Senate Environment, Communications, Information Technology and the Arts Committees

Commonwealth Environment Powers
Table of Contents

Executive Summary

The large number of submissions (367) received by this inquiry highlight the importance attached by many citizens to the role of the Commonwealth in environmental management in Australia. However, the majority of those submissions deplored the recurrent lack of political will and leadership on the part of all Commonwealth Governments to employ the extensive power they possess in order to protect and conserve the environment which is every Australian's common legacy.

It is the view of the Committee that the Commonwealth Government has the Constitutional power to regulate, including by legislation, most, if not all, matters of major environmental significance anywhere within the territory of Australia. The panoply of existing Constitutional heads of power confers on the Commonwealth extensive legislative competence with respect to environmental matters.

The Committee appreciates that while the Commonwealth possesses extremely wide Constitutional powers over the environment, that power is not entirely unlimited. With an express environmental power, the legislative result would be Constitutional uncertainty.

It is the view of the Committee that a large part of remaining Constitutional uncertainty surrounding the environmental use of existing Commonwealth power could be greatly alleviated by the use of independent Environmental Law and Constitutional Law experts. An independent statutory Environmental and Constitutional Law Experts Commission (made up, for example, of members from Commonwealth, State and Territory Attorney's-General Departments, academics, private practitioners, and lawyers with environmental community legal centres such as the Environmental Defender's Office) could advise the Government if, when, and how, the Commonwealth should legislate with respect to environmental matters. An ECLC could also monitor, review and advise on the government's execution of its responsibilities for environmental protection and ecologically sustainable development.

The Committee is critical of the narrow approach adopted by the Government in the Environment Protection and Biodiversity Conservation Bill 1998 where only six of the 30 matters listed in the Council of Australian Governments (COAG) Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment are `matters of national environmental significance' which act as triggers for Commonwealth environmental assessment and approvals. The Committee has argued strongly in any case for the Commonwealth to take a proactive role in environmental management. It does not see the `matters of national environmental significance' approach as being particularly useful and has recommended that it be abandoned.

It is also expressly limiting the wide-ranging environmental powers the courts and Constitution have conferred. The Committee sees this as a deliberate attempt to constrain the environmental powers of the Commonwealth, which cannot be justified.

The Committee was struck by the strong support expressed in submissions for Commonwealth leadership and involvement in the protection of sites that come under the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Ramsar Convention. In the Committee's view, the Commonwealth should acknowledge that it has ultimate responsibility for the safekeeping of World Heritage areas. The Commonwealth should not only exercise primary legal control over the protection, preservation and management of these areas but it should also ensure that they are further protected by extending its legislative powers over a defined and adequate buffer zone around World Heritage properties which takes into account the natural ecosystem to which the World Heritage listed area belongs.

The Committee notes that the Intergovernmental Agreement on the Environment (IGAE) supports the precautionary principle, as does the Committee. A cautious approach is absolutely vital: once a pristine area has been damaged it is often too late for the Commonwealth to act. The only safe (and in the Committee's view, the only responsible) approach is to protect an area while it is being assessed so that their unique properties are conserved in the event of inclusion under Conventions and Agreements.

On the issue of conservation of biological diversity, the Committee believes that the confluence of the Convention on Biological Diversity and the external affairs power enables the Commonwealth to unilaterally promulgate national requirements for the environmental impact assessment of all proposed projects, regardless of jurisdiction, likely to have a significant impact on the biological diversity anywhere in Australia. Consequently, the Committee believes that the Commonwealth should establish such national environmental impact assessment standards for the benefit of protecting our biological and ecological resources.

The Committee is mindful of the roles of State and local governments in environmental protection but the Committee is of the view that strong national leadership, with uniform national environmental standards for environmental regulation are the most effective and efficient way to approach environmental regulation. The Committee believes that once minimum national standards are set by the Commonwealth, the accreditation of state and local environmental assessment programs that either meet or beat these standards has a vital role to play in environmental protection in Australia. But the Commonwealth retains approval power for all environment matters of Commonwealth interest.

National standards must be reinforced by improving opportunities for community participation. Accordingly the Committee is recommending open standing provisions to allow public access to the courts in order to test the validity of governmental decision and restrain breaches of the law and increased funding for conservation groups such as the Environmental Defender's Offices (EDOs).

Finally, as the twentieth century draws to a close, the Committee recommends changes to the Constitution that would better equip the Commonwealth to play a strong national role in environmental protection into the twenty-first century.