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COMMONWEALTH ENVIRONMENT POWERS AND AUSTRALIAN FEDERALISM


Senate Environment, Communications, Information Technology and the Arts Committees

Commonwealth Environment Powers
Table of Contents

CHAPTER 6

COMMONWEALTH ENVIRONMENT POWERS AND AUSTRALIAN FEDERALISM

Introduction

6.1 In a federated nation like Australia there will often be some tension between the different levels of government as to the most appropriate distribution of roles and responsibilities. In areas such as environmental management, where change is constant both because new scientific evidence is becoming available and public opinion is demanding that government and industry change the way things have been done for many decades, those tensions become more apparent and are often difficult to resolve.

6.2 Given the lack of Constitutional clarity about the division of power over the regulation of the environment, Australian governments have grappled to clarify their respective roles and responsibilities in relation to environment matters. The period since the end of the 1960s has been marked by a protracted struggle between the Commonwealth and State and Territory Governments to establish mutually agreed institutional and policy-making mechanisms that would recognise and respect the asserted spheres of each level of government (including local government).

6.3 During the 1970s the two main federal-state cooperative environmental institutions were the Australian Environment Council (AEC) and the Council of Nature Conservation Ministers (CONCOM). The AEC was established in February 1972 to achieve effective consultation and coordination between the Commonwealth and State Governments on appropriate environment matters. Its role, however, was limited to consultations. It generally recognised the principle of State legislative competence over the environment. It was agreed at its first meeting that "the great majority of environmental problems come within the jurisdiction of States and accepted the "merits of decentralisation as a means of environment improvement". [1] CONCOM was established in 1973 and had wider aims of developing coordinated Commonwealth and State policies for nature conservation and the reservation and management of adequate land for the conservation of wildlife. [2]

6.4 In the early 1990s the Commonwealth government's renewed efforts towards co-operative federalism (`New Federalism') in environmental matters. After consultations between all the three levels of governments, the 1992 Inter-Governmental Agreement on the Environment (IGAE) was signed and another environment Ministerial Council was established, the National Environment Protection Council (NEPC).

Ecological issues across borders

6.5 The need for a strong Commonwealth role in environmental protection was strongly supported in the majority of submissions on the basis that ecological issues such as the protection of wildlife and management of river systems require national approaches and should not be contained within state and territory jurisdictional and geo-political boundaries. For example, TRAFFIC Oceania pointed out:

Most environmental matters have been traditionally considered within the realm of state power, and each state government has been responsible for harvest of endemic flora and fauna within its territory. The Commonwealth Government has only become involved when applications are made for export. This created difficulties when the distribution of species crosses state boundaries, which frequently occurs. [3]

6.6 Another example of cross-border environmental issue was given by the Conservation Council of South Australia pointing to the threat to the Coongie Lakes system in the north-east of South Australia resulting from a proposal by the Queensland Government for irrigation development of the Cooper Creek in that State. [4]

6.7 The Vice-President of the Conservation Council of South Australia called for the Commonwealth to adopt a broad policy focus which would assist in finding a solution to those types of issues:

The Commonwealth powers need to relate to broad policy areas. They should not be confined to specific issues, or specific items of legislation like national heritage, Ramsar or World Heritage, or the protection of whales or trade in protected species. One such broad policy area is the protection of biodiversity.

6.8 While recognising that the Discussion Paper on the Commonwealth Government's proposed legislation made reference to bioregional planning this witness together with some others deplored the “absence of detail on how the Commonwealth would be involved.” [5]

6.9 There are precedents for a regional approach to planning and environmental management. The Australian Alps Liaison Committee in its submission described the cooperative arrangements between the New South Wales, Victorian, ACT and Commonwealth governments that provide `consistent and cooperative' management of the Australian Alps National Parks. This arrangement:

Provides for a consistent approach to management of an area that is recognised as an ecologically biogeographic region, and an area of national significance that crosses political boundaries and administrative jurisdictions … The working arrangements provide for regular dialogue and joint conservation programmes. The Commonwealth plays a pivotal role in the arrangements in facilitating discussions and negotiations, providing assistance and expert advice, and contributing financial support. Commonwealth involvement stems from the National Parks and Wildlife Conservation Act 1975, under which the Director of National Parks and Wildlife can perform his functions in cooperation with other governing bodies. [6]

6.10 The Alps management is based on a Memorandum of Understanding which sets out the respective roles, responsibilities and obligation of each of the participating governments. The objective of the MOU is to `pursue cooperative management and develop complementary policies to protect the scenery, water catchments, plants, animals and cultural heritage of the Australian Alps as a whole ecosystem whilst providing opportunities for public enjoyment of that resource in a consistent management regime'. [7]

6.11 Another example of co-operative management is the Murray-Darling Basin Commission, an inter-governmental body appointed to manage the water and other environmental resources of the Murray-Darling Basin.

The Inter-governmental Agreement on the Environment (IGAE)

6.12 The Inter-governmental Agreement on the Environment (IGAE) is a statement of the relative roles and responsibilities of the three levels of government, Commonwealth, state and territory, and local and it provides a basis for negotiations between them so that a coordinated approach can be adopted on environmental issues.

6.13 The IGAE sets out at Section 3 some principles of environmental policy that should inform environmental practices and procedures. These principles include the need for parties to integrate environmental considerations into Government decision-making processes at all levels. The IGAE also outlines the following principles:

  1. precautionary principle - where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
  2. intergenerational equity - the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
  3. conservation of biological diversity and ecological integrity - conservation of biological diversity and ecological integrity should be a fundamental consideration;
  4. improved valuation, pricing and incentive mechanisms.

6.14 The IGAE (Section 2) sets out roles, responsibilities and interests for each level of government, including local government. Paragraph 2.2.1 describes the role of the Commonwealth:

The responsibilities and interests of the Commonwealth in safeguarding and accommodating national environmental matters include:

(i) Matters of foreign policy relating to the environment and, in particular, negotiating and entering into international agreements relating to the environment and ensuring that international obligations relating to the environment are met by Australia;

(ii) Ensuring that the policies or practices of a State do not result in significant external effects in relation to the environment of another State or the lands or territories of the Commonwealth or maritime areas within Australia's jurisdiction (subject to any existing Commonwealth legislative arrangements in relation to maritime areas); and

(iii) Facilitating the co-operative development of national environmental standards and guidelines as agreed in Schedules to this Agreement. [8]

Paragraph 2.2.3 clarifies the Commonwealth's role in regard to biological resources:

The Commonwealth has responsibility for the management (including operational policy) of living and non-living resources on land which the Commonwealth owns or which it occupies for its own use. [9]

6.15 The Committee notes that this delineation of responsibility is at more limited than the obligations assumed by the Commonwealth Government under the 1992 Convention on Biological Diversity.

6.16 The responsibilities and interests of the States/Territories are defined by Clause 2.3. The four areas of State/Territory responsibility are:

The development and implementation of policy in relation to environmental matters which have no significant effects on matters which are the responsibility of the Commonwealth or any other State;

The policy, legislative and administrative framework within which living and non-living resources are managed within the State;

The development of Australia's position in relation to any proposed international agreements (either bilateral or multilateral) of environmental significance which may impact on the discharge of their responsibilities; and

To participate in the development of national environmental policies and standards. [10]

The IGAE in practice

6.17 The IGAE represents an acknowledgment that the different levels of government have different but complementary roles to play in protecting the environment. The Agreement provides a `map' as to how the three levels of governments have decided to interact with each other in relation to environmental issues, but its existence does not by itself guarantee that governments have been acting in the spirit of the Agreement.

6.18 Indeed, the Committee notes that section 34 of the National Environment Protection Council Act 1994 expressly allows any party to withdraw from the IGAE at anytime without penalty.

6.19 In practice, progress towards a co-ordinated approach to environmental issues has been slow, but with the establishment of the National Environment Protection Council in 1994, national environment protection measures have been and are being developed (NEPMs).

6.20 The Committee notes, however, that there is nothing in law requires uniformity among the States and Territories in adopting implementing legislation for NEPMs. Indeed, the Commonwealth has explicitly recognised that it is permissible for State and Territory legislation codifying NEPMs to be inconsistent. [11] Moreover, the Commonwealth recognises that there is no legal obligation on a State or Territory to legislate to implement a nationally agreed NEPM. [12]

6.21 As a result it is not certain whether the aspirations of NEPC can be met. The Committee notes that NEPC claims the key purpose of NEPMs is to ensure "that the people of Australia enjoy the benefit of equivalent protection from air, water, and soil pollution and from noise, where ever they live". [13] Attaining this goal may be impossible because of the voluntary nature of the IGAE and NEPC arrangements.

6.22 Central to the operation of the IGAE was the development of a process of accreditation whereby either the Commonwealth and the States would, after an assessment of the relevant procedures, grant “full faith and credit” to the practices, procedures or processes of the other level of government:

2.5.1.2 Where it has approved or accredited practices, procedures or processes under 2.5.1.1 the Commonwealth will give full faith and credit to the results of such practices, procedures or processes when exercising Commonwealth responsibilities.

2.5.1.3 Where a State considers that its interests can be accommodated by approving or accrediting Commonwealth practices, procedures or processes, or an agreed modified form of those practices, procedures or processes, a State may enter into arrangements with the Commonwealth for that purpose.

2.5.1.4 Where a State has approved or accredited practices, procedures or processes under 2.5.1.3 that State will give full faith and credit to the results of such practices, procedures or processes when exercising State responsibilities. [14]

6.23 Where the IGAE uses the expression `give full faith and credit to the results of mutually approved or accredited systems, practices, procedures or processes', it means:

That the Commonwealth and the States acting in accordance with the laws in force in their jurisdictions, will accept and rely on the outcomes of that system or the practices, procedures or processes, as the case may be, as a basis for their decision making. [15]

6.24 The principle on which the Inter Governmental Agreement on the Environment operates is that of “subsidiarity” which became popular in federated States in the late eighties and which holds that decisions concerning various areas of policy (in this case the environment) are best taken at the level of government closest to the communities which are directly involved or affected by those decisions.

Criticisms of the IGAE

6.25 This interpretation of the principle of subsidiarity was challenged in a number of submissions to the inquiry, including by Professor Robert Fowler, an environmental law expert, who argued in his submission that it acted as a kind of check on the Commonwealth's role, and was `invoked by the States to support the idea that the role of the Commonwealth in environmental matters should not expand further, and indeed might contract'. [16]

6.26 The Australian Conservation Foundation (ACF) also criticised the IGAE, stating that `to take effective action on matters of national and international environmental significance, State Governments are constrained by their inherently parochial nature and, in many cases, their limited expertise. For these matters Commonwealth involvement is essential and appropriate'. [17]

6.27 The ACF argued that the IGAE represents a withdrawal by the Commonwealth Government of its responsibilities in environmental protection, and instead adopts State based standards and practices. In the ACF's view:

…rather than enhancing the Commonwealth's environmental powers, the IGAE represents a retreat by the Commonwealth from its responsibilities in this area. The Agreement is a manifestation of the inherent weakness of the Commonwealth's negotiating powers vis-a-vis the States on environmental issues … it effectively limits Commonwealth action, making it conditional upon the consent of the States, and `where appropriate', allows the Commonwealth to accredit State practices, procedures and processes to override the Commonwealth equivalents. [18]

6.28 Those critics of the IGAE (such the ACF and the NSW Environmental Defender's Office) also argued that the Agreement does not provide clarity for inter-governmental relations regarding environmental protection:

The Agreement fails to provide a clear set of circumstances where the Commonwealth will intervene when the `national interest' is threatened. It also fails to outline procedures for resolving disagreements between the Parties in the event that existing practices are unsatisfactory. [19]

The agreement fails to outline a procedure for resolving disagreements between the parties in the event that existing practices are unsatisfactory, other than to assert that the Commonwealth and the states will endeavour to agree. When an agreement cannot be reached, the decision making power is ultimately left in the hand of individual states and, clearly, inappropriate outcomes may result in many circumstances. [20]

6.29 The Queensland Conservation Council (QCC) went a step further and called “for the IGAE approach to be abandoned and for the Commonwealth to grasp environmental leadership'. Among the suggested approaches to better environmental protection offered by the QCC are:

6.30 Others concerned about the devolution of power to the States through an accreditation process pointed to the Commonwealth's responsibility for abiding by international treaties and conventions. The Centre for Natural Resources Law and Policy at the University of Wollongong argued that currently Australia has a minimalist approach to its obligations under international environmental treaties:

We feel we are wasting the potential of the international nature conservation law that Australia is a party to by a minimalist interpretation of the obligations of the conventions and that Australia is failing to respond to the evolution of the world heritage and Ramsar conventions, as well as their ongoing process of alignment with the Convention on Biological Diversity. We need to be moving away from an icon approach to implementing those conventions and towards a broader catchment perspective. That has been reflected in the development of operational guidelines under the World Heritage Convention and the development of the wise-use concept under Ramsar. [22]

6.31 This organisation called for the Commonwealth Government to play a `greater role in implementing greater uniformity across jurisdictions'. [23]

Support for the IGAE approach

6.32 Despite the problems with the IGAE, there was support for a rationalisation of the different levels of governments' involvement in environmental issues. Some saw the accreditation process as the best means to achieve such a goal. The Royal Australian Planning Institute (Queensland) argued that the Commonwealth should `clearly define the roles of the various parties in order to minimise any unnecessary overlap with the states and territories'. This organisation suggested that the Commonwealth `concentrate resources (rather than just controls) into areas of national significance eg. Murray-Darling Basin, Great Barrier Reef, Greenhouse Gas Emissions, land degradation, etc'. It stated that:

In withdrawing from some areas, the Commonwealth must necessarily ensure that national interests are properly safeguarded. We recommend that the Commonwealth 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 in those cases. Matters of national interest should therefore be clearly defined by this Inquiry or other parallel reviews, and embodied in the Inter-Governmental Agreement on the Environment. [24]

6.33 Although critical of the Commonwealth for “withdrawing from its responsibilities” under the IGAE, the Australian Conservation Foundation (ACF) described the IGAE as a document that `aims to reduce the duplication between different levels of government and increase efficiency of decision-making in the area of environmental management protection'. According to the ACF, `a major cause of duplication is the lack of a clear division of powers and responsibilities for environmental matters'. [25]

6.34 Other witnesses supported the broad objectives of the Agreement. The National Trust of South Australia regarded the IGAE in general as `a useful and uniform framework for action, to avoid duplication and minimize conflict', but cautioned that `it should not become a means by which the Commonwealth dilutes its powers or reneges on its obligations for environmental protection'. [26]

6.35 The Peak Environmental Enterprises and Conservation Centre of Australia thought that the IGAE was a `valuable type of complementary document for developing cooperation processes', but said it can `never be an effective substitute for a foundation agreement approved by the Australian people'. This organisation was also among several organisations and individuals who argued that the Constitution should be amended to clarify and confirm the division of powers between the Commonwealth, state and territory governments over environmental protection. [27]

6.36 The Country Women's Association of Western Australia thought that the states are best placed to protect the environment, and that they should not allow the Commonwealth Government to intervene. This group argued against a Commonwealth role, stating that `a government which is isolated by thousands of kilometres is not well placed to monitor and protect a fragile state'. They were firm in their view that state governments were `closer to the people'. [28]

6.37 Mr B. Donald, a commissioner of the Australian Heritage Commission, reported that the Commission considers the IGAE has been a useful basis for coordination of environment and heritage assessment:

At a meeting last week the Heritage Commission signed off on accreditation of both the ACT and the Victorian processes for heritage listing and assessment. So we have achieved the first step in the future directions of the Australian Heritage Commission, which is based on a cooperative model acknowledging the inevitability and continuing federal structure within Australia. … The Commonwealth and, I believe, the Australian Heritage Commission have been very successful in this particular field in bringing those accreditation standards and involving the agreement by the state agencies to the AHC Act criteria for assessment for heritage values, including natural heritage values… This has been a long process but it can be done. [29]

6.38 Some submissions and witnesses were prepared to endorse the accreditation approach only if the States were to “upgrade” their current environmental legislation:

I do believe, however, that states should be required to have as good as, if not better than, environmental laws that the Commonwealth passes. I think it is perfectly acceptable for states to enter the field if they are willing to provide laws that provide equal or better protection for environmental values, and I think the principle of subsidiary goes some way into helping us achieve that sort of compromise result in not having the federal parliament totally responsible for environmental laws. [30]

The IGAE and Environmental Impact Assessment

6.39 The IGAE includes in its Schedule 3 a statement on environmental impact assessment. This sets out five statements about impact assessment to which the parties agree. These include matters such as `The aim of parties to improve consistency across all levels of government', to `avoid duplication of process where more than one level of government is involved', and to `avoid delays in the process'. The document also states that environment impact assessment should include assessment of environmental, cultural, economic, social and health factors.

6.40 Further, it acknowledges that environmental impact assessments must be public processes in which interested members of the community can participate:

There will be full public disclosure of all information related to a proposal and its environmental impacts, except where there are legitimate reasons for confidentiality including national security interests;

Opportunities will be provided for appropriate and adequate public consultation on environmental aspects of proposals before the assessment process is complete. [31]

6.41 The issue of environmental impact assessment is considered in more detail in Chapter 5 of this report.

Developments since the IGAE

6.42 Section 5 of the IGAE included a commitment to review the operation of the Agreement every three years. In 1995 the Intergovernmental Committee on Ecologically Sustainable Development (ICESD) undertook the first review of the IGAE. At that stage, no progress had been made towards accreditation and some submissions to this inquiry were critical of that fact. [32]

6.43 Before any opportunity for action in response to the review, there was a change of Government in 1996 and a senior level Working Group of the ICESD commenced a new process to carry out a Review of Commonwealth/State Roles and Responsibilities for the Environment. A Consultation Paper on the issues raised in that review was released in December 1996. [33]

6.44 The Council of Australian Governments (COAG) then proceeded with its review of environmental issues and in early November 1997 it signalled its intention to endorse Heads of Agreement that would `result in fundamental reform of Commonwealth/State roles and responsibilities for the environment'. These reforms were directed towards an outcome that would `deliver more effective measures to protect the environment [and] remove duplication and result in a more efficient development approvals process'. [34]

6.45 COAG had agreed on five areas of reform of intergovernmental relations on the environment:

Matters of environmental significance;

Environmental assessment and approval processes;

Listing, protection and management of heritage places;

Compliance with State environmental and planning legislation; and

Better delivery of national environmental programmes. [35]

6.46 In general, the objective of the Heads of Agreement was to remove uncertainty regarding the roles of the Commonwealth and State Governments in environmental protection by delimiting the Commonwealth's role in relation to a defined set of matters of national significance. These matters would provide the `triggers' for Commonwealth involvement. The Agreement advocates a greater reliance on State processes `as the preferred means of assessing proposals'. [36]

6.47 This approach was strongly criticised in many submissions to the inquiry, as most environmental groups believed that the Commonwealth was further abdicating its responsibilities in favour of the States and that this risked worse environmental outcomes.

6.48 In its submission to this Committee's current inquiry the NSW Environmental Defender's Office was particularly critical of the COAG review for failing to consult with community groups as part of the review process:

The concurrent review of Commonwealth environment powers by the Council of Australian Governments (COAG) and its non-transparent process, coming at a time of a diminishing positive role by Australia in international environmental affairs and a winding back of Commonwealth responsibilities on the environment (eg the exercise of world heritage powers) is seen as potentially threatening by environment organisations. [37]

6.49 The COAG Heads of Agreement was followed by a Consultation Paper, Reform of Commonwealth Environment Legislation, issued in March 1998 by Senator Robert Hill, Minister for the Environment. The Consultation Paper preceded the introduction of the government's Environmental Protection and Biodiversity Conservation Bill 1998 in the Senate in July 1998. The bill replaces several existing pieces of Commonwealth environmental legislation, including the EP(IP) Act. According to the Consultation Paper, the measures aimed at improving the operation of that Act are:

Proponents will be able to initiate the triggering process in the Act.

Decisions on Commonwealth involvement will be made early in the process and will be binding.

A transparent legislative mechanism for accreditation of State assessment processes and, in some cases, State decisions will be adopted. The goal will be to maximise reliance on State processes which meet appropriate standards.

The decision of the Environment Minister whether to grant consent will be made after full consultation with other relevant Ministers. In practice, if Ministers do not reach agreement then the advice of Cabinet or the Prime Minister will be sought. The decision will be made on the basis of an ecologically sustainable development approach which includes consideration of economic and social factors. [38]

6.50 The Senate Environment, Communications, Information Technology and the Arts Legislation Committee tabled its report into the Bill on 27 April 1999.

6.51 The Committee believes that there are major problems, perhaps insurmountable, that need to be addressed in order the make the IGAE and the NEPC effective. The continued potential for inconsistency and, more importantly, the voluntary nature of these arrangements leave the protection of the Australian environment greatly exposed to short-term political and economic considerations. The Committee considers that this has the potential to undermine Australia's long-term commitments to ecologically sustainable development.

6.52 The Committee believes that the interests of effectiveness, uniformity, certainty, and the avoidance of duplication -- all of which are important to environmentalists, business, and the community at large -- dictate that a true national approach to environmental protection be adopted.

6.53 The Committee is of the view that Commonwealth legislation establishing comprehensive and binding national standards for the protection of the Australian environment, together with accreditation of State practices, procedures and processes that meet those standards, is the most effective and efficient approach to enviornmental problems facing Australia. Such an approach would allow for the States to maintain their own regulatory and administrative arrangements, but within a general framework set by the Commonwealth.

6.54 The Committee considers that the suite of Constitutional powers open to the Commonwealth to enact Commonwealth legislation outlined in Chapter 2 would provide the authority for such sweeping legislation, especially the external affairs power in relation to the Convention on Biological Diversity.

Recommendation 26

The Commonwealth should enact comprehensive and binding national standards for the protection of the Australian environment. In preparation for this undertaking the independent statutory Commission of Environmental and Constitutional law experts should be consulted.

6.55 The Committee believes that national standards should be set in consultation with the States and Territories, community groups and industry. The Committee sees value in retaining the NEPC for such consultations, but expanding its membership to include representatives of the wider community and industry.

Recommendation 27

In determining the substance of comprehensive and binding national standards for the protection of the Australian environment, the Commonwealth should engage in extended consultations with State and Territory Governments, the wider community and industry.

6.56 Where State and Territory practices, procedures and processes are at least as protective of the environment as national standards, State and Territory arrangements should be employed in the implementation of those standards. Such an approach would recognise the proper role of leadership, support, and direction of the Commonwealth, without simply taking over the field from the States.

Recommendation 28

The Commonwealth should take advantage of existing State and Territory administrative arrangements and expertise with respect to the environment (including practices, procedures and processes) by establishing a method for accreditation of these existing arrangements in cases where they provide at least as much protection for the environment as the established national standards.

An express Constitutional environmental power

6.57 The Committee notes that many submissions called for an amendment of the Constitution to include a Commonwealth power to legislate directly for the environment. [39] For example, some felt that a power enshrined in the Constitution was necessary to provide better protection for World Heritage areas:

The Federal Government must maintain its obligations and remain responsible for the integrity of World Heritage both current and future. Only by having within the Constitution the role of the Federal Government can a single set of environment rules and powers be established and then enforced. It should be the Federal Government's Mandate to protect our environment and not left to various choices. [40]

6.58 For some the value of such an amendment would be perceived as symbolic, as well as substantively clarifying that the Commonwealth does indeed have a role in environmental management and regulation. For example:

This head of power would give overdue recognition to the Commonwealth's role in fostering and ensuring environmental protection and its right to legislate and intervene in areas of resource management, expenditure and other activity by the States to ensure environmentally beneficial outcomes. [41]

6.59 The Committee notes that the 1987 Constitutional Commission considered the matter of a possible environmental power in its 1988 report. The Commission recommended against a Commonwealth environmental power, mainly because of the difficulty of restricting its scope acceptably so as to exclude matters which (it assumed) should not be subject to Commonwealth power:

[With a general environmental power] it would also be possible for the Commonwealth to legislate in a way which could directly affect, for example, road construction and maintenance, mining and related activity, water and air pollution, town planning, noise pollution, wood chipping and all aspects of forest management, soil conservation and land management, and river use - matters which traditionally have been State concerns.

6.60 The Commission was unimpressed by proposals to limit the power by phrases such as `of national significance' or `affecting the national economy', since these would be too `vague and subjective' to be useful legal terms. [42]

6.61 Over ten years have passed since the recommendations of the Constitutional Commission. While no Constitutional alteration has been made to confer express environment power on the Commonwealth, the concept of 'national environmental matter' and 'national environmental significance' has, nevertheless, been adopted in an attempt to limit the Commonwealth's involvement in the field of environmental protection in the face of growing recognition of its otherwise extensive Constitutional powers. [43]

6.62 A number of submissions observed that the attempts at such a limitation contained in the 1992 Intergovernmental Agreement on the Environment (IGAE) and the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment (HOA) were not legally binding. [44] These arrangements are dependent on voluntary cooperation and there is no means of enforcement against, or accountability of, parties acting contrary to the arrangements. Indeed, the Committee notes that Section 34 of the National Environment Protection Council Act 1994 expressly allows any party to withdraw from the IGAE at any time without penalty.

6.63 The Committee is in accord with the Constitutional Commission's view that the formula of 'national environmental significance' is too subjective and lacking in precision to be useful or capable of enforcement as a legal formula to limit Commonwealth power. The Committee strongly believes that the Commonwealth's existing power (or potential power under a Constitutional alteration) should not be so limited.

Recommendation 29

The Commonwealth Government should ensure that it retains the right to act, including through legislation, on any environmental issue over which it has power, notwithstanding anything contained in the 1992 Intergovernmental Agreement on the Environment or the 1998 Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment.

6.64 The Committee disagrees, however, with the Constitutional Commission's rationale for its general recommendation against an express Constitutional Commonwealth environment power. It is appropriate for the Commonwealth Parliament to have a general express Constitutional environment power, instead of having to rely on the current expansive, but formally incomplete method of Commonwealth involvement in environmental matters. Many modern Constitutions from republics around the world contain such provisions. [45]

6.65 The Committee notes that a Constitutional Convention has also been held since the Constitutional Commission issued its recommendations in 1988. Indeed, the issue of an express environment power was canvassed in Working Group I at the Constitutional Convention that took place from 2 - 13 February 1998. [46] At the conclusion of the Convention delegates resolved that:

If a republican system of government should be introduced by referendum, at a date being not less than three years or more than five years thereafter the Commonwealth Government should convene a further Constitutional Convention. …

The agenda of such Convention would be to: Address any other matter related to the operation of our system of government under republican arrangements, including: the role of the three tiers of government; the rights and responsibilities of citizenship; whether the Commonwealth should have an environment power; the system of governance and proportional representation; whether the mechanism for constitutional change should be altered; constitutional aspects of indigenous reconciliation; equal representation of women and men in parliament; and ways to better involve people in the political process. [47]

6.66 The Committee also notes that Working Groups H(i) and H(iv) of the 1998 Constitutional Convention recommended that environmental values be recognised in the Preamble to the Constitution. [48] At the conclusion of the Convention delegates resolved that the Preamble should contain an "affirmation of respect for our unique land and the environment". [49] Not only is this affirmation absent from the Government's Constitution Alteration (Preamble) 1999 Exposure Draft, but even if it did contain such an affirmation, clause 125A of the Exposure Draft would likely deprive it of all legal meaning. [50]

6.67 The Australian Conservation Foundation (ACF) highlighted that any proposed alteration of the Constitution requires principled language to empower the Commonwealth Government to pass laws with respect to the environment. The ACF noted that a simple alteration could be made to section 51 to add an additional clause "with respect to the environment" under its existing chapeau. [51]

6.68 The Committee notes that a number of submissions emphasised salutary effects that an express Commonwealth environment power would have on current arrangements. The Queensland Conservation Council highlighted that a clear and unambiguous environment power would allow the Commonwealth to assume a strong leadership role in cases of poor State and Territory environmental performance. [52] The Environmental Defender's Office stressed that a clear environment power would remove the current 'imagined' Constitutional uncertainty and its attendant problems in the exercise of Commonwealth power. [53] An express environment power would allow the Commonwealth to establish national best practice environmental standards. [54]

6.69 The Committee considers that an express power would allow the Commonwealth to provide a "level regulatory playing field" for business and industry and at the same time ensure that every Australian receives minimum, equal environmental protection under the law.

Recommendation 30

The Government should propose an amendment to section 51 of the Constitution to provide an express head of Commonwealth Parliamentary power to legislate with respect to the environment if and when a republican system of government is introduced by referendum and subsequent Constitutional Convention is convened.

 

Footnotes

[1] Howson, House of Representatives, Hansard, 26 April 1972, pp 2057-58.

[2] Department of Environment and Conservation, Report for Period December 1972 to June 1974 (1974 - Parliamentary Paper No 298), p 64.

[3] Submission No. 12 (TRAFFIC Oceania), p. 88

[4] Transcript of Evidence (Dr Henry Close, Conservation Council of South Australia), 15 July 1998, p. 420

[5] Transcript of Evidence (Dr Henry Close, Conservation Council of South Australia), 15 July 1998, p. 430

[6] Submission No. 20 (Australian Alps Liaison Committee), p. 162

[7] Submission No. 20 (Australian Alps Liaison Committee), Attachment

[8] Inter-Governmental Agreement on the Environment, May 1992, Paragraph 2.2.1

[9] Inter-Governmental Agreement on the Environment, May 1992, Paragraph 2.2.3

[10] Inter-Governmental Agreement on the Environment, May 1992, Paragraphs 2.3.1 to 2.3.4

[11] Parliament of the Commonwealth of Australia, Senate, National Environment Protection Measures (Implementation) Bill 1997, Explanatory Memorandum (Circulated by Authority of the Minister for the Environment, Senator the Hon Robert Hill), pp. 3-4.

[12] See National Environment Protection Measures (Implementation) Act 1998, s 21(1)(b)(i) & (ii).

[13] NEPC, Proposed National Environment Protection Measures, General Information, p. 1.

[14] Inter-governmental Agreement on the Environment, May 1992, Paragraphs 2.5.1.2 to 2.5.1.4

[15] Inter-governmental Agreement on the Environment, May 1992, Clause 1.5

[16] Submission No. 3 (Associate Professor Robert J. Fowler), p. 47

[17] Submission No. 345 (Australian Conservation Foundation), p. 1743

[18] Submission No. 345b (Australian Conservation Foundation), p. 1780i

[19] Submission No. 345b (Australian Conservation Foundation), p. 1780i

[20] Transcript of Evidence (Mr Donald Anton, Environmental Defender's Office, Sydney), 18 December 1997, p. 47

[21] Submission No. 157 (Queensland Conservation Council), p. 604

[22] Transcript of Evidence (Ms Linda Tucker), 18 December 1997, p. 43

[23] Transcript of Evidence (Ms Linda Tucker), 18 December 1997, p. 43

[24] Submission No. 29A (Royal Australian Planning Institute, Queensland), p. 219

[25] Submission No. 345 (Australian Conservation Foundation), p. 1777

[26] Submission No. 296 (National Trust of South Australia), p. 1362

[27] Submission No. 88 (Peak Environmental Enterprises and Conservation Centre of Australia), p. 389

[28] Submission No. 6 (Country Women's Association of WA Inc.), p. 34

[29] Transcript of Evidence (Mr Bruce Donald), 18 December 1997, p. 56

[30] Transcript of Evidence (Mr Donald Anton, Environmental Defender's Office Ltd, Sydney), 18 December 1997, p. 54

[31] Inter-Governmental Agreement on the Environment, May 1992, Schedule 3, pp. 21-23

[32] Submission No. 3 (Associate Professor Robert J. Fowler), p. 50

[33] ICESD Working Group on the Review of Commonwealth-State Roles and Responsibilities for the Environment Consultation Paper - December 1996

[34] Council of Australian Governments Meeting Communique, 7 November 1997, Canberra, p. 3

[35] Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment, p.2

[36] Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment, p.3

[37] Submission No. 257 (Environmental Defender's Office), p. 1101

[38] Reform of Commonwealth Environment Legislation, Consultation Paper, 1998, pp. 9-10

[39] See Submissions Nos 17, 94, 177, 263, 345, 345b, 316, 329, 340, 293, 312, 222, 229, 239, 248, 250 and 352

[40] Submission No. 54 (Mr D. MacDonald), p. 295

[41] Submission No. 263 (Environment Victoria) p.20

[42] Final Report of the Constitutional Commission, 1988, p. 757ff

[43] See the discussion in Chapter 4 below in connection with the Intergovernmental Agreement on the Environment (May 1992) and the 1998 Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment.

[44] Submission No 333 (National Association of Forest Industries Ltd), p 1604.

[45] Submission No 329 (Lane Cove Bushland & Conservation Society Inc), p 1551. See also the Constitutions of: Republic of Albania (Art. 36), Republic of Austria (Art. 10), Republic of Azerbaijan (Art. 138), Federal Islamic Republic of the Comoros (Art. 45), Republic of El Salvador (Art. 117), Republic of Gabon (Art. 47), Georgia (Art. 3), Federal Republic of Germany (Art. 75), Democratic Republic of Madagascar (Art. 82), Islamic Republic of Mauritania (Art. 57), United Mexican States (Art. 27), Mongolian People's Republic (Art. 38), Republic of Niger (Art. 81), Republic of Paraguay (Art. 8), Polish Republic (Art. 5), Russian Federation (Art. 71), Republic of South Africa (Section 44), Swiss Confederation (Art. 24), Republic of Turkmenistan (Art. 78), Republic of Ukraine (Art. 85), Republic of Venezuela (Art. 136), The Socialist Republic of Vietnam (Art. 112) in Constitutions of the Countries of the World : A Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies (edited by A.P. Blaustein and G.H. Flanz, Dobbs Ferry, N.Y.: Oceana Publications)[1971-present].

[46] See Constitutional Convention Hansard, Tuesday, 10 February 1998, p 565.

[47] Constitutional Convention 1998 Communique, The Final Report of the Convention, Chapter 7.

[48] See Constitutional Convention Hansard, Friday, 6 February 1998, pp 421-22, 435-36.

[49] Constitutional Convention 1998 Communique, The Final Report of the Convention, Chapter 7.

[50] Clause 125A provides: "The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth".

[51] Submission 345b (Australian Conservation Foundation), p 1780k.

[52] Submission No 157 (Queensland Conservation Council), p 595-96. See also Submission No 263 (Environment Victoria), p 1183.

[53] Submission No 257 (Environmental Defender's Office Ltd), p. 1103.

[54] See Submission No 316 (ACF (Sydney Branch)), p 1494.

 

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