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Environment, Recreation, Communications and the Arts Legislation Committee - 28/08/98 - Environment Protection and Biodiversity Conservation Bill 1998

CHAIR —Welcome. The committee has before it submission No. 99, which it has authorised to be published. Are there any alterations or additions you would care to make at this stage?

Ms Bragg —We have prepared some additional material that focuses on Queensland examples of the points made in our submission and also made in the major submission by the Environmental Defender's Office of New South Wales, which we endorsed.

CHAIR —Do you wish to table that?

Ms Bragg —Yes, I table that document.

CHAIR —Thank you. We will have copies circulated to all members of the committee. Are there any other alterations you wish to make to the statement?

Ms Bragg —No, no further alterations.

CHAIR —Do you have a brief statement to make?

Ms Bragg —We have prepared these Queensland examples. If you would like, we could present those in a very abbreviated form.

CHAIR —That would help us, because the longer you take on that, the less time we have for questions.

Ms Bragg —In that case, because we have jointly prepared this submission, we will share the presentation.

CHAIR —Okay.

Mr Silva —I will begin by briefly summarising the contents of this further written submission. We make the opening comment that we believe that the bill reflects an unduly restricted view of the Commonwealth's role in environmental protection. We support that by reference to subsequent examples relating to matters of national environmental significance. We focus on two examples of matters of national environmental significance which we consider have been omitted from the list included in the bill. The first of those is vegetation clearance.

After a brief opening about vegetation clearance we give an example which looks at a very recent activity which has been occurring on a timber reserve in the Mount Amos area, just south of Cooktown, which is part of the national estate and which has been logged pursuant to an agreement by the former government. The new state government intervened and stopped

logging there. We give that as an example of an area with recognised national environmental values which has been subjected to harm as a result of logging activities. The next example is water for the environment.

Ms Bragg —With respect to water for the environment, we also think this is a matter of national environmental significance and should be added to the list.

CHAIR —What heads of power would the Commonwealth use for that?

Ms Bragg —Because the Commonwealth has extensive power with respect to the environment due to the various treaties that it has ratified and signed, that is the basis of our proposal.

CHAIR —Do you know if any of those cover this issue?

Ms Bragg —There are impacts on biodiversity and so forth of water for the environment, so I think there would be quite a range of treaties which could be used to justify that power.

CHAIR —I do not know the answer to that and I will seek some advice from people who are more experienced than I am, but I think there is some question over that. Please go on.

Ms Bragg —The two examples that are included in the written materials are the Cooper Creek proposal, which is a proposal for a major cotton development in the Cooper Creek area in Queensland, and the proposed Dawson Dam in Central Queensland, and the implications of these two examples for environmental flows.

Mr Silva —We look at the legislation which applies in Queensland. We make the comment that as the bill exempts these particular matters from the category of matters of national environmental significance and as it sets up the device of bilateral agreements, it is then important to assess whether there is sufficient statutory protection in relation to those matters existing in Queensland. We provide an account in relation to vegetation clearing which we believe indicates that there are not sufficient state controls covering vegetation clearance. We also then examine the Water Resources Act, which is the chief legislative instrument which is intended to control and protect environmental flows of water and water distribution in Queensland.

We go on to make a particular point in relation to the exemptions which are provided under the act. There is a special section, section 43, relating to the Great Barrier Reef Marine Park. We believe that that provision is particularly flawed because it seeks to exempt from the whole process that is created under the act of defining matters of national environmental significance actions which should be controlled and subjecting those controlled actions to an assessment and an approval process. Section 43 exempts anything which is done pursuant to a management plan or a permit or other authority issued by GBRMPA. The flaw that we say exists in relation to that is that the bill proposes to create a situation where GBRMPA will no longer have the power to trigger a full EIS or public environment report or the other types of assessment available under the bill.

CHAIR —On what do you base that?

Mr Silva —On section 43 which says, essentially, that it is an exemption. It is the same as regional forestry agreements. It says that, if an action would otherwise be covered by part 3 of the bill but you have an approval from the marine park authority, then the bill does not apply and you do not require an approval under part 9 of the bill. It seems implicit that the bill is saying that it is satisfied with GBRMPA's own processes for assessing actions impacting on the Barrier Reef marine park.

What we say is that the powers that GBRMPA has under its own legislation do not actually allow it to trigger a public environment report or an environmental impact statement of the same scope and magnitude as exists under the bill. We point out that GBRMPA has in the past exercised the equivalent power under the Environment Protection (Impact of Proposals) Act which this bill seeks to replace in relation to environmental impact assessment.

We move on to talk about other legislation in connection with the bilateral agreements mechanism. The thrust of that is to show that the Queensland legislative framework is not in a sufficiently good condition to allow the Commonwealth at this stage to enter into bilateral agreements approving state processes because of the inadequacies of state environmental impact assessment. We express concern that the bill has not actually set forth criteria for accreditation under that bilateral agreements process. It is contemplated but there are no actual criteria listed or guaranteed at this stage.

In terms of the EIA processes under Queensland law, we deal with and discuss the inadequacies of the State Development and Public Works Organization Act 1971, the Mineral Resources Act and the Integrated Planning Act. We then move on to give some case examples which indicate the flaws in those processes.

CHAIR —If I could just go back to the actions in the Great Barrier Reef Marine Park, I have been advised that the EIA does apply, but the approval would be given under the Great Barrier Reef Marine Park. If that were the case, and we demonstrated that to be the case, would that alleviate your concern?

Mr Silva —It would. We have concerns about the EIA process that the act itself creates because we do not believe that it is a good EIA process and we do not believe that it has the same scope as the currently existing EIA process, but it would certainly go a long way to addressing that concern if there were a mechanism under this bill for a proposal to be subject to that process.

CHAIR —The committee will look at that and respond formally to what you have said so that you can see whether there is an alternative argument to that point of view that the EIA process can be initiated under this bill but the approval comes from the park authority. That is leaving aside whether the process is adequate or not. We will respond to that.

Mr Silva —All right.

CHAIR —I am sorry to interrupt you there, but I needed to correct something as we were going along.

Mr Silva —I could perhaps add briefly that I can see how that could occur under section 43 by the marine park authority simply withholding its approval or permission and triggering the process before a permission is provided so that that precondition under section 43 does not actually apply. But the way that bill is worded seems to be an artificial way of triggering the process, and in the way the bill is structured it seems to be intended that GBRMPA approvals be exempted from the processes of the bill.

We give some case examples of flaws in the environmental impact assessment process under Queensland legislation: the Dawson Dam proposal, the Brisbane city valley bypass and a proposed marina accommodation complex at Dungeness. We then make some other short points about the bilateral process. We point out that in Queensland there has been a situation in the past where ordinary environmental impact processes under Queensland law have been avoided by special acts of parliament. There should be a safeguard in the bill which ensures that a bilateral agreement would not permit such a form of approval to be acceptable under

the bill or the bilateral agreement. We give the example of the Mount Isa Mines Limited Agreement Act, which allows MIM to not comply with the environment protection policy on air emission.

Ms Bragg —That broadly summarises the additional material we hoped to put to you. I emphasise that we are concerned about the bilateral agreements and the possibility of the accreditation of the Queensland environmental impact assessment process, because of its many flaws. I will mention two. The first is that the State Development and Public Works Organization Act is for the big state level projects. It does not require, even for projects with major environmental effects, an environmental impact statement to be carried out. There are mere administrative procedures pertaining to that. The Dawson Dam is an example of the faults in that system. A decision was made by the previous state government to proceed with the dam when the impact assessment statement had not addressed downstream impacts and a water allocation management plan, which was to include those impacts, had not been completed. So there are flaws in the processes.

The other piece of legislation we have dealt with in our written material is the Integrated Planning Act, a new piece of legislation pertaining to town planning and development assessment. It covers matters of local and regional significance but would still touch on matters of interest to the federal government. Under the Integrated Planning Act developers have the right to refuse to supply information requested by state agencies, including the environment departments, without giving a reason.

Senator MARGETTS —In relation to heads of power, you mentioned treaties involved with water, vegetation clearance and endangered species. We know that the corporations power can be used to control the behaviour of corporations and that the Commonwealth can use export powers to require licences and so on. A lot of the time they choose not to do that. What kinds of constitutional changes might be necessary to ensure that we do not have this constant argy[hyphen]bargy and shoving of environmental responsibility from one level of government to another?

Mr Silva —As Jo indicated, we believe that the Commonwealth has certain constitutional heads of power which are appropriate and which legitimately authorise the Commonwealth to pass environmental laws. In terms of international treaties, we have mentioned the conservation of biodiversity. There is threatened species. There are also greenhouse agreements which have a direct correlation with vegetation clearance. If it is felt that the existing heads of power under the constitution are insufficient, then the only real alternative is a referendum.

Senator MARGETTS —One of the things I am referring to is that even the states do not have environmental responsibility built into their constitutions. They are drawing a long bow, if you like, to suggest that they have a monopoly on the environment. Land management is not necessarily environmental protection. What is your opinion about having ecological sustainability in the constitution so that all levels of government have to include ecological sustainability in their method of operation? Do you think that would be workable?

Mr Silva —What we would say—and I think most environmentally focused organisations would agree with this—is that there needs to be a single national uniform approach to the protection of the environment. That can only occur with national leadership through the national government. The problem that we currently face is that there is an incredible disparity in the measures of environmental protection which are afforded by the different state jurisdictions. If it were possible to achieve a bill of rights which entrenched the objective of ecologically sustainable development within the federal constitution and allowed the Commonwealth to freely legislate in whatever respects were necessary to secure that objective,

then that would clearly be highly beneficial for the environment and we would definitely support that. There clearly is a consensus through the national strategy on ecologically sustainable development and the intergovernmental agreement on the environment that ESD is the way forward for every jurisdiction.

Senator MARGETTS —If it were the right of citizenship in the constitution, it would be a requirement for all levels of government to integrate it into their operations, I guess.

Mr Silva —Yes, if it could be truly integrated into the operation of government at all levels, that would be a very important and significant move.

Senator MARGETTS —You have made comments in relation to the inability—or your opinion that there is inability—for the environment to be protected in Queensland simply using the current state legislation. In regard to the IPA in Queensland and the Fisheries Act, can I get your comment as well in relation to their ability to protect things such as seagrass meadow clearance or mangroves? The fisheries people from Queensland Seafood basically seemed to think those bills will be able to protect the seagrass meadows and mangroves because they state that those things should not be cleared and that is sufficient protection. Would you like to venture an opinion on that?

Ms Bragg —I can comment a little on that, Senator. The Integrated Planning Act is mainly to cover local government areas, but it can cover areas in the water. Under the Integrated Planning Act, clearing of vegetation is not able to be regulated by a planning scheme. As to seagrass, I guess that could be regarded as vegetation, so there may be some difficulty in protecting seagrass under the Integrated Planning Act. I had not actually thought of seagrass in that context. But, certainly, using planning schemes, the Integrated Planning Act currently makes it impossible to directly regulate vegetation clearing.

With respect to the Fisheries Act, that act is to be amended consequential upon the Integrated Planning Act which is a 1997 act. The Fisheries Act already offers some protection to mangroves, requiring permits, and so forth, for their clearing. As someone who has spent several years trying to improve the proposed Integrated Planning Act, and as developers do have rights to refuse to supply information requested to assess the proposals under the Integrated Planning Act, I would not be confident that there would be protection of seagrass or other tidal vegetation.

Senator MARGETTS —Do you know of any prosecutions that have occurred using the Fisheries Act in relation to either mangroves or seagrass clearance?

Ms Bragg —I do not know of any prosecutions. I do know of cases of clearing.

Senator MARGETTS —Right. Would it be true to say that you are worried that the Fisheries Act is not necessarily enforceable on those issues?

Ms Bragg —I would not go so far as to say that the Fisheries Act is not enforceable with respect to mangroves. In Queensland we have had a general problem of having environmental laws and town planning laws which are not adequately enforced. It is often an issue of the culture.

Senator MARGETTS —It is not a matter of enforceability; it is a matter of ministerial will or something of that nature.

Ms Bragg —Ministerial will and the culture within the relevant Public Service, and also the resources available for that task.

Senator ALLISON —In your submission, you say that the accreditation process should require the state environment minister to be responsible for triggering an EIS and making sure

there is sufficient information provided. Could you expand on that? I think it is the second submission we have had this morning that has made a suggestion along those lines. How would this work and how would it provide better protection?

Ms Bragg —I guess we have had an ongoing problem in Queensland where particular departments are both promoters of an industry and also responsible for the assessment of proposals. For example, the Department of Mines and Energy was criticised in a Criminal Justice Commission report because it was both promoting the mining industry and in charge of assessing the environmental impacts. It was perceived as a conflict of interest within the department. If we had the environment minister responsible for considering development proposals or state works and forming an opinion as to what type of environmental assessment was required and whether any environmental assessment done was adequate, we would see that as a vast improvement which would help to overcome the existing problems of conflict of interest. Also, we do need a more unified, integrated system of environmental impact assessment in Queensland. Rather than having part of the responsibility with Mines and Energy under the Mineral Resources Act and part of the responsibility with the diverse state departments, with the ongoing problems of conflict of interest, it would be much more sensible if the decision as to whether environmental impact statements were required, and monitoring of the quality of those statements, were to go to the environment minister.

Senator ALLISON —A number of submissions have also talked about the lack of public involvement in the bilateral agreements, for instance, that there was a problem that they would be agreed between the Commonwealth and state governments without involvement of anybody else. Have you thought about that? Do you have a process in mind which might overcome that problem and satisfy all of the stakeholders—to use that terrible word—that their views had been taken into account and were part of it?

Ms Bragg —We would be very interested to see a public draft of any bilateral agreement, particularly because groups like the Environmental Defender's Office who have day-to-day experience in relation to development applications are aware of the sorts of issues that should be looked out for in relation to any accreditation of the Queensland process. So I think public availability of a draft is very important. Also, there should be some ongoing monitoring and review of how Queensland is going, if any accreditation does occur, and that information should be also be public. Those who have experience in relation to individual development proposals that might come up might have very useful feedback on how they believe the system could be improved and is, or is not, working. I think that sort of monitoring and review of the bilateral agreements is very important because, if that is not built into the system, then, where there is unsatisfactory performance by Queensland, it would be a highly contentious political issue to try and withdraw the accreditation.

Mr Silva —That process could be formalised with time lines. Preferably, there would be a positive obligation upon the Commonwealth to actually respond to submissions which are made by the public, which is a common feature of other public consultation processes, particularly in the development of planning schemes and instruments of that type.

Senator ALLISON —Would you agree, too, that perhaps these bilateral agreements ought to go to some scientific advisory body? That is another suggestion that was made.

Mr Silva —Depending on the nature of the bilateral agreements and the issues that they are proposing to cover, I would think that it would be important to obtain as much expert input as possible. If it is intended to conserve biodiversity and avoid the degradation of the environment generally, clearly there is a need for some expert input into the process.

Senator ALLISON —You talk about the need for minimal environmental standards to be part of those bilateral agreements. Have you had a chance to think about what they might be? Who do you suggest ought to develop those?

Mr Silva —The national submission addresses that in more detail. The main criterion that we would like to see is that best environmental practice be reflected in all criteria under the bilateral agreement so that, if the bilateral agreements, for example, are accrediting a state environmental impact assessment process, that impact assessment process should reflect best practice. The Commonwealth has conducted reviews in the past which have come up with some recommendations about what best practice should be in relation to impact assessment.

Senator ALLISON —In your view, should this be in the legislation?

Mr Silva —Yes. If it is not in the legislation, it is at the whim of government whether it is included in subsequent regulations. The public is entitled to certainty in advance about what the bill promises the environment, especially in relation to the bilateral agreements because they are potentially so significant.

Senator ALLISON —We talked about a review earlier. Do you have a feel for the period after which there ought to be a review? Would it be five years?

Ms Bragg —I believe the major submission might be talking about three years. It needs to be a length of time that is sufficient to see some development proposals go through from beginning to end, but not such a long time that major problems in the system might be allowed to wreak damage. I would refer you to the major submission of the Environmental Defender's Office of New South Wales on that point.

Senator ALLISON —You also say that you think there is a need for a single, integrated law that governs environmental impact assessments. Does that suggest that there needs to be a parallel raft of legislation in each of the states along with this bill? Is that something that ought to have been negotiated in the intergovernmental agreement?

Mr Silva —We are saying that there does need to be integration of environmental assessment procedures in Queensland and we do believe that accreditation of state processes before that happens would be defective, deficient and unlikely to produce good environmental outcomes. Essentially, we are agreeing that there should be, as a precondition to accreditation of state EIA processes, a proper consolidation of those processes in Queensland and in each other state where a bilateral agreement is proposed to be entered into.

Senator ALLISON —Based on your knowledge of the states—and perhaps starting with Queensland—how likely do you think that would be able to be done?

Ms Bragg —Do you mean in legal or political terms?

Senator ALLISON —Both.

Ms Bragg —There is certainly no legal problem with an act which deals with environmental impact at all levels of government within the states' powers. I believe that this proposed Commonwealth reform in fact provides a good opportunity to prompt Queensland to get its act together with respect to environmental impact assessment. There is a new, incoming state government in Queensland. They are well aware of the problems with the Queensland environmental impact system. In fact, when they were last in government at the end of 1994[hyphen]95 they were proposing to reform the State Development and Public Works Organization Act. Those proposals reached an advanced stage. Then there was a change of government, and that reform proposal was lost.

We now have an Integrated Planning Act which has a number of deficiencies, some of which we have mentioned, which have created a level of barrier to reform. Various state government departments are now tuning their administrative structures and processes towards that new piece of legislation. I imagine it would require a little bit of extra energy and pressure at a political level to prompt a major reform at this stage, but we certainly feel that we have examples which demonstrate that the environmental impact assessment process in Queensland is not working. We think that those examples really do speak for themselves. The fact that developers now have the right to refuse to supply information requested by a state agency under the Integrated Planning Act is surely the most blatant example of poor practice. That provision is included as an attachment to our written submission.

The Dawson Dam is a proposal which you might be aware of. It is a proposal for a major dam in the Central Queensland area. The impact assessment statement was completed under the State Development and Public Works Organization Act, which has no definition of an environmental impact statement—in fact, no mention of it. It merely includes the administrative procedures which are used. The then Minister for Natural Resources under the previous coalition government made a decision to proceed with that major dam when the impact assessment statement did not fully address downstream impacts on the estuarine areas of Central Queensland and when a water allocation management plan which was to have addressed downstream impacts was not yet complete.

We believe that examples like the fragmented and unsatisfactory process in relation to the Dawson Dam should be enough to fuel a reform of impact assessment laws in Queensland, but we really need a bit of a push from the Commonwealth through this process and through getting minimum standards as a requirement of bilateral agreements for that to occur. Surely we want some sort of consistency in the process in different states so there can be certainty for the public, the development industry and the different levels of government that have to deal with these proposals.

Senator ALLISON —Just on that matter, I am told that bureaucrats make judgments about legislation on the basis of the number of times the minister is mentioned, and this bill is full of `the minister may' and `the minister must'. Is that your view too? Is there too much discretionary power given to the minister in this legislation?

Mr Silva —We made a comment that we do not think that those sections of the act that relate to the bilateral agreements are sufficient. Those sections consistently, one after the other, say, `the bilateral agreements may be entered in relation to this matter'—whether it be protection of world heritage or Ramsar wetlands, et cetera—`only if the minister is satisfied.' The problem is that the mechanism for reviewing the minister's satisfaction is judicial review; it is not going to allow merits review of that decision. We all know of the failings of judicial review as a mechanism for determining whether it is the right decision or the wrong decision. It does not do that. It just determines whether the decision is legally correct.

So, if the bill relies on those ministerial discretions and the only way to check whether they have been exercised rightly or wrongly is through judicial review, it is certainly imperfect and it does not offer sufficient protection. We would rather see substantive concrete provisions in the bill which set standards rather than relying on ministerial satisfaction.

CHAIR —Can we just go over the review part again? You mentioned before you had a concern about the review process for the bilateral agreements. Can you reiterate that concern?

Mr Silva —I think Jo made the comment about that.

Ms Bragg —The comment was that we thought there should be a specific period after which bilateral agreements are reviewed—possibly three years. I referred to the major submission from the Environmental Defenders Limited of New South Wales on that point. I believe they suggested that three years was the appropriate period.

CHAIR —Section 65 of the bill on page 65 says:

65 Expiry and review of bilateral agreements

(1) A bilateral agreement ceases to have effect for the purposes of this Act:

(a) 5 years after it is entered into; or

(b) at an earlier time when the agreement provides for it to cease to have an effect for the purposes of this Act.

. . . . . . . . .

(2) The Minister must:

(a) cause a review of the operation of a bilateral agreement to be carried out; and

(b) give a report of the review to the appropriate Minister of the State or Territory that is party to the agreement;

before the agreement ceases to have effect as a result of this section.

It would seem to me that it has to be done within that five years, or earlier if the bilateral agreement ceases before then or is revoked by either of the parties.

Ms Bragg —We suggest that five years is too long a period—

CHAIR —But I thought you indicated earlier that there was no review process. I will not put words in your mouth because it is not hygienic—I have said that before in another hearing—but I thought that you said that there was not a review process. It does not matter, but there is a review process.

Ms Bragg —We are proposing three years.

CHAIR —You did mention five years—it is there. Because we are not experts on the bill either, we will need to go back and get advice on the things you have said. If you raise something that we feel has been covered in the bill, we will respond to that in the report because somebody could take it as gospel that it is not there. I have not pulled it up because I am not familiar with the whole bill. That is an example where there is a clause. You are saying three years. We can debate whether it should be three years or not, but there is a review process.

Ms Bragg —We refer you to the submission of the Environmental Defender's Office of New South Wales on that point.

Senator ALLISON —To follow up on that question, I noticed in the bill that the bilateral agreement ceases to be after a five[hyphen]year period. What do you think of that? Is that a problem? Why do you think it is in the legislation? It seems to me to be fairly arbitrary, given that some of these bilateral agreements will be for wide ranging purposes. Why five years? Would you recommend, for instance, that that period of time after which they disappear should vary according to the kind of agreement they are? Is the review that you talk about necessarily related to the completion of the agreement period? I would have thought that a review should take place to determine how effective the agreement was and so on. I think you are saying that it does not simply relate to a review at the end of a period of time.

Ms Bragg —If there was public availability of the draft bilateral agreement and we were able to see the scope of the agreement—what sorts of matters were covered, what requirements

might be placed on the Queensland government—we would then be able to form an opinion as to exactly what might be an appropriate period and be able to give a better informed answer. But, certainly, I think the purpose of the review would be to really look at the quality of decision making and so forth that was occurring under the state processes which have been accredited through the bilateral agreement.

CHAIR —You expressed concern, and a lot of people today have expressed concern, about transparency or public knowledge of the bilateral agreement or involvement in that process. If you are going to involve somebody else in the process, the public or whatever—and who the public is, I do not know, when it comes to that—with the number of agreements that have to be done, how would you have a process that was workable, that gave some sort of certainty to the people involved so that it did not end up with the people or processes being bogged down because you had open slather on bilateral agreements? Have you got any suggestions as to a workable mechanism for scrutiny of bilateral agreements? I am not saying that I necessarily agree with you, but you cannot just say, `Let's have a public hearing' when, with every bilateral agreement, we have 300 or 5,000 submissions. How would you have a workable scrutiny of bilateral agreements?

Ms Bragg —To start with, if there were some sort of minimum standards or criteria within the proposed new Commonwealth legislation, that would then better delineate the scope of what would be in the bilateral agreements.

CHAIR —Could that get out of hand?

Ms Bragg —It probably would improve the process because—

CHAIR —No. I mean could delineating the things get out of hand? I do not know; I am asking you because you have got a lot of background in this area. How broad has that got to be to satisfy your concerns—the delineating, the base things, the bilateral agreement? Is it a long list, a short list, a doable list? How do you perceive the list? What is it going to look like?

Ms Bragg —I am just speculating here; it is not something I have given a great deal of thought to.

CHAIR —You make a statement and, if we were to say, as a committee, `Yes, great idea; how does it work in legislation?', you might suddenly find that you have got a list as long as your arm or it might be so short that it does not do what you want.

Ms Bragg —Yes, I do understand what you mean.

CHAIR —Do you see the problem that I have got? You make a suggestion; I want to know what you think it looks like.

Ms Bragg —I could give you a few examples of the sorts of matters I thought could be there and it probably will not be comprehensive. For example, for major projects, one requirement could be that the state system had mandatory public consultation on terms of reference and on draft impact statements and similar requirements as to the public availability of the various documents including supporting materials. I think it would need to—

CHAIR —Has the Commonwealth got the power to require the state to do that?

Ms Bragg —The Commonwealth could, through the bilateral agreements, because it would be accrediting the state to deal with matters of national environmental significance. I guess that I would also expect to see the principles of ecologically sustainable development appropriately reflected in the state legislation. I would expect to see common definitions of things like the precautionary principle and so forth. I will not go into it now, but in Queensland

we have definitions of the precautionary principle in the Integrated Planning Act that are inconsistent with the national strategy in the intergovernment agreement. So I would expect to see consistent definitions. I guess it is a precautionary approach, but I would expect to see some of these principles reflected.

CHAIR —Are you talking about general principles rather than nitty-gritty lists?

Ms Bragg —It is a nitty-gritty list in that it would refer to the need to incorporate those principles in the state legislation. I would expect there should be a definition of what an environmental impact statement is. In Queensland legislation, the repealed Local Government Planning and Environment Act had one and that proved useful when you had poor quality statements. The Integrated Planning Act does not make any reference to impact statements; that presents practical problems. That is another requirement to have impact statements defined as to what they are. That is probably all I would feel comfortable in saying, but I think they are practical matters which would go some way towards ensuring a better quality impact assessment system.

CHAIR —That is the first thing. The second one is about the scrutiny of it. Do you have any ideas about scrutiny of the bilateral agreements? People have mentioned that today over and over. How do you get it workable so that you do not have an indeterminate process that goes on, with no certainty about how long a process would take?

Mr Silva —I think I said before that I do not see any problem with having time lines governing the public participation process in the development of bilateral agreements. That happens with all sorts of public instruments at the present time. I used the example of planning schemes before. That is a good example because throughout Australia local authorities regularly create new planning schemes which cover all their activities in their jurisdictional area and they all provide for public input into the development of those planning schemes. There are strict time lines requiring the advertisement of the planning scheme, the release of the draft planning scheme, the time within which public submissions can be made and the obligation on the local authority to consider the submissions and respond to them, and then they come up with a document.

CHAIR —Then there is a bilateral agreement that does not meet the majority of the public's concerns. Do they go ahead or do they have another process?

Mr Silva —No. If you use the planning scheme example, they go ahead because ultimately it is a political process and the government of the day decides whether or not to go ahead. The public submission process does not prevent that, but what it does do is inform the government what the public views are. I guess, if they are sufficiently persuasive, the government would take notice. It does still rest with the government. The level of procedure can be different. Using that planning scheme example, under the IPA planning scheme it is now a two[hyphen]tiered public consultation process; it used to be a one[hyphen]tiered public consultation process. So a decision could be made about how much public consultation process was appropriate, but clearly there should be a mechanism for it.

CHAIR —My nodding does not necessarily mean I agree. It is interesting to hear your views. Senator Margetts, do you have any more questions?

Senator MARGETTS —You mentioned the concerns about exempting—or was that the previous group—the Great Barrier Reef Marine Park from federal environmental scrutiny. I asked questions previously of the Australian seafood industry about whether or not the pressure for carrying out experiments on the Great Barrier Reef Marine Park is in the fisheries interest or in the environmental interest. Do you have an opinion about who is the appropriate body

to manage the Great Barrier Reef Marine Park and whether or not the balance occurring at the moment is appropriate?

Mr Silva —My view is that the marine park authority is the appropriate agency. I think a resource such as the marine park should be managed by a specialist agency such as GBRMPA. I think that applies also in the case of the other world heritage area—the Wet Tropics Management Authority—in northern Queensland. In both cases, a specialist agency delivers better outcomes and makes better decisions where there are jurisdictional problems between different Commonwealth agencies and a political decision does need to be made to resolve those jurisdictional conflicts. I am not particularly familiar with the nature of the conflict between the fish management authority and the marine park authority in relation to fishing, but there should be a mechanism for resolving that, rather than allowing the conflict to continue.

Senator MARGETTS —I will just fill you in a little bit. That is in relation to the experiments on some reefs that have not been fished before, which are also connected with the live fish trade. Are you aware of those? What role do you think the federal minister or federal environmental laws should play?

Mr Silva —My opinion about that would be that the marine park authority should be the body which determines—

Senator MARGETTS —Who are the ones suggesting it. It has been suggested that it was the fisheries that were pushing it, rather than a conservation ethic pushing it.

Mr Silva —I think the marine park authority is forced to engage in a juggling act between the different sectors, but its primary duty is to preserve the world heritage area known as the marine park, which includes the marine park, so I would be critical of pressure being applied to the marine park authority which compromised that primary conservation objective.

CHAIR —Senator Margetts, we have run over time, Professor McDonald is waiting and we are due to finish at 3.15 p.m.

Senator MARGETTS —Okay. Thank you.

CHAIR —I thank you very much for the time you have taken with your submission and for the additional information you have given today. I thank you for your attendance. We have a long way to go as this is only the first hearing. Thank you.

Mr Silva —Could I just note that we did intend to say at the outset that we wanted to recognise the Commonwealth support for both our offices. That has assisted us to prepare the submissions and attend today.

[2.51 pm.]