|
Navigation: Previous Page | Contents | Next Page
Chapter 6 - Other Issues
6.1
A number of other issues were drawn to the committee's attention during
the inquiry, and three are addressed here: the triggers in the Act for matters
of national environmental significance; review of ministerial decisions; and
departmental resources.
Triggers for matters of National Environmental Significance
6.2
The EPBC Act focuses on environmental protection of aspects of the environment
that are matters of National Environmental Significance.[1]
6.3
Numerous participants in the inquiry were concerned that there were
important threats to the environment that currently are outside the scope of
'national environmental significance'. Foremost amongst these was climate
change:
Mr Tupper—We believe that there needs to be a trigger that would
look at any significant impacts in terms of greenhouse gas pollution. We can
debate the nature of that trigger, but we believe that it needs to be a combination
of the carbon intensity of the proposal as well as the volume of emissions.[2]
Ms Walmsley - Regarding the second element of comprehensive
coverage, the bill as introduced to parliament fails to address the most
crucial and urgent environmental matters of national significance, namely,
climate change, over extraction of water and land clearing. It is critical that
additional triggers are added to address these issues. The legitimacy of the
regime is undermined if these fundamental issues continue to be ignored.[3]
Mr Smith—As many speakers have noted, the bill landed in our lap
in the last two weeks or so, and it is a large bill addressing all sorts of
matters, but the thing that it does not address, and the obvious thing, is
climate change. If you asked the ordinary person in the street: ‘Is climate
change a matter of national environmental significance?’ they would say yes.[4]
Mr Macintosh—I can understand if a government did not want to
put climate change in the legislation. It definitely needs some sort of
legislation. Preferably, I would like to see an emissions carbon trading scheme
set up under a separate piece of legislation. If they did that you would not
need anything in the EPBC Act, in my opinion. If you did not have an emissions
trading scheme, then it makes sense to have some sort of climate change
trigger, as they call it, in the legislation.[5]
Birds Australia is aware of the impacts of climate change,
habitat destruction and lower environmental stream flows. The amendments would
be more effective if these elements, and associated triggers, were incorporated
into the criteria for matters of national environmental significance.[6]
ASH strongly recommends that climate change (so-called
greenhouse effect) must become a trigger under the Act.[7]
We are also very concerned about climate change and would like
to see the EPBC take this environmental impact into account.[8]
6.4
The committee acknowledges the widely held view that climate change is a
matter of National Environmental Significance. However, the Act already
includes the capacity for additional triggers to be established. Accordingly,
these concerns are not relevant to consideration of the bill before the
committee. No amendment is required for a new trigger to be adopted.
Review of ministerial decisions
6.5
A person whose interests are affected by a decision to issue or refuse a
permit can apply to the Administrative Appeals Tribunal (AAT) for the decision
to be reviewed. Appeals to the AAT are different from appeals to the Federal
Court. Most importantly, the AAT conducts 'merits review', while the Federal
Court can only review matters relating to law. This means that the AAT is able
to 'stand in the shoes' of the original decision maker and consider all matters
that were relevant to the original decision. In contrast, Federal Court reviews
are confined to the issue of whether the original decision was made in accordance
with the law.[9]
6.6
The bill includes a number of clauses that removes the right of review
by the AAT of Ministerial decisions. New subsection 303GJ(2) removes review by
the AAT as an avenue of review for relevant decisions made personally by the
Minister. The explanatory memorandum noted that decisions made by a delegate of
the Minister remain subject to review by the AAT.
6.7
The bill removes the right of review for the following Ministerial
decisions to:
- issue or refuse a permit;
- specify, vary or revoke a condition of a permit;
- suspect or cancel a permit;
- issue or refuse a certificate under section 303CC(5) or a
decision of the Secretary under a determination in force under
section 303EU;
- make, refuse, vary or revoke a declaration under
sections 303FN, 303FO, 303FP in relation to international movement of
wildlife specimens (section 303GJ).
6.8
Some witnesses expressed concern about the removal of the right of
appeal through the Administrative Appeals Tribunal (AAT) against certain ministerial
decisions in relation to applications for protected species and
other listings:[10]
There are several amendments which remove the right of review by
the Administrative Appeals Tribunal (AAT) of ministerial decisions. Important
decisions must be subject to review if the EPBC regime is to be legitimate,
credible and accountable.[11]
6.9
ANEDO strongly opposed the removal of AAT review options for Ministerial
decisions.[12]
The Law Council of Australia argued:
If the Minister has exercised his discretion appropriately, in
accordance with the provisions of the bill, then the likelihood is that the
Administrative Appeals Tribunal will uphold his or her decision. But what if
the Minister has not exercised his discretion appropriately? Is there to be no
review? If the Minister believes in the integrity of this bill and the
integrity of his or her decision-making process, then he or she should not be
concerned to allow a judicial review of how he or she came to a decision
applying provisions of this bill.[13]
6.10
The Department pointed out that ministerial decisions involve the
complex balancing of competing interests and issues, and that it is appropriate
that such decisions are taken at the ministerial level:
Basically, the government believes that, with matters of high public
importance, decisions should be taken by the Minister and, as such, should not
be reviewable by an unelected tribunal.[14]
6.11
The Department set out in detail not only the need for some decisions to
be taken by an elected representative, but also highlighted the limited nature
of the proposed exemptions:
There is currently a limited range of decisions under the EPBC
Act that are subject to AAT jurisdiction. Such decisions are limited mainly to
permits – regarding listed threatened species and ecological communities;
listed migratory and marine species; cetaceans; and import and export of
wildlife. They also include decisions regarding declarations about wildlife
trade operations and wildlife trade management plans and issuing of a CITES
certificate. The overwhelming majority of these decisions currently subject to
AAT jurisdiction are made by public servants as delegates of the Minister.
The Government accepts that the ability of the community to
appeal the abovementioned administrative decisions when made by public servants
is an important right. This ability is being preserved. The AAT will have the
same jurisdiction as now in relation to any decisions made by public servants
as delegates of the Minister.
However, a small number of the permit and declaration decisions
noted above require careful balancing of competing interests and judgements.
The Government considers that where these decisions are sufficiently important
to be taken by the Minister as an elected representative, those judgement calls
should not be able to be overturned by an unelected tribunal such as the AAT.
Appeal rights to the Federal Court under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) will continue to apply to all
decisions under the EPBC Act, whether taken by the Minister or his or her
delegate.[15]
The committee is
satisfied with this response.
Departmental resources
6.12
Many witnesses to the inquiry expressed concerns that these amendments
are prompted by a lack of funding and personnel in the Department, rather than
a need to simplify or streamline.
Ms Stutsel—From our perspective, the act itself is one of the
best developed pieces of legislation that currently relates to environmental
approval processes for our industry, and I will limit my comments to the
experience of our industry. However, we found that it is actually the
administration of the act that poses more issues for us than the nature of the
act itself. There is a lack of resourcing for that administration that means
that processes are often not as clearly articulated to industry and that there
is the opportunity for companies to have a better handle on what the
expectations of the act are and perhaps not over-refer, as is our current
practice, which tends to delay the system even more. [16]
Resourcing is an issue in the heritage area...They seem to be
struggling both in terms of the quantum and also the quality and depth of expertise
they have to address the range of issues. They have been struggling to get
their system up and running and working effectively.[17]
Mr Berger— Many aspects of the bill appear to be a response to
inadequate resourcing of the Department of the Environment and Heritage. In
particular, the proposals to establish priority lists for threatened species
and ecological communities and to establish themes for nominations of matters
appear to be based on inadequate resources to actually implement the act as it
currently stands.[18]
Mr Glanznig—The block is not the red tape. The block is a lack
of resources. We make that point about lack of resources in our introduction. The
federal environment department has been too under-resourced to properly
implement the Act. In a sense, this bill is codifying a new regime which
essentially enables the department not to consider these types of nominations.
I go back, in particular, to the repeal of section 185 and the potential wiping
out of about 500 ecological communities for consideration. It is a resourcing
issue—that is definitely part of it. It is also a process issue, which is the
need to keep the current process to achieve the policy objective to come up
with a mature-threatened species list so that all assessed threatened species,
not just the charismatic mega fauna, can be afforded the protections under the
EPBC Act.[19]
Ms Ruddock—I do not think it is so much the dollars; it is just
the resources and the time to take it on. They are also looking at cases across
the country. I think they have four people in their enforcement section. That
is the difficulty that they have.[20]
ANEDO submits that instead of addressing the backlog of nominations
by simply repealing section 185, it would be more appropriate to implement and
fully resource a program for DEH and the Scientific Committee to address
outstanding nominations and lists. This should involve additional staff and
resources for an intensive period.[21]
6.13
The committee recognises that concern about departmental resourcing
levels was expressed by diverse stakeholders. It notes that one of the purposes
of the reforms is to make environmental protection and project approval
processes more streamlined and efficient, and some improvements in resourcing
will come from these changes. However, the committee has some sympathy with the
concerns expressed by participants in the inquiry
Recommendation 3
6.14
The committee recommends that the Government review the level of resources
made available for the Department's administration of the Act.
Senator Alan Eggleston
Chair
Navigation: Previous Page | Contents | Next Page
Comments to: web.senate@aph.gov.au
Last reviewed 21 November 2006 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
