CHAPTER 3
USING COMMONWEALTH ENVIRONMENT POWERS UNDERLYING CONCERNS
Support for greater Commonwealth involvement
3.1 There was overwhelming support in submissions for the Commonwealth
to take a leadership role in environmental matters and the Committee also
supports this view. In most cases this was coupled with a distrust of
States' government's willingness to `do the right thing' in protecting
important sites.
3.2 The Committee notes that the view has been put that Commonwealth's
initial entry into the field of environmental regulation and continued
and growing involvement has generally followed inaction on the part of
States and considerable pressure from the community to do something to
prevent ongoing environmental harm. [1]
3.3 The reason for that distrust was partly explained by the Tasmanian
Wilderness Society who argued that State governments merely viewed the
environment in terms of economic or political values:
State land decisions are based on their economic or political worth rather
than what we the people, believe is most appropriate or what is morally
right. It is imperative that the Commonwealth retain its powers as state
watchdog. You are representing the nation as a whole and the future of
this country rests on your shoulders. [2]
3.4 Others simply felt that the Commonwealth is better equipped to muster
the expertise and fund the resources (including in the provision of `objective',
scientifically based assessments) needed for adequate protection of important
areas. Hence Mr Peter Oastler made this point:
The Commonwealth Government in Australia should have a greater role in
nature conservation and protected area management. State borders have
no relevance to ecological processes. Water flows, catchment issues and
species distributions extend beyond State borders as demonstrated in numerous
national campaigns to protect particular areas and the movement of domestic
tourists around the country.
…While it may be appropriate for the Commonwealth to consult with
the States regarding reservation of natural areas and listing on the National
Estate, there needs to be some assurance that the process results in a
comprehensive, representative reserve system. Identification and reservation
should be done on a scientific basis to ensure adequate protection of
biodiversity and ecological/evolutionary processes. This should be coordinated
by a Commonwealth Government agency. [3].
3.5 The Co-ordinator of the North Queensland Conservation Council advocated
the United States model:
There is an urgent need for umbrella-type legislation from the Commonwealth
in order to ensure that the minimum standards are met… If the kind
of structure that exists in the United States were applied here and if
minimum standards were set by the Commonwealth government, that would
allow the states to set their own legislation provided that it met minimum
standards and provided that they were willing to enforce the laws that
they pass. [4]
3.6 However some submissions supported both a strong leadership role
for the Commonwealth and the principle of accreditation of States' processes
by the Commonwealth. The Queensland Division of the Royal Australian Planning
Institute for example argued that the Commonwealth `must ensure that national
interests are properly safeguarded' and suggested that the way to do this
would be for the Commonwealth to `undertake accreditation of the processes
of environmental impact assessment and reserve the right to intervene
when matters of national interest are involved, becoming involved early
on in these cases'. [5]
3.7 A large number of submissions also expressed alarm that the Commonwealth
was winding back its responsibilities for the environment.
Recommendation 3
The Commonwealth should exercise a leadership role in the protection
and improvement of the Australian environment. This role should be supported
by the unsparing use of all Constitutional power available to the Commonwealth
to act in the field of the environment.
Cooperative federalism
3.8 As mentioned, the vast majority of submissions expressed the view
that the Commonwealth should do more for the environment. A large number
of submissions believed that the Commonwealth often used the lack of an
explicit environmental head of power as an excuse not to act. [6]
3.9 By contrast, a small number of submissions claimed that the Commonwealth
is unnecessarily intruding into areas that are primarily State responsibilities
by using its environment powers. Concerns were expressed about undesirable
duplication of bureaucratic processes and some argued that the Commonwealth's
role should adapt to recognise the developments in State law since the
early 1970s when environmental regulation was not as well advanced as
that of the Commonwealth.
3.10 Since the mid-1980s the second view has been ascendant within dominant
sections of government and industry, leading to the policy of `co-operative
federalism'; a policy which holds that the Commonwealth should take the
lead on matters of national significance and national coordination, while
pulling back from direct command and control of other matters which have
traditionally been regulated by State laws.
3.11 As a result, at a special Premiers' conference on 31 October 1990
the Commonwealth and the States/Territories agreed to make an Intergovernmental
Agreement on the Environment (IGAE). This was concluded on 1 May 1992.
Among other things, the IGAE tried to better define the roles of the levels
of government in environment protection, to provide greater certainty
to proponents of development, and to reduce disputes between the Commonwealth
and the States.
3.12 The Committee notes that the IGAE is a `political compact' rather
than a legal document. [7] It is unlikely that
it is enforceable by the parties inter se or otherwise. Participation
is purely voluntary. And, any party can renounce it without penalty at
any time.
3.13 In 1995 the Intergovernmental Committee on Ecologically Sustainable
Development (ICESD) completed a review of the IGAE. In 1996, following
a change in Government, the Council of Australian Governments (COAG),
a ministerial council, commenced a broad review of Commonwealth/State
Roles and Responsibilities for the Environment.
3.14 The Committee notes that while COAG released a Consultation Paper
in December 1996, [8] public input into the
review process under COAG procedures was extremely limited and select.
Consequently, the Environmental Defender's Office viewed this Committee's
inquiry as an attempt to include broad public participation in an assessment
of the nature and appropriate use of Commonwealth environment powers in
preparation for the challenges of the 21st Century. [9]
3.15 The outcome of the COAG Review was a Heads of Agreement on Commonwealth/State
Roles and Responsibilities for the Environment, released on 7 November
1997. The COAG Heads of Agreement limits the focus the Commonwealth role
to matters of "national environmental significance". It lists
seven matters which are viewed as the responsibility of the Commonwealth
Government and should serve as triggers (and the only triggers) of Commonwealth
environmental assessment and approval processes. These are:
1. properties in relation to which the Commonwealth has responsibilities
under the World Heritage Convention;
2. wetlands listed under the Ramsar Convention
3. places of national significance
4. nationally endangered or vulnerable species and communities
5. migratory species and cetaceans
6. nuclear activities
7. management and protection of the marine and coastal environment.
3.16 These matters (excluding 3: `places of national significance') are
considered to be the `matters of national environmental significance'
subject to Commonwealth environmental assessment and approvals in the
Environment Protection and Biodiversity Conservation Bill 1998.
3.17 The COAG heads of agreement lists an additional 23 `matters of national
environmental significance' where it is agreed that the Commonwealth has
`interests and obligations', but which should not serve as triggers for
Commonwealth environmental assessment processes or require Commonwealth
approvals. These are:
8. reducing emissions of greenhouse gases and protecting and enhancing
greenhouse sinks
9. regulation of ozone depleting substances
10. conservation of biological diversity
11. protection and management of forests
12. genetically modified organisms which may have an adverse impact on
the environment
13. agricultural, veterinary and industrial chemicals
14. matters requiring national environmental protection measures
15. management of hazardous wastes relating to Commonwealth obligations
arising from the Basel Convention
16. access to biological resources
17. international trade in wildlife
18. development and maintenance of national environmental and heritage
data sets arising from intergovernmental arrangements and international
obligations
19. applying uniform national emissions standards to motor vehicles
20. policies and practices of a State resulting in potentially significant
adverse external effects in relation to the environment of another State,
where the States involved cannot solve the problem
21. `national interest' environmental matters as covered by the Telecommunications
Act 1997
22. quarantine matters
23. aviation airspace management including assessment of aircraft noise
and emissions
24. Natural Heritage Trust Programs
25. implementation of the National Strategy for Ecologically Sustainable
Development
26. nationally significant feral animals and weeds
27. conservation of native vegetation and fauna
28. prevention of land and water degradation
29. matters that are from time to time agreed by the Commonwealth and
the States as being matters of national environmental significance
- `The Commonwealth also has a responsibility and an interest in relation
to proposals on Commonwealth lands and waters and proposals which are
beyond the jurisdiction of the States and Territories (eg foreign aid
proposals)'
3.18 Senator Hill's consultation paper on reform of Commonwealth Environment
legislation in March 1998, and the introduction of the Environment
Protection and Biodiversity Conservation Bill 1998, followed the COAG
Heads of Agreement. The Bill is seen as the first major reform of Commonwealth
environmental law since its inception.
3.19 The Committee notes that once again the consultation process in
connection with the review of Commonwealth environmental responsibilities
associated with the Bill was unsatisfactory. The consultation period on
these sweeping reforms contained in the consultation paper was less than
one month.
3.20 The Committee believes that the extremely limited list of Commonwealth
responsibilities is much too narrow and excludes Commonwealth responsibility
for the assessment and approval of matters not only of national significance,
but also of international significance.
3.21 Further the Committee is of the view that the Commonwealth has both
the power and responsibility to legislate with respect to all 30 items
(except item 20) identified as matters of national environmental significance
and should not be limited to items 1 - 7 of the COAG Heads of Agreement.
Indeed, the Committee notes that with respect to items 1, 2, 4 - 19, 21
- 24, and 30, there is apparent agreement between the parties to the Heads
of Agreement that the Commonwealth has the power to nationally regulate
these areas.
General summary of submissions
3.22 Submissions received in this inquiry fell into three main groups,
which may be broadly described as those advocating more centralist policies,
those advocating more federalist policies, and those lying in between.
3.23 Most numerous, coming mainly from conservation organisations, public
interest groups and a very large number of concerned individuals, were
those that typically stressed that `the Commonwealth has the power to
do more for the environment and should do more.' These submissions tended
to emphasise:
- That the Commonwealth has the responsibility for regulating matters
of national and international significance, as well as transboundary
issues within Australia. [10]
- That the States and local government are less trustworthy and less
sympathetic to the environment; either because they are more parochial
and more likely to favour local development interests against the broader
national interest in environmental protection; or (especially in the
case of local government) because they lack the resources and expertise
to administer environmental controls. Submitters who felt this way were
naturally wary of moves to delegate environmental approvals to the States
by means of accredited procedures: they argued that the Commonwealth
should always stand ready to take over if the State is not doing the
job properly.
- That national standards (for example, on pollution control) are necessary
to stop developers shopping around the States and bidding them off against
each other for the lowest environmental regulatory burden. [11]
3.24 Those submissions suggested a variety of ways in which the Commonwealth
could do more for the environment. For example, the Australian Conservation
Foundation suggested that:
- The Federal Government should ensure that environmental funding to
States is conditional on improved environmental performance.
- The Federal Government should set high national standards for environmental
protection (based on the best practice models from each State and around
the world), with ways to ensure the States meet the standards and targets
for their implementation.
- The Federal Government should fully implement its obligations and
responsibilities under international conventions and treaties.
- The Federal Government should ensure that all Governments maintain
and enhance broad standing provisions and third party appeal rights
for enforcing environmental laws in the Courts.
- The Australian Constitution should be amended to refer specifically
to the environment, so that the Commonwealth's environmental powers
are expanded and confirmed. [12]
3.25 The Humane Society International Inc. suggested that the Commonwealth's
role should include:
- Fully implementing Australia's international obligations, fulfilling
Constitutional responsibilities, and accepting responsibility for those
aspects of the environment which are most efficiently managed on a national
basis, such as the conservation of threatened species.
- setting `best practice' national environmental standards which are
the minimum base line from which states and territories can build their
own standards.
- providing national legislation which sets a benchmark for state and
territory governments to follow on key environmental issues of national
interest (eg. biodiversity, greenhouse, fisheries).
- co-ordinating nationally based information and monitoring on environmental
quality.
- providing tied funding for bioregionally based planning processes
such as the CYPLUS program for Cape York, to encourage state and local
actions based on principles of sustainability.
- integrating environmental considerations into the regional development
processes. [13]
3.26 In this first group, many submissions stressed the importance of
public participation in all governmental levels of environmental decision-making.
Many were critical of what they claimed was the Commonwealth's inadequate
implemention of international treaties (especially the World Heritage
Convention and the Ramsar Convention on wetlands). Many thought that the
Inter-Governmental Agreement on the Environment (IGAE) has been ineffective,
or were critical of the Commonwealth's performance on other national issues
such as greenhouse response or the national strategy for ecologically
sustainable development.
3.27 The second, smaller group of submissions came mainly from State
Governments, with some local councils. They considered that the Commonwealth
should be involved only in matters of national, not regional, significance.
They stressed the national standards should allow for regional differences.
They stressed the need to avoid duplication of bureaucratic processes,
and they supported mechanisms for the Commonwealth to accredit State environmental
assessment procedures. For example:
There should be a presumption that States' processes apply for the assessment
of development proposals. [14]
3.28 The Queensland Government said that reform to the roles and responsibilities
of the governments should be based on the following principles:
- outcome/client focus: the goal of these reforms should be improved
environmental outcomes on the ground and more efficient, streamlined
processes which better meet client needs;
- subsidiarity: policy development, administration and program delivery
should lie with the level of government best placed to deliver outcomes;
- co-operation: co-operative efforts between governments and with stakeholders
to achieve national obligations should be preferred over unilateral
action;
- efficiency: duplication and overlap should be minimised;
- seamlessness: complexity in policy and programs within and between
governments should be managed by governments, clients should experience
integrated processes;
- simplicity: administrative and legislative systems should be simple
to ensure ready compliance;
- transparency: the accountability for decision making and delivery
of outcomes should be clear and public;
- certainty: all levels of government and all clients should be aware
of the processes to be applied; and
- timeliness: administrative and legislative systems should be implemented
according to agreed timelines. [15]
3.29 Expressed so generally, it would be hard to find fault with these,
and the Committee doubts that any of the environmental groups who were
so mistrustful of the States would disagree. The disagreements arise in
detailed interpretation. The principle of `subsidiarity', for example,
raises the problem of deciding, case by case, which level of government
is in fact `best placed to deliver outcomes' - and who would be privileged
to make this decision.
3.30 The Committee notes, however, that disagreement over the Queensland
list would likely arise over the omission of a commitment to public participation.
A very large number of submissions highlighted the importance of public
participation in environmental decision-making. The Committee notes further
that the Commonwealth has explicitly committed itself to public participation
in Chapter 32 of the National Strategy for Ecologically Sustainable
Development and Principle 10 of the Rio Declaration on Environment
and Development.
3.31 The Committee also notes that the commitment to transparency might
be more imaginary than real among the States and Territories, with community
right to know legislation generally lacking, the ability to withhold reasons
for decisions and the use of the commercial in confidence doctrine to
keep documents from public view.
3.32 New South Wales argued that the Commonwealth should comply with
State/Territory environmental laws, and better regulate its own activities
that have environmental impacts, such as defence, airports, telecommunications,
and nuclear activities. [16]
3.33 The third group of submissions came from industry. These took a
middle ground: they were happy with a strong Commonwealth role in facilitating
nationally consistent policies and resolving cross-border issues; on the
other hand, they preferred the States to have main control of day-to-day
decision-making:
…[the Commonwealth's] leadership or coordination role needs to very
carefully evaluated and exercised and does not necessarily mean that the
Commonwealth should in all such cases be taking on-ground action or running
programs within States. [17]
3.34 The Minerals Council of Australia held that the aims should be:
- clarity
- transparency
- consultation with key stakeholders
- consistency
- removal of duplication and overlap
- efficiency
- cost-effectiveness
- accountability…
3.35 Industry considers that applying these criteria would result in
a clear process for determining the most appropriate level at which management
should occur. In most instances much of the Commonwealth's current responsibilities
would be undertaken by State and Territory authorities through accreditation
of relevant processes. [18]
3.36 The Committee notes that this pretty well tracks the guiding principles
in the reform of the environmental impact assessment process recommended
by the Commonwealth Environment Protection Authority in 1994. [19]
Absent again, however, is any recognition of the need for public participation
in environmental decision-making.
3.37 The National Association of Forest Industries felt that the primary
or substantial responsibility for the environment and land management
should remain with the States because:
- State governments remain the dominant or most substantial landowner
in every State;
- the State and Territories have been bestowed with the majority of
land management responsibilities, having commenced fulfilling these
responsibilities well before the time of federation, and more specifically
since white settlement; and
- the Commonwealth being granted specific powers at federation…
no such powers were granted specifically… with respect to the environment…
[20]
3.38 A number of submissions from all sides stressed the important role
of local government in environmental protection (given that important
land management powers are delegated to local government).
Local Government has a vital role in the preservation and management
of the natural environment. The commitment of Local Government to environmental
policies and programs is necessary for their long-term success. Local
Government has a key role in land and coastal management, planning and
infrastructure development, as well as waste management, and there has
the authority (although it is not necessarily compelled) to implement
Commonwealth environmental policies at the local area level. [21]
3.39 Submissions stressed the role of local knowledge in solving local
problems, and the importance of grassroots action - hopefully hampered
as little as possible by the bureaucratic demands of the higher levels
of government. [22]
Issues underlying the Inquiry
Environmental outcomes versus administrative efficiency
3.40 The focus of most submissions from conservation organisations, public
interest groups and many individuals was improved environmental protection
and greater public participation in environmental decision-making. The
focus of governments and industry, shown in the dotpoints quoted above,
was fair and efficient administrative procedures - the target environmental
outcome, implicitly, being already given by political decision.
3.41 Both groups would no doubt accept the value of all these goals,
in principle, but of course in practice the goals may conflict. For example,
decisions must be made on when a development proposal is likely to have
a significant environmental impact and, therefore, require a more rigorous
form of environmental assessment. Indeed, disputes often arise over the
decision about whether a development proposal is environmentally 'significant'
enough to trigger environmental impact assessment laws.
3.42 It is possible to systematise such decisions to a degree. For example,
the subjective term `significant impact' (the key concept in environment
protection laws) can be replaced or supplemented by objective criteria
(such as `developments costing more than $X million' or all developments
of certain types or a list of criteria used to identify significance)
3.43 Disputes also often arise concerning how decisions about project
proposals should be made when information about environmental impacts
does not exist or is uncertain. Those opposed to the development may call
for the decision to be put off until more research is done, while the
project proponents claim that information requirements are too onerous.
3.44 The Committee notes the importance of the precautionary principle
in such a situation as was highlighted by many submissions. The principle,
embodied in the IGEA and the National Strategy for Ecologically Sustainable
Development (as well as a number of international instruments to which
Australia is a party), provides guidance in such a situation and may dictate
the project not proceed in light of the uncertainty. [23]
3.45 How much information is necessary can be informed by the professional
consensus of the relevant experts. But the Committee suggests that by
and large these decisions are and will remain essentially subjective and
political, depending on the community values of the day concerning the
right balance between environmental protection and other goals, where
they conflict.
Defining `national significance'
3.46 A large number of submissions urged a greater Commonwealth involvement
in `matters of national environmental significance'. [24]
Many suggested particular matters that they thought fall into this category.
Few made any suggestions as to how, in principle, the category should
be delimited.
3.47 The NSW Minerals Council warned that:
…All previous attempts at such a definition have resulted either
in great complexity and ambiguity, or in the production of a de facto
land zoning system… In our view, it is most unlikely that a definition
of `national environmental significance' can be devised which will meet
with the support of all sectors of the community. [25]
3.48 The 1992 Inter-Governmental Agreement on the Environment made no
attempt to list matters of national significance in the style that has
been done since then, but simply says that the `responsibilities and interests
of the Commonwealth in safeguarding and accommodating national environmental
matters' include:
- matters of foreign policy.
- cross-border problems, where the States concerned invite Commonwealth
involvement.
- facilitating co-operative development of national environmental standards
and guidelines. [26]
3.49 The 1997 COAG Heads of Agreement lists 30 items said to be
matters of `national environmental significance', but nowhere does it
try to define the term in principle. Similarly, while Commonwealth assessment
and approvals processes are dependent on the concept in the Environment
Protection and Biodiversity Conservation Bill 1998, the term does
not appear in the text of the Bill, but only in the heading for Part 3,
Division 1.
3.50 Scanning the 30 COAG matters of national environmental significance
suggests some of the unstated criteria for inclusion. Most prominent is
provision for the implementation of specific environmental treaties, which
are implicated in roughly half of the 30 matters. Other matters relate
to other Commonwealth powers under section 51 of the Constitution (for
example: 12: import and export of genetically modified organisms; 18:
environmental statistics).
3.51 In other cases the rationale for `national' significance is not
apparent, although the Committee notes that full implementation of the
Convention on Biological Diversity would provide Commonwealth power to
legislate for these item under the external affairs power.
3.52 Presumably the inclusion of these innominate matters as matters
of national environmental significant arises from some sense of the widespread
importance of the subject matter, or the desirability of a Commonwealth
role in national coordination (for example, item number 13: safety assessment
and registration of agricultural and veterinary chemicals; item number
26: control of feral animals and weeds identified in national strategies).
In this last category, what is in and what is out must be a matter of
political judgment. Conservation of certain heritage places (no. 3) is
said to be of national significance; standards of urban planning generally
are not. Standards of motor vehicle emissions are said to be of national
significance (no. 19); other point sources of pollution are not. And in
evidence to this inquiry it was clear that different parties had very
different ideas about what is of national, regional or local significance.
3.53 Similarly, which of these matters of admittedly national significance
should trigger Commonwealth environmental assessment processes is a matter
of opinion, not of logic. COAG put the first seven of its 30 matters of
national significance in this category, and the Environment Protection
and Biodiversity Conservation Bill 1998 picks up six of these. Implementation
of treaties is clearly the rationale for most of these; but the same rationale
could apply equally to many of the remaining 23 matters.
3.54 The Committee notes, for example, significant impact on world heritage
values or Ramsar listed wetlands triggers Commonwealth assessment; but
impacts on greenhouse emissions or ozone depletion do not; yet all these
matters stand in the same relation to international treaties which Australia
has become a party to. [27] Many submissions
to this inquiry felt that the Commonwealth should take on a decision-making
responsibility for more of the 30 matters.
3.55 The Committee notes also a common ambiguity in submissions over
whether `national significance' is meant to refer to the high importance
of a matter or the widespread occurrence of it. For example,
is the preservation of an endangered species endemic to one hillside a
matter of national significance, on the ground that preservation of endangered
species generally is an important matter? Or is it a matter of
merely State significance, on the grounds that the species is limited
to one State and State systems are `appropriate' to manage the problem?
Is coastal development a matter of national significance, since it raises
similar problems all around the country? Or is it a matter of State or
local significance, on the grounds that its problems can be handled locally?
And if coastal development is a matter of national significance, does
this suggest that the Commonwealth should be involved in approving every
coastal subdivision?
3.56 On matters like these, opinions on national/state/regional/local
significance which are supposed to inform decisions about the appropriate
level of management, are easily influenced by prior opinions (often
unstated) about what the appropriate level of management is. For example,
we return to the question of why COAG proposes that matters affecting
World Heritage or Ramsar wetland should trigger Commonwealth environmental
assessment, but matters affecting greenhouse emissions or ozone depletion
(equally the subject of treaty obligations) should not. Presumably the
real distinction is that world heritage and Ramsar wetland management
issues are reasonably confined to certain particular places; whereas,
if greenhouse or ozone matters were a trigger it would imply Commonwealth
involvement in a vast range of economic activities that have always been
regulated by the States. The unstated view is that the latter would not
be `appropriate'.
3.57 The Committee concludes that what has `national significance' (and
its complements, state, regional and local significance) is a matter not
of objective definition but of political judgment depending on the community
values of the day. It is true that `ecological systems know no state borders',
but this statement is not very helpful in suggesting, case by case, where
management responsibility should lie. Environmental protection and ecologically
sustainable development have many facets, which are promoted in various
ways at the several levels of government depending on community expectations
and practical considerations about the appropriate level of control.
3.58 `National significance' is a shorthand term for some of these matters,
implying a certain level of control; but the term itself does not show
what those matters should be. The Committee believes that the continued
use of the concept only continues that lack of certainty about the appropriate
role of the Commonwealth in environmental protection.
Recommendation 4
The use of the concept of "national environmental significance"
should be abandoned as a means of delineating the appropriate role of
the Commonwealth in the regulation of environmental matters.
Responsibility, delegation and control
3.59 Many submissions called for the Commonwealth to take more `responsibility'
for environment protection. However, the exercise of that responsibility
was the subject of debate. Many submissions envisaged that the Commonwealth
in discharging this responsibility would do by direct command and control,
or by a process of accreditation that ensured State compliance with national
minimum standards, or by making tied grants conditional on the States'
environmental performance.
3.60 Others referred to the principle of `subsidiarity'. For example,
the Queensland government, as noted above advocated that `…policy
development, administration and program delivery should lie with the level
of government best placed to deliver outcomes.' [28]
The Committee notes that the `accreditation' proposals of the IGAE and
the present environment bill take this further, by proposing to delegate
administration of certain things to the States even where the Commonwealth
asserts that it retains ultimate responsibility.
3.61 The Minerals Council of Australia regarded the `appropriate' level
of management as being that `closest to what is being managed and where
the expertise lies.' [29] The National Association
of Forest Industries argued that once formal accreditation of State procedures
has occurred, `…it would be entirely appropriate for the Commonwealth
to give full faith and credit to the results.' [30]
This is the scheme envisaged by the Inter-Governmental Agreement on the
Environment.
3.62 Conservation organisations, public interest groups and many individuals
on the other hand, were adamant that the Commonwealth should not `sign
away its powers.' They mostly approved an `appropriate' management role
for State and local governments, but - because they do not trust them
- urged that the Commonwealth should stand ready to intervene where necessary
to protect the environment. For example:
Accreditation of State practices ought not to be `once and for all'.
It ought to be subject to review that includes meaningful community input
and therefore depends on satisfactory performance by the accredited jurisdiction.
[31]
3.63 The States would naturally prefer the Commonwealth, having agreed
that certain matters are the province of the States, to vacate the field
and let the States be responsible for their own decisions.
From Queensland's perspective any increased direct Commonwealth involvement
in State and local decision processes is not acceptable. [32]
3.64 How should the governments decide which matters are `appropriate'
for which levels of government? The States stressed the need for consultation
and co-operation. [33] By contrast, the Australian
Conservation Foundation envisaged that this would be a decision of the
Commonwealth. In the context of advocating an environmental power in the
Constitution, the ACF argued:
The principle [of subsidiarity] would provide that where the Commonwealth
recognises that environmental objectives are best met at the national
level, it would have the power under Constitution to take appropriate
action… Where the Commonwealth recognises that environment objectives
are best met at the State or local government level, it would be within
the Commonwealth's power to delegate responsibility to these jurisdictions.
The delegation of Commonwealth power may occur on a conditional basis,
and may be retracted at the Commonwealth's discretion. [34]
[emphasis added]
3.65 The Environmental Defender's Office Ltd also agreed with the principle
of subsidiarity - providing there is, in effect, ultimate Commonwealth
control:
I certainly think states should not be excluded from entering the field,
I do believe, however, that states should be required to have as good
as, if not better than, environmental laws that the Commonwealth passes.
[35]
3.66 The Committee notes that there is, of course, a difference between
having a regular administrative role in certain types of decisions, and
having the power to `call in' a particular decision. Planning laws and
accreditation arrangements relate to both: they allocate certain types
of decision to certain parties on certain conditions; and incidentally
they aim to entrench the idea that others who may have the power to intervene
in particular cases should not do so.
3.67 The Committee stresses, that whatever agreements are made, the Commonwealth
still can intervene in certain matters of interest to the States, whether
by enacting Commonwealth laws or withdrawing accreditation previously
given (just as State governments can and do `call in' certain developments
which would otherwise be decided by local councils).
3.68 Accreditation agreements aim to ensure that that this is done as
rarely as possible because everybody supposedly working off the same page.
Debate over when the Commonwealth should intervene is essentially a debate
over the `appropriate' role of the various governments, having regard
to their traditional bailiwicks, considerations of efficiency, simplicity,
transparency, participation mechanisms, and which system gives the best
environmental outcomes - and in particular, what the relative weight of
these factors should be.
3.69 Tension between what we may call `delegation on a short leash' and
delegation with real independent authority was most obvious in comments
about the role of local government. While many submissions advocated a
greater role for local government, some, in almost the same breath, argued
that local councils tend to be parochial and ill-resourced for environmental
assessment, and the higher governments should stand ready to over-ride
them where it is `necessary'. [36] Of course,
judging when it is `necessary' may be a controversial matter.
3.70 In the Committee's view, however, where wider public interests conflict
with local autonomy, the balance that should be struck between them should
favour the wider interest.
Avoiding `unnecessary duplication'
3.71 A number of submissions urged the need to avoid unnecessary duplication
of environmental decision-making processes. [37]
For example, it is very common for a major development to need the approval
of several different authorities. For example, it might need approval
from the environment department on environmental grounds, from the traffic
authority on grounds of road safety, from the local council in relation
to water supply and sewerage, and so on. Providing each approving authority
is assessing the application for a different purpose, there is no duplication.
3.72 Whether the various authorities happen to be all at the same level
of government makes no difference. All this may create extra work for
the applicant, but that is part and parcel of doing business in a society
that has rules to protect the public interest. There may be a case for
establishing a single shopfront for the applicant's convenience; but that
is a matter of administrative detail: it does not alter the need for the
various forms of assessment. Nor does it support an argument for reducing
the level of assessment.
3.73 Furthermore, it may be that each of these authorities has a power
of veto, or that one makes an approval decision taking into account the
views of the others. Either way, there is no duplication, providing each
works to its own criteria. It could also be argued that where a higher
authority from time to time `calls in' a matter that would otherwise be
decided by a lower authority (as State governments commonly do to local
councils), this too is not `unnecessary duplication' but rather a purposeful
exercise of power which, presumably, is done for good reasons.
3.74 Arguably, `unnecessary duplication' mainly refers to the limited
case where two authorities are routinely considering the same matters
on the same criteria and the same information. In this case, if they make
different decisions the applicant might well feel confused.
3.75 For example, the Commonwealth's Environment Protection (Impact
of Proposals) Act 1974 creates a situation where often a State must
be satisfied about the environmental impacts of a development proposal
(since the development site is in the State), and the Commonwealth must
also be satisfied about it (since the development requires a Commonwealth
action or decision). Administrative arrangements can be made to avoid
duplication of information-gathering; but still there is necessarily duplication
of decision-making. This scheme can be characterised favourably as the
Commonwealth taking responsibility for the environmental effects of its
own actions, or unfavourably as the Commonwealth unnecessarily duplicating
State decisions. Or it can be called the Commonwealth supervising the
State within the limits of Commonwealth heads of power - and whether this
is good or bad is a matter of opinion depending on one's view of how much
the State ought to be supervised.
3.76 How much duplication is `unnecessary' is a matter of opinion. What
some call unnecessary duplication is to others simply the precautionary
approach in action. `Removing unnecessary duplication' as an administrative
goal should not be an excuse for winding back environmental assessment
by limiting the criteria to be considered or the information to be gathered.
What matters should be considered, and at what depth, is a separate matter
that needs to be debated on its merits.
National standards
3.77 Many submissions advocated a stronger Commonwealth role in setting
or facilitating national standards relating to environmental protection.
For example, the Australian Conservation Foundation (ACF), said:
The Federal Government should set high national standards for environmental
protection (based on the best from each States), with ways to ensure the
States meet the standards and targets for their implementation. [38]
3.78 The Humane Society International suggested that the Commonwealth's
role should include: `…setting `best practice' national environmental
standards which are the minimum base line from which states and territories
can build their own standards'. [39]
3.79 Some reasons for national standards might be to provide consistency
for industry, to improve administration of cross-border issues, and to
avoid competition on standards between States:
…each State has different standards for pollution or environmental
impact assessment. Developers tend to locate in the States with the lowest
standards. [40]
3.80 According to the Minerals Council of Australia, in the Commonwealth's
role facilitating greater consistency of approach key considerations are
`…improving efficiency of government processes, minimising distortions
due to different approaches in different jurisdictions, reducing overlaps
and duplication, reducing disputes between level of government, facilitating
resolution of issues that cross State/Territory borders, and obtaining
regionally appropriate but consistent outcomes…' [41]
3.81 However, submissions were often unclear as to whether the Commonwealth's
role of leadership in national co-ordination should be one of facilitating
co-operative activities, adjudicating disputes or, if necessary, dictating
the result. Environmental groups generally wished the Commonwealth to
retain the power of coercion; State governments stressed co-operation
and consensus. Even where consensus is the explicit aim, the question
remains of what is to be done if it is not achieved. Again, this is essentially
a political question - environmental groups giving higher priority to
the environmental outcome, government and industry giving higher priority
to arguments about sovereignty, autonomy and the right distribution of
powers. Ultimately, how disagreements are resolved depends on where the
power lies and whether there is the political will to use it.
Footnotes
[1] See Hutton D and Connors L, A History
of the Australian Environment Movement (1999), p 121; Doyle T &
Kellow A, Environmental Politics and Policy Maning in Australia
(1995), p 6, 146-47.
[2] Submission No. 261 (The Wilderness Society
(Tasmania) Inc), p. 1156
[3] Submission No. 339 (Mr Peter Oastler), p.
1700
[4] Transcript of Evidence, 24 April 1998, (Mr
Tager, North Queensland Conservation Council) p. 264
[5] Submission No. 29A (Royal Australian Planning
Institute, Queensland),
[6] See eg Submission No 253 (Prof. Jan McDonald),
p 1046.
[7] Bates G, Environmental Law in Australia,
4th edition 1995, p 98
[8] ICESD Working Group on the Review of Commonwealth-State
Roles and Responsibilities for the Environment Consultation Paper - December
1996.
[9] Submission No 257 (Environmental Defender's
Office Ltd), pp 1100-01.
[10] Submission No. 339 (Mr Peter Oastler),
p. 1700
[11] For example, Submission No. 345 (Australian
Conservation Foundation), p. 1740b. See also Anton D, et al, Nationalising
Environmental Protection in Australia: The International Dimensions
(1993) Environmental Law 763, 774.
[12] Submission No. 345 (Australian Conservation
Foundation), p. 1740b
[13] Submission No. 262 (Humane Society International
Inc.), attachment: National Environmental Leadership: opportunities
for the new Coalition government, 1996, p. 13
[14] Submission No. 347 (Government of Queensland),
p.1798
[15] Submission No. 347 (Government of Queensland),
p.1796
[16] Submission No. 350 (Government of New
South Wales), p. 1811
[17] Submission No. 217 (Minerals Council of
Australia), attachment p. 3
[18] Submission No. 217 (Minerals Council of
Australia), attachment p. 3
[19] See Environment Protection Authority,
Public Review of the Commonwealth Environment Impact Assessment Process
(Main Discussion Paper, Nov. 1994), pp 8-9
[20] Submission No. 333 (National Association
of Forest Industries Ltd), p. 1572
[21] Submission No. 361 (Department of Transport
and Regional Development), p. 6
[22] For example, see Transcript of Evidence
23 April 1998, p.143ff
[23] See Harding R & Fisher L, The Precautionary
Principle in Australia, in Interpreting the Precautionary Principle
(O'riordan & Cameron, eds, 1994), p 252.
[24] For example, Submissions Nos. 167, 280,
234, 345
[25] Submission No. 288 (NSW Minerals Council),
p. 1320
[26] InterGovernmental Agreement on the
Environment 1992, sections 2.2, 2.5
[27] World Heritage places: Convention for
the Protection of World Cultural and Natural Heritage, 1972; wetlands:
Convention on Wetlands of International Importance… (Ramsar Convention)
1971; greenhouse: United Nations Framework Convention on Climate Change,
1992; ozone: Vienna Convention for the Protection of the Ozone Layer
22 March 1985 & Montreal Protocol on Substances that Deplete
the Ozone Layer 16 September 1987
[28] Submission No. 347 (Government of Queensland),
p. 1796
[29] Submission No. 217 (Minerals Council of
Australia), attachment p. 6
[30] Submission No. 333 (National Association
of Forest Industries Ltd), p. 1574
[31] Submission No. 345 (Australian Conservation
Foundation), p. 177
[32] Submission No. 347 (Government of Queensland),
p. 1796
[33] For example, Submission No. 347 (Government
of Queensland), p. 1795; Submission No. 357 (Government of Western Australia)
[34] Submission No. 345 (Australian Conservation
Foundation), p. 1780j
[35] Transcript of Evidence (Mr D Anton, Environmental
Defender's Office Ltd), 18 December 1997, p.54
[36] Submission No. 42, Transcript of evidence,
27 April 1998, p. 279
[37] For example, submissions Nos 176, 288
[38] Submission No. 345 (Australian Conservation
Foundation), p. 1740b
[39] Submission No. 262 (Humane Society International
Inc.), attachment: National Environmental Leadership: opportunities
for the new Coalition government, 1996, p. 13
[40] Submission No. 345 (Australian Conservation
Foundation), p. 1740b
[41] Submission No. 217 (Minerals Council of
Australia), attachment p. 3
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