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

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.

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

Passage History

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 38^th 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)

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)

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:

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:

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)

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:

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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).

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.

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).

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.

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.

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).

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.

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.

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