Chapter Eight
ENVIRONMENTAL ASSESSMENTS AND APPROVALS
Decision Making Powers of the Environment Minister
Decision Making Under Current Legislation
8.1 Under the current EPIP Act the responsibility for deciding whether
there is a Commonwealth action and whether that action is environmentally
significant rests with the Minister or agency responsible for the proposed
action (`action Minister' or `action agency'). The action Minister may
also decide to trigger assessment of a Commonwealth action, for reasons
other than environmental significance, if he or she believes that the
decision would benefit from environmental assessment. These decisions
are not the responsibility of the Environment Minister or Environment
Australia except where Environment Australia is the action department
or the Minister for the Environment is the action Minister. For example,
the Minister for Resources is responsible for granting a licence for offshore
pipelines in Commonwealth waters and is therefore the action Minister
for any such proposals.
8.2 If the action Minister decides that the proposed action is environmentally
significant, or decides that for some other reason it is desirable to
do so, the action Minister must designate a proponent for the proposed
action and refer the matter to the Minister for the Environment.
8.3 Following an environmental assessment the action Minister is responsible
for making the final decision on the proposal, for example to grant a
licence. The Minister for the Environment does not have veto power over
this decision. The action Minister is required to take into account the
comments, suggestions or recommendations of the Minister for the Environment.
[1]
Decision Making Under the Bill
8.4 Under the EPBC Bill, the Environment Minister will make the decisions
on the need for environmental assessment and approval, the granting of
approval, and setting of conditions attached to an approval.
8.5 A major concern raised with the Committee was that the Environment
Minister would be given too much discretion in decision making under the
Bill. Industry groups were concerned that while the `sweeping and relatively
unconstrained powers' of the Environment Minister might significantly
streamline approvals processes, they could `represent a radical extension
of the Commonwealth's capacity to intervene in environmental matters'.
[2]
8.6 Some witnesses were also concerned about the potential for subjective
or politicised decision making:
Obviously, any process which gives a large amount of unfettered discretion
to a single Minister is cause for concern because it does open it up to
very subjective decisions. I think we would prefer to see a more objective
process, but I cannot give you an example of how that might work. There
are a large number of areas in the Bill where the Minister is given a
very unrestrained discretion to do various things, and that would be of
concern because, after all, he or she is a politician. [3]
8.7 Public interest groups and individuals were mainly concerned that
the Environment Minister had too much discretion as to whether to intervene
in, or opt out of, decisions resulting in the protection of the environment.
[4] The Australian Conservation Foundation suggested
that in many cases discretionary provisions in the Bill should be replaced
by mandatory obligations. [5]
8.8 Mr Roger Beale, Secretary of the Department of the Environment and
Heritage, responded to the above criticisms and outlined a number of constraints
on the Minister's decision making powers included in the Bill:
\DB\TIM\04:30TURN NO #91It is not correct to assert that he has unfettered
discretion in decision making. The Bill sets out in detail the matters
that the Minister must consider in making decisions. These are set out
in clauses 136 to 141. The Bill also sets out a detailed process that
must be followed, including consultation with other Ministers and the
States, and ample opportunity for public comment. In this way, the Bill,
in fact, sets out more by way of obligations and process for the Minister
than has been the case in the past under similar legislation. [6]
8.9 Conservation groups and individual witnesses generally welcomed the
transfer of decision making powers to the Environment Minister:
we have no problem with the Environment Minister being the action Minister.
We believe that is one of the improvements in the Bill. We also recognise
the reality of an Environment Minister being able to consult with colleagues
on other matters. Even if that was not written into the Bill, it would
inevitably follow. [7]
8.10 One submission suggested that the reliance on decision making by
the `action Minister' under the EPIP Act has led to environmental disputes:
Under the existing system the Minister responsible for the project makes
the threshold determination about whether to call for environmental impact
assessment and the final decision about whether the proposal should proceed.
That approach has been heavily criticised in the past because many regard
the Minister responsible for a project as having a vested interest in
ensuring the project's approval. Many environmental disputes, including
the now-infamous Gunns decision, have involved the refusal of the
`action Minister' (in that case the Minister for Primary Industries) to
trigger EIA and then approving the project. [8]
8.11 In contrast, most industry groups opposed the transfer of what they
termed `unilateral' decision making powers to the Environment Minister.
They were concerned that the Environment Minister would make decisions
that would not adequately balance environmental, economic and social considerations
and argued that environmental decision making should be a `whole-of-government
activity taken in conjunction with other aspects of project approval'.
[9] The Association of Mining and Exploration
Companies recommended that the:
decision to grant or otherwise a project approval, should comprise a
joint decision of all relevant Commonwealth Ministers. Should a consensus
prove unobtainable, Federal Cabinet should make the final decision. [10]
8.12 Industry groups also criticised the provisions in the Bill requiring
the Environment Minister to consult with other relevant Commonwealth Ministers
on the basis that `the definition of `relevant Ministers' within the Bill
is too narrow, particularly for some resource developments where there
may not necessarily be a Minister with `administrative responsibility'.
[11] A further concern expressed by industry
groups was that in making decisions the Minister should be required to
have full regard to the views of other Ministers. [12]
8.13 Mr Beale indicated that requiring decisions to be made by Cabinet
would be foreign to the Commonwealth's current legislative structure:
The Environment Minister is given certain powers. He has to exercise
them under pretty clear guidelines laid down by the parliament, if it
adopts this bill. He must have regard to the relevant views of other Ministers,
but it does not get beyond that in terms of decision making within executive
government. [13]
8.14 Mr Beale drew the Committee's attention to the requirements of the
Environment Minister to have regard to social and economic matters in
making environmental decisions and indicated that allowing other Ministers
to make decisions for proposals that relate to their administrative responsibilities
would perpetuate the current legislative framework:
The Minister is not obliged to close his eyes to broader issues of sustainable
development. In fact, section 136, in dealing with ecologically sustainable
development, sets out that he must have regard to economic and social
matters to the extent that they are pertinent to the decision. But there
can be no mistake that this Bill does represent a very significant change
in the powers of the Environment Minister. Rather than simply making recommendations
to another Minister, he has to make a decision himself, and that reflects
that his involvement is no longer triggered simply by a decision being
made by another Minister but is triggered by it being a matter of national
environmental significance in its own right.
If, as has been suggested, one were to privilege the Minister responsible
for minerals from time to time, do we say the same thing with respect
to the Minister responsible for fisheries, forests or transport? If you
take that approach, does it get you back to the previous legislative framework
which effectively gave the Environment Minister all care but no responsibility?
It is true they are pointing to one of the fundamentals of this Bill,
and that is that the Environment Minister has the power and the obligation
to make some very important decisions about matters of national environmental
significance. [14]
8.15 In responding to industry's concerns about the potential for biased
decisions by the Environment Minister, Mr Beale referred to a number of
additional constraints which would ensure balanced and lawful decision
making:
My response has been that, first of all, the legal processes constrain
Ministers from acting in a way that is inconsistent with the legislation.
So if they feel that Ministers are making whimsical or irresponsible decisions,
or decisions that cannot reasonably be related to the requirements under
the Act, or they are taking into account irrelevant considerations, then
there are answers in the courts.
Secondly, the normal processes of Cabinet Government and discipline within
executive government mean that Ministers who consistently take a position
that the Government does not feel reflects both their legal obligations
and a fair balance, are advised that they are doing so by their colleagues.
At the end of the day, it is up to the government of the day, democratically
elected, to determine whether a Minister is acting in accordance with
the government's broad objectives. I am not sure that any Bill can attempt
to substitute for that sort of democratic decision making discipline.
[15]
8.16 The Committee considers that the transfer of decision making responsibility
to the Environment Minister is appropriate, given that the main aim of
the Bill is to protect the environment and conserve biodiversity.
8.17 The Committee notes that clause 131 requires the Environment Minister
to inform and seek comment from `any other Minister whom the Environment
Minister believes has administrative responsibilities relating to the
action of the decision the Environment Minister proposes to make' prior
to making a decision on the approval of an action.
8.18 It appears that the term `administrative responsibilities' has been
incorrectly interpreted in a number of submissions to mean legislative
responsibilities. The administrative responsibilities of Ministers are
defined in the Administrative Arrangements Order and cover legislative,
policy and program responsibilities. For example, under the current Administrative
Arrangements Order the Industry, Science and Resources portfolio has responsibility
for mineral and energy industries, including gas and petroleum; electricity,
energy and resources science and research, including geoscience; and legislation
such as the Offshore Minerals Act 1994 and the Petroleum (Submerged
Lands) Act 1967. It appears that the Bill would require the Environment
Minister to consult the Minister for Industry, Science and Resources on
resource developments, such as mining proposals. However, the Committee
makes the following recommendation.
Recommendation 10
The Committee recommends that the Minister consider whether clause
131 is sufficient to ensure that all relevant Ministers are consulted
or whether an amendment is needed to achieve this.
8.19 Under clause 131 other Commonwealth Ministers are to be invited
to make comments that relate to `economic and social matters relating
to the action and may be considered by the Environment Minister consistently
with the principles of ecologically sustainable development'. Clause 136(1)
of the Bill requires balanced decision making that takes account of economic,
social and environmental matters. In making decisions on environmental
approvals the Minister must also take into account the principles of ecologically
sustainable development set out in clause 136(3). [16]
8.20 The Committee is satisfied that the Environment Minister will not
be able to ignore the views of other Ministers. Clause 136(2)(f) provides
that the Minister, in considering an approval and conditions, must
take into account `any relevant comments given to the Minister by another
Minister in accordance with an invitation under section 131'.
8.21 The Committee notes that the Bill contains additional provisions
which will contribute to transparency and accountability in decision making:
public consultation in carrying out environmental impact assessments (for
example under clauses 93, 97(5), 98, 102(5), 103, 110 and 146(2)(b));
the publication of a range of decisions and reasons for the decisions;
judicial review with broad standing provisions; and annual reporting on
the operation of the legislation under clause 516.
8.22 The Committee does not support proposals to require joint decision
making involving the Environment Minister and other Ministers who have
responsibilities relevant to a proposal. This approach would blur the
lines of responsibility and accountability for decisions and would be
unprecedented in Commonwealth legislation. Decision making by Cabinet
would also be unprecedented and, in the Committee's view, inappropriate
for a number of reasons. For example, Cabinet may need to be established
as a legal entity and would be subject to legal action such as under the
Administrative Decisions (Judicial Review) Act 1977. The protection
of Cabinet documents under the long-standing convention of Cabinet confidentiality
may also be inconsistent with provisions relating to transparency in decision
making.
8.23 In conclusion, the Committee considers that the Bill contains a
range of safeguards which will ensure balanced, accountable and transparent
decision making by the Minister.
Referral of Proposals to Take Action
8.24 Clause 68 of the Bill requires a person to refer a proposal to take
an action that he or she thinks may be, or is, a controlled action requiring
approval. Clause 69 also provides for the States and Territories to refer
a proposal of which they are aware.
8.25 Many witnesses argued that any person, including third parties,
should be able to refer proposals to the Minister for a decision as to
whether assessment is required. [17] The Environmental
Defender's Office argued that public referral would allow for more accurate
information on potential environmental impacts to be gathered in certain
circumstances:
The right of the public to refer is crucial. This becomes clear when
regard is had to the need to know whether threatened species are found
at a particular location. Information on the presence and distribution
of species is often scattered and incomplete. Sometimes members of the
public who live in or take a particular interest in a particular place
will be the only people to know of the presence of a threatened species,
or its periodic use of the site.
Public referral of actions operates successfully in Western Australia.
Under Section 38 of the Environment Protection Act 1986 (WA) the
EPA is obliged to investigate and then make public its recommendations
on whether assessment is required. [18]
8.26 Another witness indicated that while public referral is uncommon
in Australia, its use in the Western Australian legislation has not been
abused by environmental groups and that it has `operated as an appropriate
“watchdog” over all levels of government'. [19]
8.27 However, the Committee notes that members of the public will be
able to draw the Minister's attention to proposals that may need to be
referred and, if warranted, the Minister will be able to `call in' such
a proposal under clause 70. In the Committee's view the Bill provides
strong incentives, such as high penalties for contraventions, for proponents
to refer relevant proposals. In view of these provisions, the Committee
considers that there is no need to provide for public referral of actions.
Deciding Whether Approval of Actions is Needed
Only Adverse Impacts to be Considered in Screening of Proposals
8.28 Clause 75(2) provides that when the Minister makes a decision about
whether a proposal needs approval, he or she must consider all adverse
impacts of the action and must not consider any beneficial impacts. The
Explanatory Memorandum states that the intent of this provision is to
ensure that an action which will have only beneficial impacts on a matter
of national environmental significance will not be a controlled action.
[20]
8.29 Key industry groups considered this approach `incongruous', citing
a number of examples where actions involve beneficial impacts on the environment:
the dredging of accumulated silt to sustain the environmental values of
a Ramsar wetland, or the eradication of a pest species where the eradication
process may have adverse impacts, but yield an overall benefit to the
environment. [21]
8.30 Mr Beale provided additional explanation for this provision:
The first thing is: does it need an approval? You will recall that one
of the difficulties we got back into at the time of the listing –
I think it was of the Wet Tropics World Heritage Area – was that
it appeared that the EPIP Act needed to be triggered, whether or not this
was an advancement or a damage to the area concerned. That very nearly
made very difficult the improvement in environmental conditions. So for
that reason the World Heritage (Properties Conservation) Act was amended
to exclude the application of the EPIP Act. In general here, the whole
point is that the Minister has to decide whether or not there will be
an adverse impact on a matter of national environmental significance.
Once you have made a decision about that, you then know: does this need
approval? It is at the point of considering the approval that the Minister
has to weigh up a broader set of interests and to talk to relevant other
Ministers and so on. [22]
8.31 Where a proposal involves both adverse and beneficial impacts, the
precise nature and magnitude of these impacts are unlikely to be known
until a formal environmental assessment is carried out. The Committee
considers that taking account of beneficial impacts in the screening of
proposals could encourage proponents to overstate those benefits in the
hope that their proposal would escape assessment. The Committee notes
that the beneficial impacts of an action may be examined in the environmental
assessment process and taken into account in the approval decision.
8.32 The Committee endorses the intent of the provision to avoid environmental
assessment of proposals with only beneficial impacts on a matter protected
by the Bill. The application of environmental assessments and approvals
to such proposals would be unnecessary and wasteful.
8.33 In conclusion, the Committee considers that the Bill already enables
the Minister to take into account the beneficial impacts of actions at
the appropriate stage in the environmental assessment and approval process.
Public Involvement in Screening of Proposals
8.34 Key conservation organisations suggested that the Bill should provide
for public participation in the screening of proposals `to ensure transparency
and accountability at a stage in the EIA process which is one of the most
contentious'. [23] In evidence to the Committee,
Mr James Johnson outlined concerns about the provisions in the Bill, emphasising
that the Minister's decision relies too heavily on information supplied
by the proponent:
At the moment, under what we have now and what is proposed under the
legislation, public input comes far too late in the process.
It is not an answer to say that public participation will necessarily
slow down the process. We are talking about 20 working days to invite
comment from the public to supplement the information that a proponent
puts forward about what he or she says the impacts on the environment
of that proposal are going to be. If there is going to be any sense of
public credibility in those decisions, they must be more open and greater
information must be available to the Minister. You only have to say that
the Minister is going to decide whether something is going to have a significant
impact on information supplied by the proponent to recognise that it is
a flawed system. [24]
8.35 The Committee notes that decisions on whether a proposed action
needs approval must be published in accordance with clause 77(1)(b). At
that stage it would be possible for members of the public to bring to
the attention of the Minister any substantial new information relating
to the proposed action which may cause the Minister to reconsider his
or her decision in accordance with clause 78.
Reconsideration of Decision
8.36 Clause 78 of the Bill enables the Environment Minister to reconsider
his or her decision on whether or not an action needs approval, only in
strictly limited circumstances:
- substantial new information has become available or there has been
a substantial change in circumstances not foreseen at the time of the
original decision (these grounds will be satisfied only in exceptional
circumstances);
- the Minister originally decided that the action was not a controlled
action because it was to be taken in a particular manner specified in
the notice under clause 77 and the Minister is now satisfied that the
action is not being, or will not be, taken in the particular manner;
or
- the Minister originally decided that the action was not a controlled
action because of provisions in a bilateral agreement or a declaration
under clause 33 and the relevant provisions are no longer in effect;
or
- a State or Territory Minister requests that the first decision be
reconsidered under clause 79. [25]
8.37 Under clause 79 a relevant State or Territory Minister may request
the Environment Minister to reconsider his or her decision about whether
or not an action requires an approval. The relevant State or Territory
Minister may make such a request within five business days of receiving
notice of the decision. The Environment Minister must either confirm the
original decision or make a new decision within twenty business days.
8.38 Key industry groups sought to have some independent input into the
reconsideration of the Minister's decision, `particularly so if financial
commitments or expenditures have been made on the basis of the previous
decision, and there should be a legitimate right to claim compensation'.
They also suggested that proponents should be able to request the Minister
to reconsider his or her decision, as well as the relevant State Minister.
[26]
8.39 The Committee considers that industry's concerns are valid in cases
where the Minister might decide that a proposed action does not require
approval but later reverses the decision. However, the Committee believes
that the provisions relating to reconsideration of decisions are tightly
constrained, as acknowledged by key industry groups. [27]
In particular, under clause 78(3) the Minister must not reverse his or
her first decision after the action has been taken or after the Minister
has granted or refused approval for the action. This overriding constraint
will minimise any potential risks for proponents.
8.40 The Committee did not find the argument for an independent appeal
process for screening decisions persuasive. The Committee notes that the
current EPIP Act does not provide for appeal against such decisions and
that a proponent may seek judicial review of a decision if there are sufficient
grounds.
Assessing Impacts of Controlled Actions
Assessments to Focus on Relevant Impacts
8.41 The Bill limits environmental assessments and approval decisions
to addressing only the `relevant impacts' which triggered assessment.
This restriction was strongly opposed by many submissions and witnesses.
[28] The Environmental Defender's Office suggests
that this arrangement will lead to duplication between Commonwealth and
State processes:
This makes no sense at all; the Commonwealth is purporting to promote
the concept of ecologically sustainable development, but is not taking
a holistic approach to the environment. It is internally inconsistent
to take into account all social and economic impacts of the proposal,
yet not all environmental impacts.
There is huge potential for duplication, incompatibility and confusion
because while the Commonwealth takes a blinkered approach, the States
will need to assess all environmental impacts. The Bill should be amended
to address this problem, so that the Commonwealth takes responsibility
for the whole of the assessment of matters of national environmental significance.
This would also avoid the need for States to undergo their own assessment,
enabling States to accredit Commonwealth processes and avoid duplication.
[29]
8.42 Mr Beale outlined the rationale for the approach in the Bill:
the Minister does not have to consider all environmental impacts when
deciding whether to approve an action, but rather only those that have
triggered his consideration, or only those matters of national environmental
significance. This is because the Bill is concerned with the matters of
national environmental significance, which are a Commonwealth responsibility.
Frequently the Bill brings with it powers that are restricted to, by
their very nature, those particular matters. It is only those matters
that would lie within the direct competence of the Commonwealth. It is
inappropriate for the Commonwealth to consider matters of only State or
local significance in making decisions. Furthermore, to suggest that the
Minister is able to do so, in some cases, would thwart his constitutional
competence. In relation to Commonwealth land, the Commonwealth marine
area, nuclear actions and actions by the Commonwealth, all environmental
factors will be considered. [30]
8.43 The all-inclusive approach proposed by conservation groups would
require the Commonwealth to make decisions about matters which are only
of local or State significance, in which the Commonwealth may have little
interest or expertise. For example, if a complex tourism development involved
a significant impact on a nationally threatened species but no other matters
of national environmental significance, the Commonwealth would be required
to address not only the threatened species in the assessment and approval
process, but also a large number of issues such as infrastructure and
town planning, land use, building requirements, fire safety, health and
occupational safety, sewerage, waste disposal, noise, and air quality.
This would be the case even where the impact on the threatened species
could be easily avoided or mitigated. The Commonwealth would not even
have the legislative system required to deal with the full range of environmental
matters which are considered at the State and local level. The Committee
notes that it is not within the Commonwealth's authority to require all
environmental issues to be considered in relation to all activities.
8.44 The Committee considers that the high level of interference in State
and local government functions, implied by the EDO proposal, would provide
a strong disincentive against the accreditation of Commonwealth processes
by the States. The Committee considers that the proposed approach is unworkable
and, far from reducing duplication, would entrench duplication.
8.45 The Committee considers that the Bill, in contrast, provides a workable
and realistic framework. Where bilateral agreements are in place, as intended
by the Commonwealth Government, there will be little or no Commonwealth-State
duplication. States will be able to conduct environmental assessment processes
which address all economic, social and environmental matters, including
those of national environmental significance, in an integrated way.
8.46 Some witnesses expressed concerns that requiring Commonwealth assessments
and approvals to address only a `narrow slice of the environmental impact',
[31] but all of the economic and social impacts,
would result in unbalanced decisions which are detrimental to the environment.
[32] The Committee notes, however, that clauses
137 to 141 require that in deciding whether or not to approve an action,
the Minister must not act inconsistently with Australia's obligations
under international agreements relevant to World Heritage, Ramsar wetlands,
threatened species and communities, migratory species, and any other agreement
which may be relevant to additional matters of national environmental
significance. These provisions will provide appropriate safeguards which
will ensure balanced decision making.
Deciding on the Approach for Assessment
8.47 Under the Bill the Minister must choose one of the following ways
of assessing the impacts of an action: a specially accredited process
(discussed under Chapter 7 of this report as a method of accreditation);
an assessment on preliminary documentation; a public environment report;
an environmental impact statement; or a public inquiry. Clause 87 sets
out the information that must be considered by the Minister in making
his or her decision, including when consultation is required with State
or Territory Ministers.
8.48 Dr Gary Smith, Principal Environmental Scientist for the Sutherland
Shire Council, told the Committee that the key flaw in the current EPIP
Act and the Bill is that `discretion as to the level of assessment of
Commonwealth developments would reside purely with a Minister and that
a Minister or Cabinet would remain a discretionary consent authority'.
He suggested that the level of assessment could be determined through
schedules to the Bill that would designate classes of development which
would automatically require an EIS, as occurs under the New South Wales
Environmental Planning and Assessment Act 1979. [33]
8.49 In a similar vein, key conservation groups suggested that `some
developments ought to automatically require a Public Inquiry (for example,
nuclear facilities and armaments depots)'. [34]
No additional evidence was provided to support this proposal.
8.50 The Committee understands that the choice of assessment approach
under NSW legislation is either an EIS or an inquiry. In other words,
the scheduling of designated developments under the NSW legislation establishes
the requirement for assessment, rather than the level of
assessment. In any case, it would not be feasible to determine the level
of assessment according to designated classes of actions, as the same
action under different circumstances could require different assessment
approaches. For example, the environmental significance of nuclear facilities
which require environmental assessment will vary according to many factors,
including their size, location, and the quantity and nature of radioactive
materials to be used or stored at the facility.
8.51 The Committee can see no justification for mandatory inquiries in
relation to nuclear facilities and armament depots.
Assessment on Preliminary Documentation
8.52 Assessment on preliminary documentation provides a less stringent
form of assessment than a public environment report or an environmental
impact statement. It is currently available under the EPIP Act as an `assessment
without the preparation of an environmental impact statement or a public
environment report'. The Minister for the Environment, or Environment
Australia on behalf of the Minister, may determine that neither a PER
nor an EIS is required if an examination of the preliminary information
provided by a proponent (a notice of intent) indicates that the object
of the EPIP Act may be met without further assessment. A significant number
of proposals are assessed on this basis. [35]
8.53 Key conservation organisations suggested that the Bill be amended
to `delete all reference to assessment on the preliminary documentation
provided by the proponent' and proposed that `the minimum possible form
of assessment should be a public environment report'. [36]
8.54 The Committee notes that clause 93 provides that the designated
proponent must publish information included in the referral, preliminary
documentation, and additional information requested by the Minister. The
proponent must publish an invitation to anyone to provide comments
on the information or proposal within a period of time set by the Minister
and give the Minister a copy and summary of any public comments received.
The proponent must then give the Minister revised documentation on the
proposal, taking into account any public comments. The Secretary of the
Department must then prepare an assessment report for consideration by
the Minister (as in the case of public environment reports and environmental
impact statements). The assessment report must be published and a copy
provided to any person on request.
8.55 The Committee received very little evidence which would support
the deletion of provisions allowing assessment on preliminary documentation.
The Committee regards the process proposed in the Bill as fully transparent
and accountable, and sees no justification for excluding it from the Bill.
Inquiries
8.56 Key industry groups were concerned that the provisions for inquiries
under Division 7 of Part 8 of the Bill are `unnecessarily burdensome and
carry an overly adversarial tone for a modern environment protection bill'
and establish `a highly inquisitorial process'. [37]
8.57 The Committee disagrees with these claims. The Committee notes that
the inquiry provisions in the Bill, including a number of offence provisions,
are based largely on existing provisions in the Environment Protection
(Impact of Proposals) Act 1974. The Committee further notes that the
provisions in the Bill relating to witnesses, inspections, and the protection
of commissioners and witnesses are consistent with public inquiry provisions
in other Commonwealth legislation, such as the Occupational Health
and Safety (Commonwealth Employment) Act 1991, Trade Practices
Act 1974, and Prices Surveillance Act 1983. Offence provisions
such as these are needed to deter and deal with deliberate acts to obstruct
the inquiry process.
Approval of Actions
Person's Environmental History
8.58 Clause 136(4) enables the Minister to consider whether the person
proposing an action is a suitable person to be granted an approval, having
regard to the person's history in relation to environmental matters. Key
industry groups opposed this provision on the basis that it provided `considerable
scope for the introduction of extraneous issues into what can only be
a subjective decision making process'. [38]
8.59 The Committee considers that it is legitimate for the Minister to
consider the person's environmental history, as this may be relevant to
whether the person is likely to comply with conditions placed on an approval.
Setting Conditions
8.60 Industry groups were concerned that under the Bill conditions may
be attached to approvals without reference to, or consultation with, the
proponent:
Proponents should have a right to appeal or negotiate conditions set
on a project approval, with the aim of achieving the same environmental
objectives with lesser commercial or operational impact on the proposed
project. [39]
8.61 One witness advocated a process similar to that available in New
South Wales, whereby industry is able to consult with the government;
the government sets the standard that must be met but negotiates with
industry on how that standard is able to be achieved:
We are able to appeal the decision of the Minister and actually have
a court of law decide the outcome. An objector, in precisely the same
way, is able to appeal the decision of the Minister and the court of law
will decide the outcome. [40]
8.62 Industry groups also objected to clause 134(1)(b), which enables
the Minister to attach a condition to an approval if satisfied that the
condition is necessary or convenient for `repairing or mitigating damage
to a matter protected by a provision of Part 3 for which the approval
has effect (whether or not the damage has been, will be or is likely to
be caused by the action)':
If the matter protected by Part 3 is the marine environment, this power
could be used to address any rehabilitation to any part of the marine
environment in the Australian jurisdiction. The absence of any linkage
between the proposed actions and a condition that may be convenient for
addressing an entirely unrelated matter is unacceptable. [41]
8.63 The Committee notes that the Bill does not prevent the Minister
from consulting with the proponent in considering the nature of the conditions
and their cost-effectiveness.
8.64 The Committee also notes that in deciding whether to attach a condition
to an approval, the Minister must consider `the desirability of ensuring
as far as practicable that the condition is a cost-effective means for
the Commonwealth and the person taking the action to achieve the object
of the condition' (clause 134(4)(b)); relevant economic and social matters
(134(1)(b)) and the principles of ecologically sustainable development
(clause 134(2)), including the principle that `cost-effective and flexible
measures should be adopted' (clause 134(3)(b)(vi)).
8.65 The Committee believes that there are sound reasons for including
clause 134(1)(b) in the Bill. The Explanatory Memorandum states that the
intent of this clause is `to allow the Minister to impose a broad range
of conditions. For example, an approval to establish and maintain a road
in a World Heritage area could be subject to a condition that the person
rehabilitate an existing road in the area'. [42]
In this example, before approving the construction of the new road, it
may be necessary to revegetate an existing road corridor to counter the
additional cumulative impact on the World Heritage area which would result
from the new action.
8.66 In conclusion, the Committee considers that the Bill already imposes
sufficient constraints on decisions regarding conditions, which strike
an appropriate balance between protecting the interests of proponents
and enabling the Minister to set conditions needed to achieve the objects
of the Bill.
8.67 The Committee does consider, however, that it would be desirable
to provide for conditions that are expressed in terms of objectives and
outcomes, which allow proponents the flexibility to find the most appropriate
means for achieving the conditions. Such conditions would also need to
identify objective criteria by which the achievement of objectives and
outcomes would be assessed. The Committee recognises that such conditions
may not always be appropriate, for example, in situations where a more
prescriptive approach is necessary to avoid a significant impact on matters
protected under the Bill.
Recommendation 11
The Committee recommends that consideration be given to providing
for approval conditions which are expressed, where appropriate, in terms
of objectives and outcomes, and criteria for assessing the achievement
of those objectives and outcomes.
Compliance with Conditions
8.68 Peak industry groups raised concerns about the compatibility between
any conditions that might be set by the Commonwealth Minister and those
set by a State Minister or agency:
It is important that there should be no duplication or conflict in conditions
set by different levels of government. Commonwealth conditions would be
best applied through relevant State agencies where there is joint responsibility
and potentially where there is sole Commonwealth responsibility. [43]
8.69 The Western Australian Government also raised the potential for
duplication between Commonwealth and State processes and systems for compliance
auditing and enforcement and suggested that the Bill provide for `State
condition setting, compliance auditing and enforcement provisions to be
accredited by the Commonwealth'. [44]
8.70 The Committee notes that where a bilateral agreement accredits decisions
made by a State, the State will have sole responsibility for setting,
monitoring and enforcing conditions relevant to the protection of matters
of national environmental significance: there will be no duplication between
the Commonwealth and the State.
8.71 Where the State assessment process is accredited, but not the State
approval process, the Commonwealth Minister is responsible for setting
any conditions in relation to matters of national environmental significance.
The Committee notes that in deciding whether to attach a condition to
an approval, the Minister must consider `any relevant conditions that
have been imposed under a law of a State or self-governing Territory'
and `the desirability of ensuring as far as practicable that the condition
is a cost-effective means for the Commonwealth and the person taking the
action to achieve the object of the condition'. [45]
The Committee considers that these provisions will ensure that the Commonwealth
Minister can avoid unproductive duplication of conditions imposed by the
State.
8.72 In some cases the Commonwealth may choose to rely on State-imposed
conditions to ensure the protection of matters of national environmental
significance. In those cases, clause 134(3)(c) enables the Minister to
set conditions that require compliance with `conditions specified in an
instrument (including any kind of authorisation) made or granted under
a law of a State or self-governing Territory'. This would, in effect,
accredit the conditions imposed by the State or Territory. In addition,
clause 398 would enable the Minister to enter into arrangements for State
and Territory officers or employees to be inspectors with functions and
powers relating to the monitoring and enforcement of conditions and other
matters covered by the Bill.
8.73 The Committee therefore concludes that the concerns raised above
are addressed adequately in the Bill.
Revocation of Approvals and Variation of Conditions
8.74 Industry groups expressed strong views about the need for a compensation
mechanism where an approval, granted under Part 9 of the Bill, is revoked,
or where conditions attached to an approval are varied by the Minister.
For example, the Association of Mining and Exploration Companies submitted
that:
Division 3 provides the Minister with an unconstrained ability to change
conditions and to suspend and revoke approvals. The uncertainty this section
creates from an industry perspective is significant. It is simply unacceptable
to expect the mining industry, or indeed any industry, to operate on the
basis that at any time the Minister can of his/her own accord, change
the conditions applicable to a project or revoke an approval.
While AMEC appreciates the need to incorporate in the legislation a degree
of flexibility with respect to condition setting, the unilateral nature
of the regime proposed is certain to generate considerable industry uncertainty
and commercially unacceptable levels of risk. [46]
8.75 A number of submissions suggested that the Bill provide for reconsideration
by the Minister of decisions relating to approvals and conditions. Key
industry groups recommended that the Bill be amended to provide for a
specific mechanism for variation of conditions and determination of compensation:
Industry therefore considers that the first part of this Division should
give power to the Minister to change conditions in response to an application
by the proponent. A small variation in order to cope with a small change
(of say refining process) could be handled without a formal procedure;
a larger change may need a process that has some of the characteristics
of the original application.
The second part should empower the Minister cooperatively with the proponent
to develop an appropriate change to conditions to cope with unforeseen
impacts. If the change is one that is to accommodate a change of expectation
of the Minister, there should be a mechanism for the Government to contribute
to the cost of that change. There should be some independent mechanism
to determine the appropriateness of the change and the distribution of
costs in the event of a dispute.
The third part should establish a mechanism for the Minister to approach
some independent mediator if he/she has reason to believe that conditions
are not being met or damage is being caused. This part would establish
the rights of the Minister and the rights of the proponent, and mechanisms
to direct activities, allocate costs, make penalties, change conditions,
etc. The capacity to revoke approval would only reside with an independent
mechanism, and only apply as a final resort. [47]
8.76 The Committee notes that the Minister's ability to revoke an approval
is tightly constrained. An approval can only be revoked if a significant
impact on a matter protected under Part 3 of the Bill has occurred because
of a contravention of a condition attached to an approval, or if an action
has had or will have a significant impact that was not identified in assessing
the action and the approval would not have been granted if the information
that the Minister has about that impact had been available when the decision
to approve the action was made. [48]
8.77 The Committee considers that the revocation of an approval is fully
justified where a contravention of a condition results in a significant
impact on a matter protected by the Bill. However, revocation raises valid
concerns in cases where unpredicted impacts occur through no fault of
the proponent and where the proponent has complied with the duty to provide
accurate information. [49]
8.78 In such cases, the Committee believes that, in the first instance,
the Minister would normally attempt to come to an agreement with the approval
holder regarding the revocation, variation or addition of conditions that
might be needed to address the unpredicted impacts. The Minister could
suspend the approval if necessary while discussions take place. Finally,
the revocation of an approval would only be used as a last resort if the
unpredicted impact could not be mitigated through the revocation, variation
or addition of conditions.
8.79 The Committee believes that the proponent's interests would be adequately
protected in such cases if the Bill required the Minister to seek to revoke,
vary or add conditions in such a way as to mitigate the unforeseen impact,
before revoking an approval. The Committee also considers that the Bill
could explicitly require consultation with the proponent regarding the
revocation, variation or addition of conditions. With these changes further
amendments to deal with `major' and `minor' variations to conditions,
as proposed above, would be unnecessary.
Recommendation 12
The Committee recommends that clause 145(2) of the Bill be amended
to require that where an unforeseen environmental impact arises from an
approved action, the Minister may not revoke the approval unless satisfied
that conditions attached to the approval cannot be revoked, varied or
added in such a way as to mitigate that impact. The Committee further
recommends that the Minister be required to consult with the proponent
regarding any revocation, variation or addition of conditions.
8.80 The Committee does not agree with the proposal to establish a mediation
mechanism, as proposed by industry groups, which would appear to have
judicial powers. Such a mechanism, which appears to be modelled on the
various land and environment courts in the States, would duplicate the
functions of the Federal Court.
Transfer of Approvals
8.81 Key industry groups considered it important that the Bill provide
for the transfer of approvals:
Industry also considers it important to set in place a simple and secure
system that allows ownership of approvals and responsibility to meet conditions
to be readily transferred with change of ownership or management of the
project. [50]
8.82 Under clause 133 an approval must name the person who may take the
action. If the ownership or management of a project were to change, the
approval would need to be revoked and replaced by a new approval following
some form of assessment. The Committee agrees with the suggestion by industry
groups that the Bill provide for a system for the transfer of an approval.
Recommendation 13
The Committee recommends that the Bill provide for a simple and secure
system for the transfer of an approval where a project changes ownership
or management.
Strategic Assessment
8.83 The Bill provides for the conduct of strategic assessments. A strategic
assessment is an assessment of actions that may be carried out under a
proposed policy, plan or program. Strategic assessment of a policy, plan
or program allows for the early assessment of the cumulative and regional
impacts of relevant individual actions under that policy, program or plan.
Clause 146 sets out the minimum requirements for a strategic assessment,
allowing flexibility as to how these requirements can be implemented.
8.84 The outcomes of a strategic assessment may be taken into account
in deciding what the appropriate assessment approach is for each individual
action under the policy, plan or program. If the strategic assessment
assesses all of the relevant impacts of the actions under the policy,
plan or program, the Minister may declare under clause 33 that actions
approved by the Commonwealth or a Commonwealth agency in accordance with
the policy, plan or program do not need approval. [51]
8.85 The purpose of this provision is to provide an incentive for government
agencies and other proponents to incorporate environmental considerations
at the earliest possible stage in the development of policies, programs
and plans. [52]
8.86 Key conservation groups claimed that the provisions on strategic
assessment were `fundamentally flawed' and would undermine the assessment
and approval process under the Bill, on the grounds that:
- the Bill regards strategic assessment as `merely another way of exempting
actions from the Bill's normal assessment and approval processes';
- the Minister's decision to enter into an agreement can be a de
facto approval for actions that are assessed;
- there are almost no environmental safeguards for the report resulting
from a strategic assessment; and
- there is no mechanism for review of agreements or actions covered
by an agreement, even if there is a substantial change in circumstances.
[53]
8.87 Conservation groups suggested that Division 1 of Part 10 of the
Bill be deleted and new provisions included to require each government
policy, program and legislative proposal likely to have a significant
impact on the environment to be assessed before it is finalised:
This type of strategic EIA would be geared for the earliest possible
intervention, would address cumulative impacts, and would be mandatory.
This would be a powerful tool for the integration of environmental factors
into Governmental decision making processes – one of the key aims
of ESD. Government functions such as these have been subject to assessment
in the US under the National Environmental Policy Act since 1969.
[54]
8.88 In response to these criticisms Mr Beale, Secretary of the Department
of the Environment and Heritage, told the Committee that:
Some groups have also raised concerns about the provision for strategic
assessment. They have asserted that strategic assessments can be used
to exempt projects from the main assessment and approval requirements
of the Bill. That is not true. Some activities may have significant cumulative
impacts on the environment. However, assessing individual activities will
not address this cumulative impact. Strategic assessment allows these
cumulative impacts to be assessed comprehensively. The Minister may use
the results of the strategic assessment to decide upon a more efficient
approach for assessing individual actions. However, individual actions
taken under a plan, policy or program will still require assessment and
approval. A strategic assessment \DB\PGN\161may be taken into account
when the Minister makes a declaration or a bilateral agreement. The safeguards
built into bilateral agreements and declarations will then apply to approvals
under the plan, policy or program. [55]
8.89 In the Committee's view, a reading of the Bill does not bear out
the above criticisms. A strategic assessment would not automatically exempt
an action from assessment or approval under the Bill. There are a number
of steps involved before actions covered by a policy, plan or program
may be exempted from approval by virtue of a strategic assessment:
- the Minister must endorse the policy, plan or program;
- following endorsement, the Minister must declare under clause 33 that
actions taken under the policy, plan or program do not need approval
under the Bill, or the Minister must enter into a bilateral agreement
that declares actions approved in accordance with the policy, plan or
program do not require approval under the Bill; and
- the actions must be approved in accordance with the policy, plan or
program and in accordance with the relevant declaration or bilateral
agreement.
8.90 If a strategic assessment does not result in a declaration under
clause 33 or in a bilateral agreement, actions under the policy, plan
or program must be assessed and approved under the normal process set
out in the Bill. However, if the relevant impacts of individual actions
under the policy, plan or program are addressed by the strategic assessment
report, the Minister may decide on a less onerous approach for assessing
those actions. For example, the Minister may decide that the impacts of
an individual action should be assessed through a public environment report
rather than an environmental impact statement.
8.91 The Committee considers, therefore, that there is no justification
for the claim that the Minister's decision to enter into an agreement
to undertake a strategic assessment is a de facto approval for
actions. Entering an agreement in itself has no effect on the need for
assessment under Part 8 and approval under Part 9 of the Bill.
8.92 The Committee also believes that the Bill provides clear safeguards
for the strategic assessment report and decisions flowing from the report.
A draft report must be published for public comment under clause 146(2)(b)
and comments must be taken into account in finalising the report under
clause 146(2)(c). The Minister may only endorse the policy, plan or program
if the report adequately addresses the relevant impacts of actions to
be taken under the policy, plan or program and the policy, plan or program
has been modified to reflect any recommendations by the Minister. Any
provision in a bilateral agreement based on a strategic assessment must
meet the prerequisites for bilateral agreements, as discussed in Chapter
8 of this report. If the action is in breach of a declaration or bilateral
agreement, it will be subject to the assessment, approval, compliance
and enforcement provisions under the Bill.
8.93 There is no need to provide for the review of strategic assessment
agreements as these have no effect on the approval or otherwise of actions
taken under a policy, plan or program. On the other hand, declarations
which cover actions taken in accordance with an endorsed policy, plan
or program may be revoked or replaced if necessary. All provisions of
bilateral agreements, including those relating to actions taken in accordance
with an endorsed policy, plan or program, must also be reviewed under
clause 65.
Assessment of Commonwealth-Managed Fisheries
8.94 The Bill provides that the Australian Fisheries Management Authority
(AFMA) must make agreements for the strategic assessment of actions in
fisheries managed under the Fisheries Management Act 1991. An agreement
must be made whenever it is proposed to make a management plan or a determination
not to have a plan. An agreement must be made within five years of the
commencement of the EPBC Act for all fisheries that did not have plans
at that commencement. Similar provisions apply to policies and plans for
managing fishing under the Torres Strait Fisheries Act 1984. If
the Minister endorses a policy or plan assessed in this way, the Minister
must make a declaration that actions under the policy or plan do not need
approval under Part 9 of the Bill for the purposes of clause 23 (which
protects the marine environment).
8.95 A number of witnesses welcomed the provisions for strategic assessment
of fisheries. [56] The fishing industry, however,
was concerned about the mandatory nature of the provisions. It argued
that the Bill would `effectively make Environment Australia and its Minister
a de facto fisheries manager, necessarily unable to avoid the political
influence which has bedevilled Australian fisheries management and throughout
the world as well in the past'. [57] The industry
proposed that the whole of the Fisheries Management Act or the AFMA fisheries
management plan development process be accredited. [58]
8.96 The Department of the Environment and Heritage provided evidence
on the need for strategic assessment of fisheries management plans:
The experience with fisheries management around the world, including
the collapse and overfishing of major fisheries, illustrate the need for
rigorous environmental assessment of fisheries. The purpose of the strategic
assessment provisions regarding fisheries is to ensure an appropriate
examination of environmental impacts of a fishery at the management plan
level. Clearly this is the more appropriate level to conduct an environmental
assessment of a fishery, rather than trying to individually assess each
fisherman's operations. The strategic assessment provisions provide for
an appropriate level of assessment in relation to each fishery and provide
a high level of certainty for individual participants in the fishery.
This approach is consistent with the Government's Oceans Policy. Under
existing legislation the decision to approve a management plan is a trigger
for the EPIP Act. [59]
8.97 The Committee considers that the Bill provides for a sound strategic
approach to the assessment of the impacts of fishing. In the Committee's
view it is entirely appropriate for the Environment Minister to have input
into decisions which may have a significant impact on the marine environment.
The Committee believes that claims that the Environment Minister will
become a de facto fisheries manager are unjustified. The Bill does
not require AFMA and the Minister administering the Torres Strait Fisheries
Act to take account of any recommendations relating to a fisheries policy
or plan, which are made by the Environment Minister following a strategic
assessment.
8.98 The Committee notes that the Fisheries Management Act does not provide
for a detailed environmental assessment process which could be accredited,
and notes the advice from the Department of the Environment and Heritage
that the environmental impacts of fisheries management plans are currently
assessed under the EPIP Act. However, the Bill enables the Environment
Minister to accredit fisheries management legislation and/or planning
processes which meet the requirements under the Bill and any regulations.
Rules about Timing
8.99 Industry welcomed the establishment of timelines for many parts
of the assessment and approval process but was concerned that:
- the Bill does not provide for timelines for the preparation of guidelines
on the content of a draft public environment report or environmental
impact statement;
- recurring delays may result from requests by the Minister for further
information; and
- delays may result from the need for the Minister to approve the publication
of all draft documents prepared for assessment on preliminary documentation;
draft public environment reports and environmental impact statements,
under clauses 94(2), 99(3) and 104(3). [60]
8.100 The Bill requires guidelines to be prepared for the content of
a draft public environment report or environmental impact statement before
the proponent is able to prepare the draft report or statement. The Committee
notes that this is the only substantive step in the assessment process
for which the Bill does not stipulate a timeline. The Committee considers
it important to address this gap to ensure that the timelines for the
overall process are well defined.
Recommendation 14
The Committee recommends that the Bill specify appropriate timelines
for the development of guidelines for the content of public environment
reports and environmental impact statements.
8.101 The Committee notes that the Bill enables the Minister to request
further information in certain circumstances, where the information that
has been provided is not adequate to allow an informed decision [61]
and to refuse to accept finalised reports prepared by the proponent for
consideration by the Minister. The Committee appreciates the concern of
industry groups that these provisions may result in delays. However, the
Committee considers that these provisions are essential to ensure there
is rigour in the assessment and approval process and to prevent the Minister
being `steamrolled' into making decisions on the basis of insufficient
information. Similar provisions are included in a range of Commonwealth
legislation. [62]
8.102 The Committee notes that the Bill offers a safeguard against the
abuse of the provisions by requiring the Minister to have reasonable
grounds for believing that he or she does not have enough information
to make an informed decision. [63]
8.103 Some witnesses raised concerns about the timing of assessment processes
and the short time for decision making:
if you are doing a flora survey, for example, you have to do it in Spring.
If your three months is over summer, you are in trouble. What about migratory
species? A lot of our areas, particularly in the north of Australia, have
migratory species. If you happen to do the survey at the wrong time of
the year when the migratory species have migrated somewhere else, you
are missing valuable parts of your environment. [64]
8.104 In the Committee's view the Bill responds to calls for the assessment
and approvals process to be streamlined, and to incorporate clear timelines,
while ensuring that the process is rigorous. The Committee notes that
in cases where more information is required to make an informed decision,
there are provisions to `stop the clock' while more information is obtained.
Footnotes
[1] The above information was extracted from
Commonwealth Environmental Impact Assessment: An Outline of the Commonwealth
Environmental Impact Assessment Process, 1998, a brochure prepared
by the Department of the Environment and Heritage.
[2] Minerals Council of Australia, Submission
335, p 6. Also, Mr Michael Krockenberger, Australian Conservation Foundation,
Proof Committee Hansard, Melbourne, 18 March 1999, p 282.
[3] Mr Neville Henwood, Northern Territory Minerals
Council, Proof Committee Hansard, Darwin, 17 March 1999, p
275.
[4] Mr Mark Dwyer, Law Council of Australia,
Proof Committee Hansard, Canberra, 4 March 1999, p 118.
[5] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 282.
[6] Proof Committee Hansard, Canberra,
4 March 1999, p 160.
[7] Mr Michael Krockenberger, Australian Conservation
Foundation, Proof Committee Hansard, Melbourne, 18 March 1999,
p 282. Also, Environmental Defender's Office, Submission 15, p 16; Humane
Society International, Submission 554, p 2; Coast and Wetlands Society,
Submission 272, p 2; National Environmental Law Society, Submission 522,
p 2; Associate Professor Janet McDonald, Submission 152, p 1.
[8] Associate Professor Janet McDonald, Submission
152, pp 1-2.
[9] Minerals Council of Australia, Submission
335, p 21. Also, Association of Mining and Exploration Companies, Submission
436, p 26.
[10] Association of Mining and Exploration
Companies, Submission 436, p 26.
[11] Minerals Council of Australia, Submission
335, pp 21-22.
[12] Ms Tamara Stevens, Association of Mining
and Exploration Companies, Proof Committee Hansard, Perth, 26 February
1999, p 66; Mr David Buckingham, Business Council of Australia, Proof
Committee Hansard, Melbourne, 18 March 1999, p 311.
[13] Proof Committee Hansard, Canberra,
4 March 1999, p 174.
[14] Proof Committee Hansard, Canberra,
4 March 1999, p 175.
[15] Proof Committee Hansard, Canberra,
4 March 1999, p 175.
[16] The Minister must also take these principles
into account in making recovery plans, threat abatement plans, wildlife
conservation plans and conservation orders.
[17] For example, Miss Emily Harris, Environmental
Defender's Office (Tasmania), Proof Committee Hansard, Hobart,
19 February 1999, p 27; Mrs Mary Rimington, Mordialloc Beaumaris Conservation
League, Proof Committee Hansard, Melbourne, 18 March 1999, p 318;
Humane Society International, Submission 554, p 17; Otway Planning Association,
Submission 502, p 1.
[18] Environmental Defender's Office, Submission
15, p 17.
[19] Associate Professor Janet McDonald, Submission
152, p 1.
[20] Explanatory Memorandum, p 46.
[21] Minerals Council of Australia, Submission
335, p 20.
[22] Proof Committee Hansard, Canberra,
4 March 1999, p 179.
[23] Environmental Defender's Office, Submission
15, p 19.
[24] Mr James Johnson, Environmental Defender's
Office, Proof Committee Hansard, Sydney, 4 February 1999, p 83.
[25] Explanatory Memorandum, p 46.
[26] Minerals Council of Australia, Submission
335, p 20.
[27] Minerals Council of Australia, Submission
335, p 20.
[28] For example, Environmental Defender's
Office, Submission 15, p 20; National Environmental Law Association, Submission
522, p 2; Law Council of Australia, Submission 610, p 5.
[29] Environmental Defender's Office, Submission
15, p 20.
[30] Proof Committee Hansard, Canberra,
4 March 1999, p 160.
[31] Mr James Johnson, Environmental Defender's
Office, Submission 15, p 80.
[32] Associate Professor Janet McDonald, Proof
Committee Hansard, Brisbane, 28 August 1998, p 299.
[33] Proof Committee Hansard, Sydney,
4 February 1999, pp 122-123.
[34] Environmental Defender's Office, Submission
15, p 21. Also, Mr Michael Krockenberger, Australian Conservation Foundation,
Proof Committee Hansard, Melbourne, 18 March 1999, p 283.
[35] Commonwealth Environmental Impact Assessment:
An Outline of the Commonwealth Environmental Impact Assessment Process,
1998, a brochure prepared by the Department of the Environment and Heritage.
[36] Environmental Defender's Office, Submission
15, p 21.
[37] Minerals Council of Australia, Submission
335, p 21.
[38] Minerals Council of Australia, Submission
335, p 24.
[39] Minerals Council of Australia, Submission
335, p 24.
[40] Ms Rosemary Streeter, New South Wales
Minerals Council, Proof Committee Hansard, Sydney, 4 February
1999, p 104.
[41] Minerals Council of Australia, Submission
335, p 23. Also, Mr Peter Cochrane, Australian Petroleum Production and
Exploration Association, Proof Committee Hansard, Canberra, 4 March
1999, p 101.
[42] Explanatory Memorandum, p 55.
[43] Minerals Council of Australia, Submission
335, p 24.
[44] Government of Western Australia, Submission
241, p 3.
[45] Clause 134(4).
[46] Association of Mining and Exploration
Companies, Submission 436, pp 26-27.
[47] Minerals Council of Australia, Submission
335, pp 24-25.
[48] Clause 145.
[49] Clauses 489 to 492 create offences for
providing false or misleading information to obtain an approval or permit;
in response to a condition, approval or permit; or to an authorised officer.
[50] Minerals Council of Australia, Submission
335, p 22.
[51] Explanatory Memorandum, p 57.
[52] Senator the Hon Robert Hill, Reform
of Commonwealth Environment Legislation: Consultation Paper, February
1998, p 16.
[53] Environmental Defender's Office, Submission
15, p 25.
[54] Environmental Defender's Office, Submission
15, p 10.
[55] Mr Roger Beale, Department of the Environment
and Heritage, Proof Committee Hansard, Canberra, 4 March 1999,
pp 160-161.
[56] For example, Humane Society International,
Submission 554, p 18.
[57] Mr Brian Jeffriess, Tuna Boat Owners Association
of Australia, Proof Committee Hansard, Adelaide, 12 March
1999, p 228. Also, Mr Bill Nagle, Australian Seafood Industry Council,
Proof Committee Hansard, Canberra, 4 March 1999, p 123; Northern
Territory Fishing Industry Council, Submission 632, pp 1-2; South Australian
Fishing Industry Council, Submission 622, pp 6-7.
[58] Australian Seafood Industry Council, Submission
154, p 4; Tuna Boat Owners Association of Australia, Submission 631, pp
3-4.
[59] Department of the Environment and Heritage,
supplementary information, 1 April 1999, Attachment D, p 8.
[60] Minerals Council of Australia, Submission
335, p 21.
[61] Clauses 76, 89, 132.
[62] For example, section 21 of the Petroleum
(Submerged Lands) Act 1967; section 27 of the Industrial Chemicals
(Notification and Assessment) Act 1989; and section 34 of the Australia
New Zealand Food Authority Act 1991.
[63] For example, clause 89 states: `If the
Minister believes on reasonable grounds that the information given to
the Minister in relation to an action is not enough to allow the Minister
to make an informed decision on the approach to be used for assessment
of the relevant impacts of the action, the Minister may request the designated
proponent to provide specified information relevant to making the decision.'
[64] Ms Rachel Siewert, Conservation Council
of Western Australia, Proof Committee Hansard, Perth, 26 February
1999, p 179.
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