management. Joint management is central part of the contractual arrangements that lease back to the Commonwealth the indigenous owned land in Kakadu National Park, Uluru-Kata Tjuta National Park and Wreck Bay. It has been indicated that such contractual arrangements would not have been entered into without the legal guarantee of the principles of joint management. The Kakadu Board of Management has stated that the key aspect of joint management is the process of negotiation and empowerment.

We believe joint management to be a developing process, a process involving commitment from both parties to trust each other, to talk to each other and to work side by side ... Management of our land is closely linked to management of our social, health and cultural needs. There are a lot of different people who want to take something or make money from our land and we have to make sure they do the right thing ... (6)

Dr David Lawrence, in a Department of the Parliamentary Library Research Paper, has similarly described joint management:

From the perspective of traditional Aboriginal owners, joint management is a matter of process, not structure, and an aspect of community development rather than a specific conservation agreement. ... The process of joint management is the on-going process of consultation and negotiation leading from the foundations provided by structural guarantees towards the publicly-stated and identifiable goals of conservation and protection of the natural and cultural heritage in accordance with the needs and aspirations of the traditional owners. ... Failure to recognise this can result in distrust, disharmony and dissatisfaction.(7)

Given the centrality of these contractual principles, the Central Land Council has stated that the lack of negotiation on key aspects of this Bill is 'coercive and pre-emptive of the existing rights of traditional owners.'(8)

Abolition of the position of Director of National Parks and Wildlife

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 and in Commonwealth waters. The Director is also the lessee of Booderee National Park, Kakadu National Park and Uluru-Kata Tjuta National Park from the traditional owners.

This Bill abolishes the position of Director of National Parks and Wildlife, replacing it with the Secretary of the Department of Environment and Heritage in right of the Commonwealth. This reform was not clearly identified, nor consulted upon, with traditional owners prior to the introduction of the Bill. Traditional owners have identified three key concerns in relation to this reform:

  • the loss of the Director's independence
  • the effect on day-to-day joint management, and
  • the compulsory transfer of the Parks' leases from the Director to the Commonwealth without the consent of traditional owners as required under the leases.

Loss of the Director's independence and effect on joint management

The Kakadu Board of Management has strongly argued that removing an independent Director will strengthen the political control over the Park, and will undermine the independent operation of joint management and the excellence, experience and scientific integrity of the institution of the Director. The Central Land Council has further stated that:

[t]he Minister is already responsible to the Parliament for the administration of the [Parks] Act. The Director is also responsible - directly to the Parliament - for the discharge of their functions under the Act. If the Minister were concerned about accountability to Parliament for the management of Commonwealth parks and reserves, he would be in favour of retaining the present structure.(9)

The Uluru Board of Management also strongly argued that current joint management arrangements established in 1986 under the terms of the lease governed by the Parks Act and the Aboriginal Land Rights (Northern Territory) Act 1976 have an extremely successful history, are recognised internationally and are international best practice in the best interests of all constituents.(10) This successful day to day management may be jeopardised by the proposals in the Bill.

Compulsory transfer of the lease from the Director to the Commonwealth

In relation to Uluru-Kata Tjuta, Kakadu and Booderee National Parks, the Director is the lessee of the Park from the relevant Aboriginal Land Trust. At least in relation to the leases concerning Kakadu and Uluru-Kata Tjuta, these leases provide for the transfer of the lessee's interests only with the consent of the lessor. There has been no consultation or negotiation with the relevant Aboriginal Land Trusts and hence no consent for a change of the lessee. This lack of consultation again raises political concerns in relation to the operation of the joint management principles of the park.

The legal ramifications concerning this absence of consent are equally serious. For example, it may give rise to rights of the lessors for termination for a fundamental breach of the contract. The Uluru-Kata Tjuta Board of Management has stated that such action would:

constitute a fundamental change to the original Joint Management arrangements, entered into in a spirit of mutual trust and good faith, and in fact may jeopardise the Lease entirely.(11)

Similarly, the Wreck Bay Aboriginal Community Council which has entered into similar lease arrangements with the Director has stated that the fact they have never been consulted appeared:

quite contrary to the spirit of the lease and joint management co-operation ... and this is just unacceptable to us, if the lease and joint management are to continue.

As stated by the Central Land Council, the 'Bill runs the unnecessary risk that the Land Trust will take action to terminate the lease'.(12)

Addition of a Northern Territory Board Member on the Kakadu and Uluru-Kata Tjuta Boards of Management

In relation to the proposal to place an additional member on the Kakadu and Uluru-Kata Tjuta Boards of Management, the Explanatory Memorandum states at p. 15 that:

The aim of adding a Northern Territory representative to the Boards is to deepen the Northern Territory Government's understanding of the Parks and the service and infrastructure needs of the Aboriginal people within the Parks. A Territory representative will also bring knowledge of values in abutting Territory parks and improve coordination with the management of these parks. There is no intention to diminish the power of Aboriginal communities in joint management and the Aboriginal majority on the Boards will be preserved. The proposed changes do not represent any devolution of management responsibility form [sic] the Australian Government to the Northern Territory Government. On-ground joint management will not be affected.

This proposal was subject to no negotiation with traditional owners or the relevant Boards of Management, again raising the criticism that such action is coercive and against the spirit and practice of joint management. As stated by the Central Land Council:

The employment of coercive mechanisms, where consensual mechanisms are already available, is unnecessarily heavy-handed. If traditional owners do not favour the amendment ... amendments should not be forced on them. To do so is likely to harm the spirit of joint management.(13)

The Kakadu Board of Management raised further concerns about the suitability of such an arrangement given the historical hostility of the Northern Territory Government to indigenous interests, particularly in relation to management of land.(14)

Traditional use of land and water by Aboriginals

A further concern with the Bill was its failure to replicate in the proposed EP&BC Act the traditional land usage rights established in section 70 of the Parks Act. Section 70 provides that:

(1) Subject to subsection (2) and to the operation of this Act in relation to parks, reserves and conservation zones, nothing in this Act prevents Aboriginals from continuing, in accordance with law, the traditional use of any area of land or water for hunting or food--gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

(2) The operation of subsection (1) is subject to regulations made for the purpose of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals.

The failure to replicate this particular provision in the EP&BC Bill raises complex legal issues. This repeal raises the question whether such traditional use is tied to a legal right that comes within the broad definition of 'property' for the purposes of section 51(xxxi) of the Constitution (which relates to acquisition of property on just terms). For example, such a right may arguably be a native title right. If it is 'property', repealing section 70 may amount to an acquisition of property for which just terms compensation is required. Professor Marcia Langton has raised a similar issue.(15) The result of this legal complexity may be litigation, which is socially and administratively costly, and which may result in the Commonwealth paying significant financial compensation and other requirements.

There is no evidence in any of the extrinsic materials concerning the Bill that this possible outcome has been considered. In order to avoid such an apparently unforeseen consequence, it would appear appropriate to replicate the equivalent of section 70 in the EP&BC Bill.

Amendments to the Australian Heritage Commission Act 1975

The Council of Australian Governments' 1997 Heads of Agreement of Commonwealth/State Roles and Responsibilities for the Environment, which provides the policy basis for the EP&BC Act, states that the Commonwealth and State Heritage Ministers would develop a co-operative national heritage places strategy. The Government's environment reform 1998 consultation paper proposed the introduction of a new heritage protection law at a date following debate of the EP&BC Bill.

This anticipated new Heritage Bill proposal has not been introduced into Parliament. Given this, it seems inappropriate to remove the links between the Commonwealth Environment Minister and the Australian Heritage Commission in relation to actions that may impact on heritage areas. In order to avoid the creation of a regulatory vacuum on these issues, it may be advisable to continue the operation of the EPIP Act in relation to heritage matters until a new heritage regime is introduced. Notably, this 'savings' regime for the EPIP Act is already deemed to continue in relation to certain items in Schedule 1.

It also seems an inappropriate use of a consequential amendment Bill to reform an Act not affected by the main EP&BC Bill.

Repeal of Biological Control Act 1984

The Explanatory Memorandum states at page 12 that:

[t]he new Act sets up a comprehensive scheme for the assessment of any action that is likely to have a significant impact on a matter of NES, or the environment if the action is a Commonwealth action or impacts on Commonwealth land. The links with the Biological Control Act 1984 are therefore no longer appropriate or necessary.

This may be contentious. For example in relation to invasive species, which include pests as defined under the Biological Control Act, it is notable that Part 13 of the EP&BC Bill (relating to species and communities) makes no mention of invasive species other than those that pose a threat to endangered species or listed ecological communities (see Part 13, Division 1). 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 communities. Additionally, as the EP&BC Bill restricts Commonwealth involvement in environmental matters to only six nominated matters of national environmental significance, it would be possible to have an invasive pest which causes significant national environmental damage but may not be caught by the provisions of the EP&BC Bill.

Consideration could be given to retaining the links between the Biological Control Act and Commonwealth environmental laws in some form to ensure adequate national scrutiny of such issues.

Amendments to the Land Acquisition Act 1989

The amendments in relation to the Land Acquisition Act do not replace the EPIP Act references with links between that Act and the EP&BC Bill. It is unclear why such continuity has not been provided. In relation to the deliberations of the AAT, although the Explanatory Memorandum states that the subsection 'is no longer relevant', it is not inconsistent with the structure of the EP&BC Bill for the AAT to consider a relevant inquiry under the EP&BC Bill in relation to compulsory acquisitions.

It is also unclear why the proposals in relation to the compulsory acquisition of public park land have removed the specifically designated role for Parliamentary scrutiny of such acquisitions and provide no environmental prerequisites for State and Territory consent to such acquisition. It may be that the previous rationale for such requirements related to the importance of broad consideration for compulsory acquisitions of areas of general public use. Notably, State and Territory Governments stand to financially benefit from compulsory acquisitions in relation to the constitutional requirements of 'just terms' compensation for such acquisitions. It would also appear that such changes are substantive rather than consequential to the EP&BC Bill.

 

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. R. Fox, Ranger Uranium Environmental Inquiry, AGPS: Canberra, 1976.

  3. 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, Submissions, Vol. 10, p. 2272.

  4. Uluru-Kata Tjuta National Park Board of Management, Submission No. 616, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill, Submissions, Vol. 10, p. 2290.

  5. Wreck Aboriginal Community Council, Submission No. 263, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill, Submissions, Vol. 4, p. 822.

  6. Kakadu Board of Management Submission, op. cot., p 2279 and p. 2277.

  7. Dr David Lawrence, Managing Parks/Managing 'Country': Joint Management of Aboriginal Owned Protected Areas in Australia, Research Paper No. 2 1996-97, Department of the Parliamentary Library, p. 2.

  8. Central Land Council, Supplementary Submission to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill (unprinted) p. 1.

  9. Central Land Council, Supplementary Submission, op. cit., p. 1.

  10. Uluru-Kata Tjuta Board of Management Submission, op. cit., p. 2281.

  11. ibid., p. 2295.

  12. Central Land Council, Supplementary Submission, op. cit.

  13. ibid.

  14. Kakadu Board of Management Submission, op. cit., p. 2280.

  15. Centre for Indigenous Natural and Cultural Resource Management, Submission No. 263, Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry into the Environment Protection and Biodiversity Conservation Bill, Submissions, Vol. 10, p.2305.

 

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Krysti Guest and Fiona Walker
30 April 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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