WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Annex A
Endnotes
Contact Officer and Copyright Details
Environment Protection and Biodiversity
Conservation Bill 1998
Date Introduced: 2 July 1998
House: The Senate
Portfolio: Environment
Commencement: On a day to be fixed by
Proclamation. If not proclaimed within six months, than the
legislation automatically commences six months after the date of
Royal Assent.
To establish a
new legislative framework for Commonwealth environmental law.
The Minister for the Environment, Senator the
Hon. Robert Hill, has criticised the existing Commonwealth
environmental laws on the basis that they do:
-
- 'not ensure high environmental standards in the areas of
Commonwealth responsibility'
-
- 'not provide the community with certainty as to the
Commonwealth's role'
-
- 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.(1)
In the Second Reading Speech for the Bill,
Senator Hill notes that the Bill implements the COAG Agreement of
1997 and provides:
[a] framework for a more effective national
approach to environmental management, ensuring resources are
focussed on delivering better environmental outcomes at all levels
of government. The Commonwealth's role in this national approach
will, for the first time, be clearly and logically defined.(2)
The existing acts that are to be replaced by the
Bill are the:
-
- Environment Protection (Impact of Proposals) Act
1974
-
- Endangered Species Protection Act 1992
-
- National Parks and Wildlife Conservation Act 1975
-
- Whale Protection Act 1980; and the
-
- World Heritage Properties Conservation Act 1983.
The Bill will therefore become the primary piece
of Commonwealth legislation dealing with the environment.
Environmental issues like 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. Some
issues are dealt with in other proposed legislation. For example,
the issues of land clearing and forest management are addressed to
an extent in the regional forest agreements process supported by
the Regional Forest Agreements Bill 1998. That Bill was introduced
into the House of Representatives on 30 June 1998 and is currently
before the Parliament. The remaining issues are either not
addressed or are addressed in State and Territory legislation.
Constitutional Matters
In 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 generic concept was not considered in the
allocation of power'.(3) There are, however, a number of powers
open to the Commonwealth to enact laws concerning the environment.
These are:
-
- the corporations power
-
- the taxation power
-
- the trade and commerce power
-
- the external affairs power; and
-
- the power to make financial grants to the States.
And to a lesser extent:
-
- the Territories power
-
- powers over quarantine
-
- the export control power
-
- powers to control fisheries beyond territorial limits; and
-
- the power to make laws for 'the people of any race'.
In the past, the corporations power and the
external affairs power have been the most heavily used by the
Commonwealth to enact laws with respect to the environment.
Relevant International Law
Australia is a party to a number of multilateral
and bilateral treaties relating to the environment, conservation
and heritage. Some of the more prominent multilateral ones are:
-
- Convention on Wetlands of International Importance
especially as Waterfowl Habitat (the Ramsar
Convention)(4)
-
- Convention on the Conservation of Migratory Species of Wild
Animals (the Bonn Convention)(5)
-
- Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES)(6)
-
- Convention on Biological Diversity (the Biodiversity
Convention)(7)
-
- United Nations Framework Convention on Climate
Change(8)
-
- Convention for the Protection of the World Cultural and
Natural Heritage(9)
-
- United Nations Convention on the Law of the Sea,(10)
and
-
- The Antarctic Treaty system.(11)
The above treaties oblige Australia at the
international level to protect, for example, Australia's
biodiversity and its unique environmental assets like the World
Heritage listed Great Barrier Reef, Kakadu National Park and Lord
Howe Island.
Australia: State of the Environment
Report 1996
The State of the Environment Report (SOE Report)
claims to be the 'first ever independent and comprehensive State of
the Environment Report for Australia' and was prepared by an
independent advisory council together with seven 'expert' groups
comprising over 200 eminent scientists and other experts.
The SOE Report identified some serious
environmental problems in Australia, the most serious being the
loss of biological diversity. The Report states:
Australia's record of mammal species extinction
is the worst for any country. In the past two centuries, the
country has lost ten species of the original marsupial fauna of 144
species and eight of the 53 species of native rodents. More than
one hundred mammal species are considered endangered, vulnerable,
or potentially vulnerable.(12)
Other problems identified included the loss of
old growth forests to logging, soil erosion and salinity and inland
waters management.(13)
Some positive observations were also made in the
SOE Report. For example, it noted that Australia did not have, as
many industrialised countries do, a significant problem with sulfur
dioxide and acid rain. Also urban drinking water in Australia was
generally very good and oceans and estuaries that were not near
major cities or coastal developments were generally in good
shape.(14)
There were a number of areas mentioned in the
report where Australia was perceived as setting an international
example:
The listing of natural areas and cultural
landscapes under the World Heritage Convention, and their
subsequent protection, is a real success story, as is the
increasing provision for other forms of reserve status, and the
strengthening of State and Territory heritage legislation.(15)
And:
Some of our structural solutions to complex
management problems, such as the Great Barrier Reef Marine Park
Authority, the Murray-Darling Basin Commission and the Board of
Management of Uluru-Kata Tjuta, are recognised
internationally as good models of response.(16)
The Bill will replace the World Heritage
Properties Conservation Act 1983 with a new regime defined in
Part 15 Division 1.
Environmental Impact Assessments: Good
or Bad?
In his article Some Elements of Effective
Environmental Laws, Australian environmental lawyer Brian
Preston argues that:
Environmental factors need to be taken into
account as early as possible in the planning process to avoid
irreversible environmental damage or costly reformulation of the
project.(17)
As a result, it is common for environmental laws
to require the preparation of an Environmental Impact Statement
(EIS) or an Environmental Impact Assessment (EIA) or equivalent
study. That document is then taken into account in the
decision-making process. Under the Environment Protection
(Impact of Proposals) Act 1974, (the EPIP Act) the
Environment Minister is, once a proposal has been referred to him
or her from the action Minister, able to order either an EIS or a
Public Environment Report (PER), depending upon the degree of
scrutiny required for the proposed project. The present Bill also
contains provisions that will require either a PER or an EIS in
certain circumstances (Divisions 5 and 6).
Division 7 of the Bill sets out a procedure for
holding an inquiry into the relevant impacts of proposed
action.
A very recent article reported the
Warnken/Buckley study which assessed 170 of the 175 tourism
developments subject to an EIA in Australia from 1979 to 1993 found
that whilst EIAs were a valuable public information tool, from a
scientific perspective they generally fell 'a very long way short
of the most basic standards'.(18) One of the conclusions of the
survey was that 'the quality of science practised in EIA is not
even remotely close to the technical limits of ecological
science'.(19) However, all EIAs were not equal and the best ones
were found to be those that monitored 'projects within or adjacent
to the GBRMP [Great Barrier Reef Marine Park] and hence falling
under the jurisdiction of the federal (Commonwealth)
government'(20). The Warnken/Buckley study found that:
most EIA documents make remarkably few testable
predictions and even fewer are actually tested through subsequent
monitoring programmes.(21)
Warnken/Buckley expressed the view that properly
conducted EIAs could be very effective:
there is nothing fundamentally wrong with EIA
processes; they are simply not being used effectively.(22)
In their opinion, EIAs were commonly
underfunded, performed by people who were not specifically
qualified in the appropriate scientific field and who did not use
the best available scientific techniques. To overcome such defects,
Warnken/Buckley argue that each EIA should ideally contain a
statement outlining:
-
- the environmental consultant's (appropriate) specialist
qualifications
-
- a statement by the environmental consultant as to whether or
not, in their view, the 'level of study funded was appropriate to
the likely significance and impacts', and
-
- the comments of the independent peers (forwarded independently
to the assessment agency) reviewing each contribution to the
EIA.
The model used by the GBRMPA for independent
peer review was supported by Warnken/Buckley who noted that
independent peer review had been done there 'for a number of years
with considerable success'.(23) The Bill does not address issues
like environmental consultant's qualifications, the level of study
funding or independent peer review but it does provide an
opportunity for public comments on the draft PER or the draft EIS
when those assessments are required by the Bill.
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 of
'national environmental significance'. The term 'national
environmental significance' is not defined in the Bill. The Bill
also aims to promote:
-
- ecologically sustainable development
-
- the implementation of Australia's international environment
responsibilities
-
- the conservation of biodiversity; and
-
- a cooperative approach to the protection and management of the
environment between governments, the community and
land-holders.
The second part of the clause states that the
appropriate role for the Commonwealth is a focus on matters of
national environmental significance and refers to a list of things,
including intergovernmental cooperation, which is to be achieved
via the accreditation of State and Territory processes and/or
bilateral agreements.
Clause 4 binds the Crown in
each of its capacities but exempts the Crown from prosecution for
any offence under the proposed legislation.
Chapter 2 Part 3 Clause 12
provides that actions which will have or are likely to have a
significant impact on the world heritage values of a World Heritage
listed site attract a civil penalty unless they were done pursuant
to an approval (see Part 9 below) or unless they fell within the
description of an action that the Minister had decided was 'not a
controlled action'. The penalty for an individual is 5,000 penalty
units or $550 000 (one penalty unit currently being equivalent to
$110 according to section 4AA of the Crimes Act 1914).
Australia has international obligations under
the Convention for the Protection of the World Cultural and
Natural Heritage to protect the eleven Australian properties
that are already inscribed on the World Heritage List. The
properties are the Great Barrier Reef, Kakadu National Park, the
Willandra Lakes Region of NSW, 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. These sites fall within the definition in
clause 13 of a 'declared World Heritage
Property'.
Clause 14 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.
There is no provision in the Bill to make these declarations of the
Minister disallowable instruments. However, if the Legislative
Instruments Bill [No. 2] 1996 is enacted there may still be
Parliamentary scrutiny of the declarations.
Clause 16 deals with the
protection of wetlands declared under the Ramsar convention (see
list at Annex A). 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. The phrase
'ecological character' is defined in the Bill to be the same as the
Ramsar definition (subclause 16(3)). Whilst the
Ramsar convention doesn't contain a definition in its text, article
3 makes it clear that 'technological developments, pollution or
other human interference' can change the ecological character of a
site.
The penalties for taking an action which
significantly affects a Ramsar site without due authorisation are
the same as for World Heritage sites (clause 12 above), which, for
a body corporate is a maximum of 50,000 penalty units (or $5.5
million).
Clause 18 prohibits actions
taken without the requisite approval which will have a significant
impact on threatened species or communities. The Bill prohibits the
taking of an action that has, will have or is likely to have a
significant impact on a critically endangered species, an
endangered species, a vulnerable species, a critically endangered
community, an endangered community or a species that is extinct in
the wild. There are no penalties for taking an action that will
have a significant impact on a listed vulnerable ecological
community. The civil penalties for those matters that are covered
are the same as for World Heritage sites and Ramsar sites
above.
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.
The civil penalties are the same as for World Heritage sites and
Ramsar sites above. Clause 209 prescribes what
will constitute a listed migratory species and these are compiled
by the Minister, gazetted and are also disallowable instruments
under section 46A of the Acts Interpretation Act 1901.
Subclause 209(3) provides that the list can only
include native species listed under a Gazetted international
agreement, species listed under the Bonn Convention (whose range
includes Australia), species listed under the Agreement between
the Government of Japan and the Government of Australia for the
Protection of Migratory Birds and Birds in Danger of Extinction and
their Environment and those species listed under the
Agreement between the Government of Australia and the
Government of the People's Republic of China for the Protection of
Migratory Birds and their Environment.
Clauses 16, 19 and 20 all
contain a provision which allows actions which would otherwise be
prohibited (with respect to a Ramsar site, a threatened
species/community, or a listed migratory species) to go ahead if
they are allowed under a bilateral agreement (see discussion under
Part 4 below) or a conservation agreement (see discussion under
Part 9 below).
Chapter 2 Part 3: Division 1 Subdivision
E requires approvals for constitutional corporations, the
Commonwealth or Commonwealth agencies to take nuclear actions,
which are defined widely in clause 22. For
example, modifying a nuclear installation is a nuclear action for
the purposes of the Bill. 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).
This proposed definition is substantially the
same as the one used by the International Atomic Energy Agency.(24)
Nevertheless, by drafting the Bill in this way, if Australia did
build any of those facilities, they would be covered by the Bill
without further amendments being required.
Subdivision F Clause 23
similarly protects the marine environment in Commonwealth marine
areas and the immediately adjacent waters by prohibiting the taking
of an unauthorised action that has, will have or is likely to have,
a significant impact on the Commonwealth marine area. A
Commonwealth marine area is defined to include the waters of
Australia's declared EEZ (exclusive economic zone) which extend
200nm out from the 'baselines'(25) on Australia's coast line.
Chapter 2 Part 3 Division 2
prohibits the taking of an action on Commonwealth land (or on land
outside that will significantly affect a Commonwealth area) that is
likely to have a significant impact on the environment unless:
-
- the action is being taken under a Regional Forest Agreement or
Conservation Agreement
-
- the action is one declared by the Minister to be exempt from
this portion of the Bill.
Clause 27 makes it clear that
Commonwealth Marine areas are not included in the definition of
Commonwealth land.
Clause 28 requires an approval
for actions of the Commonwealth or its agencies which will have a
significant impact on the environment, unless those actions are
otherwise exempted in the Bill (eg in a bilateral agreement, a
conservation agreement or in a class of actions declared by the
Minister to be exempt).
Chapter 2 Part 4 Division 1
contains some of the exemptions in the Bill to the general
prohibition against the taking of actions which are likely to have
a significant impact on the environment. Where a bilateral
agreement is in force which covers the action taken by a State or
self-governing Territory an approval under Part 9 is not required
(clause 29).
Similarly, 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 allows the Minister
to 'delegate' to the Commonwealth or a Commonwealth Agency the
power to authorise actions in a specified class as long as the
Minister is satisfied that the decision maker will consider the
impacts the action has, will have or is likely to have on the
matter protected. A list of which matters are protected appears in
clause 34. Clause 33 has been
expressly criticised by the Environmental Defender's Office:
[Clause 33 will]...allow the Environment
Minister to side-step the Bill's approval mechanisms by effectively
allowing him or her to delegate the Department of Environment's
approval functions to other Commonwealth Departments - such as,
say, the Department of Primary Industries and Energy...[this can be
done] by way of declaration, without any public consultation.
Worse, the Bill does not provide for any guaranteed environmental
safeguards or any public consultation in the approval processes
which must be followed by those other Departments.(26)
Clause 37 provides that actions
permitted under a conservation agreement do not require approval
under Part 9. Conservation agreements are discussed below at page
20.
Chapter 2 Part 4 Division 4
extends an exemption from the need for Part 9 approval to
activities done in an area covered by a regional forest agreement
(RFA). If an RFA is in the process of being negotiated, this is
sufficient, under clause 39 for a Part 9 approval
not to be required. This is another portion of the Bill which has
drawn criticism from the Environmental Defender's Office:
These agreements [RFAs] have been and are being
negotiated without minimum standards for environmental impact
assessment or public participation. They cover a substantial part
of Australia's forests, which in turn provide habitat for a
substantial part of Australia's biodiversity. It is completely
unacceptable that Australia's "Biodiversity Conservation" Bill does
not apply to these forests.(27)
The RFAs drafted to date, while they may
technically include a review process, do not give the Commonwealth
an effective unilateral right to review the RFA. So one consequence
of this portion of the Bill is that the Commonwealth will not be
able to revise its decision and intervene in an RFA region to
prevent a particular activity taking place, without leaving itself
open to paying compensation. Given that scientific knowledge
nominally 'doubles' every ten years or so, it may be legislatively
difficult to implement assessment procedures which keep pace with
the latest scientific thinking.
Chapter 2 Part 4 Division 5
exempts certain actions taken in the Great Barrier Reef Marine
Park, in accordance with approvals under the management regime for
the Park, from the need for an approval under Part 9.
Bilateral Agreements
Chapter 3 Part 5 Division 1
deals with the use of Bilateral agreements between the Commonwealth
and a State or a self-governing Territory. Clause
44 lists the protection of the environment and the
promotion of conservation and ecologically sustainable use of
natural resources as two of the objects of the bilateral
agreements. Nevertheless, the Bill does not provide any minimum
environmental standards or environmental assessments for bilateral
agreements. In fact, paragraph 45(2)(a) notes that
a bilateral agreement may only provide for one or more of the
objects found in clause 44. Since one of these is
the minimisation of duplication between the Commonwealth and State
or Territory processes in the environmental assessment and approval
process by accreditation of State or Territory processes, it is not
clear to what extent environmental safeguards will apply. For
example, the existing State law in some jurisdictions has been
strongly criticised as being inadequate to protect the
environment.
There is no provision for public consultation or
public input in the process of accrediting State regimes via a
bilateral agreement. Therefore, potentially, this could operate to
exempt areas from the operation of the Act. This portion of the
Bill has been criticised as:
-
- containing almost no environmental safeguards
-
- providing no details about public participation
-
- giving the Minister an enormous discretion (particularly if the
regulations do not prescribe any or many criteria for the Minister
to meet under clause 50); and
-
- not insisting on best practice environmental criteria to be a
condition of accreditation.(28)
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'. The Bill sets a
five year maximum for the duration of a bilateral agreement
(clause 65) and provides that the Commonwealth
must review the agreement and report the outcome of the review to
the relevant State or Territory Minister, as well as publish it,
before the 5 years has elapsed. The Minister can only enter a
bilateral agreement if he or she is satisfied that the agreement
accords with the objects of the Act and meets any requirements
prescribed by the regulations (clause 50). The
efficacy of this will depend very much on the requirements imposed
on the Minister by the regulations.
Subdivision B imposes tighter
restrictions on bilateral agreements that have provisions which
relate to World Heritage properties, declared Ramsar wetlands,
migratory species, nuclear actions, threatened species and
threatened ecological communities and certain other prescribed
matters (clauses 51-56). For example, in relation
to World Heritage properties, the Minister must be satisfied that
the bilateral agreement is not inconsistent with Australia's
international obligations under the World Heritage Convention and
that the agreement will promote the management of the property in
accordance with Australian World Heritage management principles.
The World Heritage Convention obliges Australia to have a
Management plan for each listed property.
Chapter 3 Part 5 Division 3
determines in what circumstances a bilateral agreement may be
suspended or ended. Any person can bring a contravention of a
bilateral agreement to the Minister's attention although the
Minister can ignore vexatious, frivolous or unsupported complaints
(clause 57). 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, 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 to be suspended or cancelled. A minimum of
10 business days notice is required.
The Bill also 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 is likely to have a significant impact on any matter
protected by Part 3 (clause 60).
Environmental Assessments and
Approvals
Chapter 4 Part 6 contains the
environmental assessments and approvals regimes imposed by the
Bill. Clause 68 requires the person proposing to
take a controlled action to refer the proposal to the Minister
(alternatively a State or Territory government or agency, or a
Commonwealth agency may refer the proposal to the Minister or the
Minister may request such a referral).
Clause 74 obliges the
Environment Minister to inform any other Minister with
administrative responsibilities relating to the proposal and invite
them to provide information as to whether or not the proposal is a
controlled action.
The first thing the Environment Minister must
decide (clause 75) is whether the proposed action
is a controlled action for the purposes of the Bill. If the action
is a controlled action then Part 8 applies. An
'action' is defined in clause 523 to include a (or
an alteration of a) project, development, undertaking, activity or
a series of activities. '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 itemises a list of things that
are not to be regarded as actions for the purposes of the proposed
Act. These include decisions of the Commonwealth or of a
Commonwealth agency. Sub-clause 524(3) limits this
even further by making it clear that an action does not include a
Commonwealth or Commonwealth agency authorisation under the
Customs Act 1901, the Export Control Act 1982,
the Export Finance and Insurance Corporation Act 1991, the
Fisheries Management Act 1991, the Foreign
Acquisitions and Takeovers Act 1975, the Petroleum
(Submerged Lands) Act 1967, the Quarantine Act 1908,
or the Trade Practices Act 1974.
Chapter 4 Part 8 requires the
Minister to decide what relevant impacts the action has, will have
or is likely to have on the matters listed in Part
3. This process is circumvented if the controlled action
is covered by a bilateral agreement (clause 83) or
a declaration (clause 84).
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 assessing the impact is most
effective. Clause 86 requires the designated
proponent of an action to give the Minister the necessary
preliminary information. Clause 87 then obliges
him or her to decide whether:
-
- an assessment by a specially accredited process
-
- an assessment on preliminary documentation (Division
4)
-
- an assessment by public environment report (Division
5)
-
- an assessment by environmental impact statement
(Division 6); or
-
- an assessment by inquiry
is appropriate. There is also an obligation on
the Minister to consult with the relevant State or Territory.
Subclause 87(3) sets out what
the Minister must take into account. 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. However, there is no provision which
requires the Minister to assess the likely impact on the
environment or the likely impact on a threatened species or
ecological community. One could argue that if the proposal related
to a habitat that housed a critically endangered community then an
assessment on the preliminary documentation would not be
reasonable. However, without something in the Bill to direct the
Minister specifically to such environmental considerations it may
well be that such an assessment seems suitable.
Whatever the Minister's decision, it must be
published within 10 business days (clause 91).
Division 4 Clause
93 allows the Minister to require a designated proponent
to publish certain details about the proposal and seek public
comments on the proposal. However, if the Minister chooses not to
do this, the Secretary must still prepare the report just on the
preliminary documentation solely.
Chapter 4 Part 8 Division 5
deals with Public Environment Reports. The Bill leaves it open to
the Minister to 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.
Chapter 4 Part 8 Division 6
covers situations where an environmental impact statement is
required. When an EIS is required, clause 102
directs the Minister to prepare written guidelines for the draft
EIS to comply with. 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. Once the draft is done,
clause 103 requires it to be published and public
comments invited for a period of at least 20 business days.
Clause 104 then 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. There are
provisions in clause 105 which allow matters which
are commercial-in-confidence, or which relate to national security
to be omitted from the final copies of the report that are
otherwise available to any person upon request.
Chapter 4 Part 8 Division 7
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 produce written terms of reference.
The Commission of inquiry is able to determine its own procedures
to be followed and is not bound by the rules of evidence
(clause 109) but the hearings must 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, or both ($3,300) 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 owner or
occupier'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). 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
127).
Chapter 4 Part 9 Division 1 is
the critical portion of the Bill which deals with Ministerial
approval of actions.
Clause 130 obliges the Minister
to decide whether or not an assessment report is required (in 30
business days or longer if authorised by the Minister) or a public
inquiry (in 40 business days or longer). An assessment report is
defined in subclause 130(2) and includes reports
pursuant to bilateral agreements, accredited processes and other
specified matters.
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 131) or request further information from
the person proposing the action, the designated proponent or the
Commission of Inquiry whichever is applicable (clause
132).
Comparison with Existing Regime
This represents a radical departure from the
current regime regarding the Environment Protection (Impact of
Proposals) Act 1974. Under that Act, the action Minister is
required, when making any decision, to consider whether there is
likely to be a significant effect on the environment. If the answer
is affirmative then the action Minister must refer the matter to
the Minister for the Environment, who then assesses what level (if
any) of environmental assessment (whether an EIS or PER) is
required. This has meant that to date when the Commonwealth has
considered whether to approve a proposed foreign investment or
whether to grant an export licence etc the impact on the
environment has been considered.
The Bill removes all of these 'triggers' and
replaces them with triggers that catch actions which are likely to
have a significant impact on:
-
- The Commonwealth marine area
-
- World heritage properties
-
- Ramsar wetlands of international importance
-
- Nationally threatened species and ecological communities,
and
-
- Internationally protected migratory species.(29)
These triggers could be described as being
confined to either a nominated site or to a particular issue rather
than being general environmental triggers.
Approvals under the Bill
Once the Minister has all the necessary
information, he or she may approve the action with or without
conditions or not approve the action (clauses
133-4). The range of conditions that the Minister may
attach to the approval include things like requiring insurance to
be held, submitting to an environmental audit from time to time or
repairing damage done whilst taking the action. Section 99 of the
Constitution states:
The Commonwealth shall not, by any law or
regulation of trade, commerce, or revenue, give preference to one
State or any part thereof over another State or any part
thereof.
The Bill implements this by ensuring that in
attaching conditions to the approval of an action, the Minister
does not give a preference to one State or a part thereof
(clause 135). Clause 142 imposes
a penalty of 1000 penalty units for an individual or 10,000 penalty
units for a body corporate for breaching a condition.
The Bill also obliges the Minister to consider
economic and social matters in addition to the environmental matter
set out in Part 3 when making his or her decision.
Subclause 136(2) is important because it obliges
the Minister to take into account, for example, the principles of
ecologically sustainable development when making his or her
decision. These principles are spelled out in subclause
136(3). The core objectives are noted as being the need to
maintain intergenerational equity, to protect biological diversity
and 'maintain essential ecological processes and life-support
systems' and also the enhancement of 'individual and community
well-being' by 'following a path of economic development that
safeguards the welfare of future generations'. This expression is
somewhat hard to define as what constitutes economic development
that safeguards the welfare of future generations could mean a
greater emphasis being placed on creating short term wealth or
alternatively it could mean something else entirely. It may well be
an issue for the courts to develop in the absence of any solid
definition in the Bill.
In addition to the 'core objectives' there are a
number of other matter listed in subclause 136(3)
which are described as 'guiding principles'. Among these is the
precautionary principle and a number of economic
considerations.
Therefore, the Minister must consider the
assessment report (or equivalent), the core objectives, the guiding
principles and comments given by another Minister in answer to a
request by the Environment Minister. In addition, the Minister may
consider the person's history in relation to environmental matters
but that is all. Clauses 137-141 impose other
requirements on the Minister if the decision relates to a World
Heritage or Ramsar site or a threatened species etc.
Chapter 4 Part 9 Division 3
gives 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 (clauses 143-145).
Chapter 4 Part 10 Division 1
gives the Minister the power to agree on a strategic assessment.
This is another portion of the Bill which operates to exempt
certain matters from the approval process in Part 9. This was of
concern to the Environmental Defender's Office:
Cl. 146 allows the Minister to enter into an
agreement with any person concerning the assessment of actions
allowed under any 'policy, plan or program'. Where the Minister
does so, he or she can exempt the person from the assessment and
approval requirements of Parts 8 and 9 of the Bill. The Minister's
decision to enter into an agreement can therefore, in addition to
resulting in a special assessment process, be a de facto approval
for the actions.
Strategic assessment in this form could be an
extremely far-reaching tool for exemption. The terms 'policy, plan
or program' are not defined. They could include any privately
developed policy, plan or program relating to any matter. Worse,
there are almost no environmental safeguards built into the system
citation.(30)
The Environmental Defender's Office also pointed
out that in deciding to enter into an agreement under Part 10 the
Minister was not subject to public consultation on the report, no
environmental standards were specified in the Bill for the report
and there was no mechanism for review once an agreement was reached
(theoretically putting the actions beyond scrutiny for many
years).(31)
The Australian Fisheries Management Authority
(AFMA) is the Commonwealth statutory authority responsible for the
management and sustainable use of Commonwealth fishery resources.
Clause 147 obliges the AFMA to make strategic
assessment agreements with the Minister (described above) for the
assessment of fisheries currently managed under the Fisheries
Management Act 1991. This process must be done for all
fisheries within a 5 year period of the date of commencement of the
Bill.
Clause 150 requires the
assessment of fisheries that are currently managed under an
agreement between the Commonwealth and one or more States under
sections 71 or 72 of the Fisheries Management Act 1991
which allow the agreement to dictate whether State or Commonwealth
law applies to the given fisheries area. Clause
151 makes similar provision for areas managed under the
Torres Strait Fisheries Act 1984. If the Minister
responsible for the Fisheries Management Act 1991 agrees
with the Environment Minister that the impact on a fishery managed
under that Act is actually likely to have a more significant impact
on the environment than previously reported, a further assessment
can be done under clause 152.
Chapter 4 Part 11 Division 4
requires a Commonwealth agency or employee considering
approving:
-
- foreign aid for a project anywhere in the world that is likely
to have a significant impact on the environment
-
- the management of aircraft operations in airspace
-
- the adoption or implementation of a major development plan for
an airport, or
-
- another action prescribed by the regulations
to inform the Environment Minister of the
proposed action and consider that Minister's advice before issuing
the approval. The Minister can advise whether or not the agency or
employee should give the approval and if so, what conditions they
should attach or on any other matter relevant to the protection of
the environment (clause 163).
Chapter 5 Part 12 Division 1 is
the portion of the Bill which deals with the identification and
monitoring of biodiversity. Article 7 of the Biodiversity
Convention(32)obliges States to identify those components of
biological diversity that are important for its conservation and
sustainable use and monitor their use as well as identify processes
that are likely to have a significant adverse impact on the
conservation and sustainable use of biological diversity. The Bill
implements Article 7. Clause 171 allows the
Minister to give financial or other assistance to anyone who is
doing work relevant to the identification or monitoring of
components of biodiversity. In relation to Commonwealth land, the
Minister is obliged by clause 172 to have
inventories of components of biodiversity made within 5 years of
the date of commencement or from the date of the Commonwealth's
acquisition of the land whichever is the later.
In relation to marine areas, clause
173 requires an inventory of all dolphin and whale species
together with listed threatened species or ecological communities,
listed migratory species and listed marine species to be prepared.
This is to be done within 10 years of the date of commencement or
from the date that the area became a Commonwealth marine area
whichever is the later.
The Bill obliges the Minister to ensure that
these inventories are updated on a continuing basis (clause
174).
Chapter 5 Part 12 Division 2
deals with bioregional plans. Nothing in the Bill requires the
Minister to prepare a bioregional plan for a particular
Commonwealth area, however, if one is done, it can include
provisions about biodiversity, economic and social values,
mechanisms for community involvement and monitoring and review of
the plan (clause 176).
Chapter 5 Part 13 Division 1
provides that the Minister will list species, by instrument
published in the Gazette, that are extinct, extinct in the
wild, critically endangered, endangered vulnerable, or conservation
dependent.
Subclause 184(3) is equivalent
to the existing provision in the Endangered Species Protection
Act 1992 (subsection 18(3)) and allows the Minister to amend
the lists of threatened species etc by way of a disallowable
instrument. Although the Minister may not delete a species or
ecological community from a list until after he or she has
considered advice from the Scientific Committee and unless
satisfied that the species or community is no longer eligible to be
included on the list (clauses 187-89). The listing
process has itself been criticised partly because it requires a
positive act by scientific experts to identify a species(33) prior
to that species being placed on the list. This ignores the fact
that one of the great problems with biodiversity issues is that not
all species have been identified let alone studied to see whether
they are vulnerable. There can also be a problem with the general
public not easily being able to identify or distinguish a given
species from the scientific name promulgated on the list.(34)
Whales and Other Cetaceans
Chapter 5 Part 13 Division 3
The Whale Protection Act 1980 is one of the Acts to be
replaced by the Bill. This division of the Bill incorporates the
protections currently existing in the Whale Protection Act
1980.
Clause 225 establishes the EEZ
and certain other coastal waters (but not those currently under the
jurisdiction of a State or Territory) as the Australian Whale
Sanctuary.
Clause 229 makes it a strict
liability offence, punishable by 1000 penalty units or 2 years
imprisonment, or both to kill, injure, take, trade, keep, move or
interfere with a cetacean in the Sanctuary. However, clause
231 lists certain exemptions including if the person had a
permit authorising them to take the action which resulted in the
'offence', if the action was taken in an emergency and was
reasonably necessary to avoid a serious threat to human life or
property, if it was the result of an unavoidable accident etc.
Clauses 233-234 extend the offence to possessing
or treating unlawfully imported cetaceans. Clause
165 deals with the mechanism for assessing applications
for permits relating to whales, dolphins and porpoises.
Clause 236 exerts jurisdiction
over foreign whaling vessels by preventing them from coming into
Australian ports (unless there is an emergency or unless they have
the written permission of the Minister etc).
Subdivision F introduces a
permit system to allow a permit holder to take certain actions
regarding cetaceans that would otherwise contravene the Bill.
Clause 238 prevents the Minister from issuing a
permit unless he or she is satisfied that the proposed action will
either contribute significantly to the conservation of cetaceans
(an example being the herding of specimens for the purposes of
scientific research that will promote understanding and the
development of conservation measures) or that it will only
interfere with the cetaceans in an incidental way. An example of
this could be the conducting of sonic tests underwater which may
help oceanographers in their work but, as an incidental effect, may
interfere with the communication of cetaceans etc. The Minister is
prohibited from issuing such permits for the killing or taking for
live display of cetaceans.
A permit is also required for whale-watching and
the regulations will prescribe how that activity must be
conducted.
Clause 239 allows the Minister
to attach conditions to a permit (including varying them and/or
revoking them) and it is an offence under clause
240 for a permit holder to fail to comply with those
conditions.
Division 4 Subdivision A Clause
248 requires the Minister to compile and publish a list of
certain nominated marine species within 30 days of the commencement
of the Act. The clause nominates species like sea snakes, sea
kraits, seals and sea lions, crocodiles, dugongs, turtles,
seahorses and pipe fish and seabirds. The Minister may amend the
list but can only add to the list if he or she is satisfied that it
is necessary to ensure the long-term survival of the species.
Clause 251 requires the Minister to take into
account advice from the Scientific Committee before adding to or
deleting from the list.
Subdivision B introduces a
separate permit system for species other than cetaceans. As with
the permits described in subdivision F above, the killing, injuring
or taking etc of a marine species is prohibited unless done
pursuant to a permit.
Recovery and Threat Abatement
Plans
Chapter 5 Part 13 Division 5 Subdivision
A deals with the making and implementing of recovery plans
and threat abatement plans. Once a threatened species or threatened
ecological community has been listed, the Minister must make a
recovery plan and a threat abatement plan (clause
267). The Bill obliges the Minister to consult with the
relevant State or Territory to make joint plans unless the species
or ecological community is only found in a Commonwealth area.
Clause 268 prohibits a Commonwealth agency from
taking any action which contravenes a recovery plan or threat
abatement plan but does not specify any consequence of such
contravention.
Clause 270 sets out what a
recovery plan must include. The identification of necessary
habitat, populations of the relevant species or community are of
course included as well as a list of factors that will benefit the
survival of them. Paragraph 270(2)(g) also
requires that the plan identify 'interests that will be affected'
by its implementation.
The content of threat abatement plans is
different to recovery plans and clause 271
requires that they include, among other things, the objectives to
be achieved, the criteria by which such achievement is measured,
the actions needed to achieve the objectives and the estimated
duration and cost of the process.
Where a plan calls for the eradication of a
non-native species clause 272 requires the
Commonwealth to offer stock of that species to its 'native' country
(if it is a threatened species there) before taking steps towards
eradication of the species within Australia.
Clause 273 sets differing
timeframes for the preparation of a recovery play or threat
abatement plan depending on whether the relevant species or
community is critically endangered, endangered or vulnerable.
Advice from the Scientific Committee must be obtained and
considered by the Minister when finalising a recovery or a threat
abatement plan (clause 274) and also comments
received from the public (clause 276). The Bill
makes provision for the Minister to review plans at least every 5
years and gives the Minister the power to vary a plan after certain
requirements are met.
Subdivision B allows the
Minister to make wildlife conservation plans for listed migratory,
marine species or cetaceans found in the EEZ. The provisions of
clauses 285-298 are broadly similar to those for
the recovery or threat abatement plans described above. Once made a
Commonwealth agency cannot do something which would contravene the
plan, there are provisions for review, provisions requiring advice
from the Scientific Committee and comments from the public to be
taken into account. The Commonwealth may also provide assistance
(including financial assistance) to a person or a State or
self-governing Territory to implement a recovery, threat abatement
or wildlife conservation plan.
Chapter 5 Part 13 Division 6
deals with the control of access to biological resources and
clause 301 provides that the regulations will
govern such access.
Clause 302 allows the Minister
to give financial aid to other countries or to organisations to
help with the recovery or conservation in those regions of a
species that is listed in one of the international agreements to
which Australia is a party.
Chapter 5 Part 13 Division 8
allows for the making of regulations for the conservation of
biodiversity in Commonwealth areas. It is difficult to assess how
effective these will be without seeing them in detail. However, it
is probably reasonable to say that without taking a holistic
approach to biodiversity conservation (ie taking action Australia
wide and not just in Commonwealth areas) it will be difficult to
guarantee biodiversity protection.
Conservation Agreements
Chapter 5 Part 14 sets out how
conservation agreements may be made between the Commonwealth and
private landowners (whether individuals or corporations). There is
no provision for any negotiations for such agreements to be made
public. Whilst clause 466 provides that these are
reviewable every 5 years, the effect of a conservation agreement is
to exempt certain actions from the proposed Act.
Clause 305 prevents the
Minister from entering into a conservation agreement unless he or
she is satisfied that it will 'result in a net benefit to the
conservation of biodiversity'. However, nothing in the Bill assists
the Minister in assessing whether there will be a net benefit.
There is no requirement for advice from the Scientific Committee to
be obtained or considered. There is no requirement for any kind of
environmental assessment to be done, so it would seem that the
Minister may be making that decision from a considerably
disadvantaged position. Conservation agreements are not subject to
any public scrutiny either and can be negotiated confidentially. An
additional consideration is that from a scientific viewpoint, it
would be extremely difficult to quantify whether some action would
result in a net benefit to biodiversity conservation. This is
because, when assessing biodiversity, there are a very large number
of variables that can all impact upon each other making the actual
outcome very hard to reliably predict.
The Environmental Defender's Office notes
that:
Conservation agreements can be a powerful tool
to encourage good environmental outcomes on private land. However,
the Bill's provisions...contain a number of significant
flaws....[The] Bill provides that conservation agreements can
contain provisions exempting the person who has signed the
agreement from the need for Commonwealth environmental approval
under Part 9 of the Bill (cl. 306(f)). This is undesirable, and
unnecessary. Encouraging biodiversity conservation is one thing.
However, it is inappropriate to provide people with the incentive
of an exemption from environmental laws. The incentive
traditionally used - financial and technical assistance from
Government - would be quite adequate if it were properly resourced
and encouraged.(35)
Clause 307 asserts that
conservation agreements will be legally binding, meaning that any
breach of them by the Commonwealth within the 5 year period could
leave the Commonwealth potentially open to a claim for
compensation.
Chapter 5 Part 15 Division 1
contains the new regime for the management of World Heritage
properties. Unlike the existing World Heritage Properties
Conservation Act 1983 the new provisions require the Minister
to make every effort to reach agreement with the relevant State or
Territory before submitting a property to the World Heritage
Committee for possible inscription on the World Heritage List.
Clause 316 implements the provisions of the World
Heritage Convention which oblige a country to make a written
management plan for a World Heritage Listed property.
Clause 319 requires the Minister to review that
plan at least every 5 years.
Chapter 5 Part 15 Division 2
contains a similar regime for the Ramsar listed Wetlands of
International Importance (see Annex A for a full list). As with the
potential World Heritage sites, the Commonwealth is required to
seek the agreement and co-operation of the relevant State or
Territory before submitting any wetlands for possible inclusion on
the Ramsar list and for developing a joint management plan for
those sites on State or Territory land. The Minister is obliged to
ensure that the principles kept under the Ramsar Convention are
adhered to under the Bill.
Chapter 5 Part 15 Division 3
allows the Commonwealth to manage biosphere reserves designated
under an international agreement in accordance with the principles
set out in the Statutory Framework of the World Network of
Biosphere Reserves.
Commonwealth Reserves
Chapter 5 Part 15 Division 4
permits the Governor-General by Proclamation to declare certain
areas of its land or sea to be reserves. Prior to reaching this
decision, the Minister is required to consider a report of the
Secretary of the Department, together with any public comments
received on the proposal to create a reserve (clause
351). Clause 346 requires the reserve to
be named and for the purposes for which it is declared to be
enunciated. In addition, the reserve must be assigned to one of the
following categories:
strict nature reserve habitat/species
management area
wilderness area protected
landscape/seascape
national park managed resource protected
area
natural monument
The Bill contains a description of the
characteristics of each above category of reserve (clause
347). Kakadu, Uluru and the Jervis Bay Territory are all
excluded from these definitions as management plans are already in
existence for those regions.
The Bill then prohibits the taking of certain
actions (like excavation, building, logging etc) unless such action
is authorised by the management plan for that particular
Commonwealth reserve (clause 354). If there is no
management plan then certain actions are specifically authorised by
the Bill, such as conducting controlled scientific research and
preserving or protecting the reserve or its biodiversity
(clause 354). Clause 355 allows
mining operations within Commonwealth reserves only if the
Governor-General has approved them and they are carried out in
accordance with the reserve's management plan. Although this
provision does not apply to existing rights at the time of
commencement of the Bill (clause 359) and
clause 387 expressly prohibits any mining in
Kakadu National Park. In relation to the Jabiluka uranium mine, it
should be noted that the present mine site is situated physically
within the outer boundaries of the park but in an area excised from
the declared park. Therefore, this provision will have no impact on
the proposed Jabiluka mine.
The Bill provides for differing levels of
protection for different classes of Commonwealth reserve.
Clause 360 prohibits certain activities in
wilderness areas. For example, only the Secretary (or agent) may
use a vehicle, aircraft or vessel in a wilderness areas
(paragraph 360(4)(f)). Vessel is not defined in
the Bill but a hovercraft is included in the definition of a
vehicle.
Subdivisions D and E deal with
the compliance with and the approval of management plans.
Clause 362 obliges the Secretary to give effect to
a management plan where one is in existence. If no management plan
exists then clause 357 applies the relevant IUCN
reserve management principles (if there are any). In the event of
there being a dispute about the Secretary's implementation of the
management plan in a jointly managed reserve, the indigenous people
are able to disagree. A jointly managed reserve is one which
includes indigenous people's land held under lease by the
Commonwealth and where a Board has been established under
Subdivision F below. Clause 363
then obliges the Secretary to inform the Minister of the indigenous
people's disagreement and the Minister must appoint a suitable
person to inquire into the matter and report back to him or her.
The Bill also provides a dispute resolving mechanism in
clause 369 in the event of a disagreement between
the Secretary and the Board with respect to a management plan. That
clause provides that the Minister must appoint an arbitrator if the
dispute cannot be settled.
Approved management plans are disallowable
instruments under clause 371 and therefore are
subject to Parliamentary scrutiny.
Subdivision F establishes the
functions and composition of a Board for a Commonwealth reserve
that is wholly or partly on indigenous people's land if there is
agreement between the traditional owners and the Minister that
there should be a Board. The functions include the preparation of,
implementation of and monitoring of management plans as well as a
role for advising the Minister on all aspects of the future
development of the particular reserve (clause
376). The composition of the Board, if it relates to a
reserve that is wholly or partly on indigenous people's land must
contain a majority of indigenous persons (subclause
377(4)). The qualifications of the Board are to be
determined by the Minister and their remuneration level determined
by the Remuneration Tribunal.
Clause 390 establishes special
rules for the preparation of management plans within the Kakadu
region, Uluru region or the Jervis Bay Territory.
Where there is a jointly managed reserve, there
seems to be input from affected indigenous persons, provided for in
the Bill. However, not all reserves are jointly managed and where
the Commonwealth is the sole manager of the reserve the Bill does
not seem to provide an input for any indigenous persons who may be
living in the region (even though the Bill is expressed so as not
to affect any native title rights under the Native Title Act
1993). The issue of the joint management of parks and reserves
is comprehensively discussed in a Parliamentary Library Research
Paper by Dr David Lawrence.(36)
The Application of the Precautionary
Principle
Chapter 6 Part 16 requires the
Minister to consider the precautionary principle when making
certain decisions under the proposed legislation. The precautionary
principle is recognised in some international law instruments(37)
and was also incorporated in the 1992 Intergovernmental Agreement
on the Environment (IGAE) between the Commonwealth and the State
and Territory governments. The precautionary principle states that
where there are threats of serious or irreversible environmental
damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental
degradation. (38)
Subclause 391 lists those
decisions in which the Minister must consider the precautionary
principle. There is no requirement in the Bill for the Minister to
consider the other principles of ecologically sustainable
development. So, for example, there is no requirement for the
Minister to consider the rights of future generations to 'inherit'
an environment that meets their economic, social, recreational and
aesthetic needs on a sustainable basis (the principle of
intergenerational equity).
The application of the precautionary principle
to Ministerial decision making is generally applauded by
environmental groups. However, a criticism of proposed subclause
391 in the Environmental Defender's Office Commentary on the Bill
is that:
...a number of key decisions made under the Bill
are not listed in cl.391. For example, although the clause applies
to the decision as to whether approval is required for an action
(cl. 75), it does not apply to any subsequent reconsideration of
that decision (cls. 78, 79). It also does not apply to the
important decision as to the level of assessment to be required.
The clause ought to apply to all decisions made by the
Minister.(39)
Chapter 6 Part 17 Division 1
contains the enforcement provisions of the Bill. The Bill proposes
that the Minister may appoint a wide range of people (including
members of the police force and Commonwealth, State or territory
public servants) to be wardens or rangers to enforce the proposed
legislation. Clause 400 allows regulations to be
made which specify the functions, powers and duties to be conferred
on wardens, rangers and inspectors. Clause 396
allows the Minister to appoint 'a person' to be an inspector. This
is comparable to the provisions of the Great Barrier Reef
Marine Park Act 1975 which allow any person to be appointed as
an inspector under that Act and gives them powers that include the
power to detain and search aircraft.
The Bill does not provide details of what
qualifications or training the wardens, rangers or inspectors will
be required to have. Only wardens and inspectors are defined to be
'authorised officers' for the purposes of clause
406. That clause sets out the powers of an authorised
officer to board a vehicle, vessel, aircraft or platform and search
it, take samples or extracts from material found there and make
copies of documents found there.
Chapter 6 Part 17 Division 3
gives authorised officers monitoring powers to check that a
particular occupier of a premise is continuing to comply with the
proposed legislation. Chapter 6 Part 17 Division 4
sets out the search powers available to the authorised officer.
These powers are broadly similar to other search powers in
Commonwealth legislation and provide that a search warrant may be
issued by a magistrate if they are satisfied by information given
to them on oath that there are reasonable grounds for suspecting
that evidential material is, or will be, on the premises. The
occupier of the premises is entitled to be shown a copy of the
search warrant, to be present at the search and to receive
compensation for any damage done to the premises during the search.
Strip or cavity searches of the person cannot be authorised by a
warrant (clause 427). Division 8
allows goods and other baggage on a ship or aircraft travelling
within Australia or between an external Territory and a place
outside that Territory to be searched.
Chapter 6 Part 17 Division 5
authorises the emergency search of an aircraft, vehicle or vessel
by an authorised officer to prevent evidence being destroyed.
Division 6 gives the authorised officer the power
of arrest, in some circumstances, in the absence of a warrant if
there are reasonable grounds for suspecting that they may have
committed an offence and proceedings against them via a summons
would not be effective. Division 9 provides an
authorised officer with the power to ask an individual for their
name and address if there are reasonable grounds for suspecting
that the person has committed an offence and there is a penalty of
10 penalty units ($1100) for failing or refusing to comply with
such a request. Division 10 allows the seizure of
goods by an authorised officer if they have reasonable grounds for
suspecting that the goods either were involved in the commission of
an offence or are evidence of the commission of an offence against
the proposed act. Seized goods can be held for 60 days (which can
be extended by a magistrate for up to 30 days per extension) or
until proceedings for an offence against the proposed Act or its
regulations are completed. At the expiration of the period, the
goods can either be disposed of (if no owner can be found) or
returned to the owner. If, however, the seized goods constitute a
serious threat to the environment or to public health, to the
existence of a particular species or other like threat, the
Secretary may order the immediate disposal of the goods
(proposed clause 449).
Chapter 6 Part 17 Division 12
of the Bill allows the Minister to require an environmental audit
to be done if the Minister has reasonable grounds for suspecting or
believing that a condition of the authority has been contravened or
is likely to be contravened. This is a significant development in
environmental protection as previously there was no provision for
carrying out ongoing monitoring of environmental performance by way
of an audit.
Chapter 6 Part 17 Division 13
allows the Minister to make conservation orders to protect listed
threatened species or ecological communities on Commonwealth land.
The Bill does not provide that similar 'conservation orders' can be
made with respect to World Heritage sites, Ramsar sites or other
matters of national significance. A conservation order can only be
made if the Minister reasonably believes that it is necessary to
protect a listed threatened species or a listed threatened
ecological community and it may prohibit or restrict certain
specified activities within some or all Commonwealth areas.
Alternatively, such an order can require certain persons to take
specified action in some or all Commonwealth areas.
Subclause 464(3) obliges the
Minister to have regard to the economic and social considerations
relevant to ecologically sustainable development principles when
deciding whether or not to make a conservation order.
Conservation orders remain in force for the time
period specified within them or until otherwise revoked by the
Minister (clause 465). Clause 466
requires that conservation orders be reviewed by the Minister at
least every 5 years and either confirmed, varied or revoked in
writing. Varying or revoking the order is not permitted unless the
Minister is satisfied that the order is no longer needed to protect
the environment or the listed threatened species or ecological
community.
Once made, conservation orders must be gazetted
and notices sent to people known to be affected by the order.
Clause 468 allows a person affected by a
conservation order (or by the decision on review of that order) to
apply in writing to the Minister, within 28 days, to reconsider his
or her decision. In reconsidering the matter, the Minister must
seek the Secretary's advice and notify the applicant of the
decision promptly (clause 469).
Clause 470 provides a penalty
of up to 500 penalty units ($55000) for the contravention of a
conservation order. There is also provision for a person to ask the
Minister's advice on whether the action they propose taking will
contravene an order. Once they have received the Minister's advice
they are entitled to rely on it as a complete defence to an
accusation of contravening a conservation order. If the person is
dissatisfied with the advice, they may apply to the Administrative
Appeals Tribunal for a review of the Minister's decision
(clause 473).
Clause 474 allows the Secretary
to provide financial or other assistance (including the provision
of goods or labour) to a person to help them comply with a
conservation order provided that the value of the assistance is
reasonable and proportionate to the obligations imposed on that
person. Any assistance given may be offset against the compensation
otherwise payable under clause 519 (see
below).
Chapter 6 Part 17 Division 14
of the Bill deals with who may apply for injunctions to prevent
contraventions of the proposed Act. The class of people who may
apply for an injunction is comparatively narrow. Clause
475 provides that an individual can only apply if their
own interests 'have been, are or would be affected by the conduct
or proposed conduct' or if they have been engaged in a series of
activities or research into the protection of the environment at
any time in the 2 years preceding the conduct.
One significant change that this makes is that
Aboriginal persons will lose their existing statutory right(40) to
be taken to be a 'person aggrieved' under the Administrative
Decisions (Judicial Review) Act 1977 to challenge Ministerial
decisions relating to the authorising of otherwise unlawful acts in
relation to Aboriginal sites.
In addition, the Bill provides that injunctive
relief can only be granted in the Federal Court. This means that
the challenging of a decision becomes significantly more
expensive(41) and risky(42).
Other enforcement measures in the Bill include
the fact that the Minister may, under clause 498,
publicise contraventions of the proposed Act or the regulations.
Clause 499 allows the Commonwealth to take such
steps as are possible to mitigate or remedy environmental
damage.
Clause 519 implements the
constitutional requirement that the Commonwealth pay just
compensation if it compulsorily acquires property. The provision
allows the Federal Court assessing the amount of compensation
payable to take into account any compensation or other remedy
already provided to the claimant.
Positive Aspects of the Bill
The advantages of the Bill are that it attempts
to consolidate the Commonwealth environmental legislation into a
single Act. In addition, it moves to implement specific
multilateral treaties to which Australia is a party (like the
Ramsar Convention and the Biodiversity Convention) which previously
have not been fully implemented in Australian domestic law. For
example, this is the first attempt to enshrine biodiversity
protection in Commonwealth legislation.
The Bill aims to promote ecologically
sustainable development and for the first time in Australia's
history applies the precautionary principle at a national level to
certain decisions.
The Bill allows for conservation agreements,
which may be used to promote the protection of biodiversity on
private land.
The Business Council of Australia has indicated
that the timelimits on the EIA/PER processes will provide greater
certainty for business and possibly promote investment.
There are some provisions in the Bill which
allow an Environmental Audit to be conducted so as to monitor the
likely impact on the environment of certain actions.
The Environmental Defender's Office argues that
'the most positive aspect of the Bill is that it transfers the
powers to trigger Commonwealth environmental assessment, and to
decide whether or not to give Commonwealth approval to an action,
from the relevant Commonwealth 'action Minister' to the
Commonwealth Environment Minister'.(43)
Senator Hill has described the existing triggers
as ad hoc and indirect and the Bill replaces these with a list of
seven matters of national environmental significance which will act
as triggers for Commonwealth involvement.
Negative Aspects of the Bill
The negative aspects of the Bill are that it
focuses on issue specific or site specific environmental matters.
Broader environmental problems like 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 covered in
the Bill. In relation to biodiversity, the approach of focussing on
a series of sites is scientifically flawed. Plants and animals
cannot survive in genetically isolated 'pockets' and isolated
populations are much more prone to being wiped out.
The Bill arguably contains too many exemptions
to those issues that it does cover. Bilateral agreements,
conservation agreements, lists of exempted actions and reliance on
State or strategic environmental assessment mechanisms may operate
to undermine the operation of the Bill. More detail is required on
the way these mechanisms will be implemented before drawing a
conclusion on this issue.
Many existing triggers have been lost (eg
foreign investment). In addition the public or interested groups
are not able to trigger the Bill's environmental assessment
processes.
The Bill allows the Commonwealth Department of
the Environment to delegate some of its approval functions to other
Departments. There are no environmental safeguards on this process
and no public scrutiny.
The Bill does not apply to areas covered by a
Regional Forestry Agreement and therefore the power of the Bill to
conserve biodiversity is seriously weakened. Old-growth forests are
places of high biodiversity value.
The existing problems with the current regime
for listing endangered or vulnerable species are repeated in this
Bill. Many species are not known to the scientific literature or
are so little studied as to make it difficult to ascertain whether
they are endangered or not. Also, the Bill does not address any of
the criticisms of the existing EIS process. For example, the Bill
does not provide an answer to any of the defects identified by the
Warnken/ Buckley study which recommends an EIS or EIA contain:
-
- the environmental consultant's (appropriate) specialist
qualifications
-
- a statement by the environmental consultant as to whether or
not, in their view, the 'level of study funded was appropriate to
the likely significance and impacts', and
-
- the comments of the independent peers (forwarded independently
to the assessment agency) reviewing each contribution to the
EIA.
WETLANDS DESIGNATED BY AUSTRALIA TO THE LIST OF WETLANDS OF
INTERNATIONAL IMPORTANCE
-
- Coburg Peninsula Aboriginal Land Wildlife Sanctuary, 8 May 1974
- Kakadu National Park-Stage I, 12 June 1980
- Moulting Lagoon, 16 November 1982
- Logan Lagoon Conservation Area, 16 November 1982
- Sea Elephant Conservation Area, 16 November 1982
- Pittwater-Orietton Lagoon, 16 November 1982
- Apsley Marshes, 16 November 1982
- East-Coast Cape Barren Island Lagoons, 16 November 1982
- Flood Plain Lower Ringarooma River, 16 November 1982
- Jocks Lagoon, 16 November 1982
- Northwestern Corner of Lake Crescent, 16 November 1982
- Little Waterhouse Lake, 16 November 1982
- Corner Inlet, 15 December 1982
- Barmah Forest, 15 December 1982
- Gunbower Forest, 15 December 1982
- Hattah-Kulkyne Lakes, 15 December 1982
- Kerang Wetlands, 15 December 1982
- Port Phillip Bay (Western Shoreline), and Bellarine Peninsula,
15 December 1982
- Western Port, 15 December 1982
- Western District Lakes, 15 December 1982
- Gippsland Lakes, 15 December 1982
- Lake Albacutya, 15 December 1982
- Towra Point Nature Reserve, 21 February 1984
- Kooragang Nature Reserve, 21 February 1984
- Coorong and Lakes Alexandrina and Albert, November 1984
- Bool and Hacks Lagoons, November 1984
- Coongie Lakes, 15 June 1985
- Macquarie Marshes Nature Reserve, August 1986
- ''Riverland'', 23 September 1987
- Kakadu National Park-Stage II, 15 September 1989
- Ord River Floodplain, 7 June 1990
- Lakes Argyle and Kununurra, 7 June 1990
- Roebuck Bay, 7 June 1990
- Eighty-mile Beach, 7 June 1990
- Forrestdale and Thomsons Lakes, 7 June 1990
- Peel-Yalgorup, 7 June l990
- Lake Toolibin, 7 June 1990
- Vasse-Wonnerup System, 7 June 1990
- Lake Warden System, 7 June 1990
- Moreton Bay Queensland 22 October 1993
- Bowling Green Bay-- Queensland 22 October 1993
- Hosnie's Spring Australian Territory of Christmas Island, 16
December 1990.
(Source: Answers to Questions on Notice in House of
Representatives Hansard (Nos 165 of 11 October 1990 and 121 of 20
August 1996 respectively), the Hon. N. Blewett MP and the Hon. A.
Downer MP.
-
- Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.
- Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.
- C. Saunders, 'The Constitutional Division of Powers with
Respect to the Environment in Australia', 1996, Federalism and
the Environment ed. Holland, Mouton & Gallison. p. 55.
- Signed by Australia without reservation as to ratification on 8
May 1974.
- Acceded to by Australia on 26 June 1991.
- Signed by Australia on 21 September 1973 and ratified on 29
July 1976.
- Signed for Australia on 5 June 1992 and ratified on 18 June
1993.
- Signed for Australia on 5 June 1992 and ratified on 30 December
1992. The Kyoto Protocol was negotiated in December 1997.
- Ratified by Australia in August 1974.
- Signed for Australia on 10 December 1982 and ratified on 5
October 1994.
- Signed for Australia on 1 December 1959 and ratified on 23 June
1961. Subsequently there has been a 1991 Protocol on Environmental
Protection negotiated which Australia ratified on 6 April 1994.
- OECD, Environmental Performance Reviews: Australia,
1998, p.4-33.
- Ibid.
- Ibid., p 8.
- Ibid.
- Ibid.
- B. Preston, 'Some Elements of Effective Environmental Laws',
1987, 4 EPLJ 280, p. 282.
- J. Warnken & R. Buckley, 'Scientific quality of tourism
environmental impact assessment', 1998, Journal of Applied
Ecology, 35, 1-8, p. 5.
- Ibid., p 6.
- J. Warnken & R. Buckley, 'Scientific quality of tourism
environmental impact assessment', 1998, Journal of Applied
Ecology, 35, 1-8, p. 5.
- Ibid.
- Ibid.
- Ibid., p. 7.
- International Basic Safety Standards for Protection against
Ionizing Radiation and for the Safety of Radiation Sources
International Atomic Energy Agency Safety Series No. 115 (1996) at
308.
- The position of the baselines is determined according to the
rules set out in the United Nations Convention on the Law of the
Sea and promulgated.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p.4.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p. 5.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, pp.3-4.
- Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p. 5.
- Ibid.
- Convention on Biological Diversity, ratified 18 June
1983.
- The Endangered Species Protection Regulations were
amended in 1995 to allow a taxonomist with relevant expertise to
sign a written statement stating that in their opinion the species
is a new species to the science of taxonomy.
- See comments in: Klemm and Shine, Biological Diversity
Conservation and the Law: Legal Mechanisms for Conserving Species
and Ecosystems IUCN Environmental Policy and Law Paper No.
29, 1993, p. 78.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p.6.
- D. Lawrence, 'Managing Parks/Managing 'Country': Joint
Management of Aboriginal Owned Protected Areas in Australia', Dept.
of the Parliamentary Library, Research Paper No. 2,
1996-97.
- For example, Principle 15 of the Rio Declaration on Environment
and Development. It is also contained in the Preamble to the
Convention on Biological Diversity and was endorsed by the
Second International Conference on the Protection of the North Sea
in 1987.
- Clause 3.5.1, Intergovernmental Agreement on the Environment, 1
May 1992.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p. 5.
- Subsection 13(7), World Heritage Properties Conservation
Act 1983.
- The filing fee in the AAT is $500.00 and in the Federal Court
$500.00 for an individual (more for a corporation). However, it is
considerably more expensive to run an action in the Federal Court
than in the AAT (see note 40).
- The scale of costs for the AAT and the Federal Court are
different and since there is a general (but not absolute) rule that
the loser of a court action bears their own costs and the
successful party's costs, there is the risk of getting a larger
order to pay costs awarded against you in the Federal Court.
- Brief Commentary on the Bill from the Environmental Defender's
Office Ltd, p.1.
Susan Downing
19 August 1998
Bills Digest Service
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