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Thursday, 29 May 2003
Page: 15545

Mr KING (12:49 PM) —There is perhaps no more dramatic an example of how speedily community attitudes and the responsibilities of government can change within our federal structure than that provided by our approach to the protection of our environment and heritage. It was just over 30 years ago that the Commonwealth took its first steps in the field of environmental conservation with the establishment of a Commonwealth environment office by the Gorton government. Since then the Commonwealth, in line with community expectations, has expanded its powers and involvement in this policy field. It has been a process that has occasionally involved great leaps but predominately has been the gradual accretion of responsibility.

These steps can be traced by the actions of this parliament: the passage of the Environment Protection (Impact of Proposals) Act 1974, the establishment of the Australian Heritage Commission in 1975, the decision to protect the Great Barrier Reef and Fraser Island, and the World Heritage Properties Conservation Act 1983.

The most significant leap towards a national framework was the product of this government. It was something the WWF described as the biggest win for the environment in 25 years. The passage of the Environment Protection and Biodiversity Conservation Act 2001 represented the most comprehensive change in consolidation of the way in which the federal government perceived its role. For the first time, the Commonwealth outlined those matters that it regarded as being of national environmental significance and legislated to provide real teeth for its capacity to act to protect matters within that ambit. Legislation currently before the Senate in relation to a new national heritage regime will add a final weapon to the Commonwealth's armoury in these two areas.

Side by side with these developments, funding for environment and heritage programs has increased dramatically, most notably as a result of the Natural Heritage Trust. Forty years ago, these developments would have been beyond the imagination of most policy makers. But they have occurred, and they have been of enormous benefit to a unique and diverse environment and our rich heritage.

Not surprisingly, some have sought to stand in the way of these developments—most notably the state bureaucracies, who jealously guard their fiefdoms. But by and large they have been welcomed. The broader community has certainly supported a stronger role for the Commonwealth, and its gut instinct is based on a firm foundation of logic. If we have accepted international obligations to protect places such as World Heritage sites or Ramsar wetlands or to meet commitments in relation to biodiversity, responsibility ultimately falls on the federal government. If a matter is of national significance, all Australians represented by their federal parliament have an equal interest. If we believe that action must be taken to protect endangered species, our concern does not stop at state and territory borders. A resident of Perth has as much interest as a resident in New South Wales in seeing great icons like the Sydney Opera House protected. If a matter crosses state borders—for example, as a result of the flows of our great river systems—it logically falls to the Commonwealth to provide leadership.

Despite the great strides made by this government to give the Commonwealth legislation commensurate with these responsibilities, the jigsaw is not complete. Existing legislation relies on indirect powers provided to the federal government by the Constitution—the external affairs power, the corporations power, the trade and commerce power and the powers relating to race. It would be dishonest to claim that these powers do not provide wide coverage. Many environmental matters do fall within the ambit of our treaty obligations. We can legislatively require corporations and entities that trade to act in certain ways, and we have almost universal coverage in relation to Indigenous heritage. Nonetheless, they do not provide blanket coverage for the Commonwealth in fulfilling the legitimate obligations it has. For example, the Commonwealth's new heritage legislation does not benefit from the existence of an extensive international framework. Instead, it is primarily corporations and the Commonwealth itself that will come within its fold. Similarly, the High Court has made clear that a valid law relying on the external affairs power must be faithful in the pursuit of an obligation imposed by an international treaty. Legislation must be reasonably appropriate and adapted to the particular provisions of the treaty.

The combination of existing constitutional powers may not, for example, provide the federal government with the capacity to implement the type of regime needed to address one of our nation's most pressing environmental problems, the Murray-Darling Basin. If the processes in place—which involve divided responsibilities between several jurisdictions—fail, strong action might become necessary to protect the interests of our most important catchment.

For these reasons, I believe it is time for this parliament and the Australian community to consider the issue of whether our Constitution should be amended to include a specific head of power that would confirm the Commonwealth's responsibilities for nationally significant environmental and heritage matters. It is a step that I would certainly support, both for the practical reasons I have outlined and also to symbolically assert the national interest we all have in our heritage and environment. This question has been raised in the past but never comprehensively studied. The last real examination of the issue occurred 15 years ago during the deliberations of the Hawke government's Constitutional Commission. While it recommended against this approach, it did so at a time when acceptance of a strong Commonwealth role in the environment was still evolving.

I know that some will argue that the definitional issues will make such an amendment difficult. I reject that it is beyond the wit of Australians to overcome such drafting difficulties. Our Constitution—to use words that have almost become a cliché—has served Australia well. But it can never be a static document. If ever there was a case for an evolved role for the Commonwealth that could not have been envisaged on the decks of the Lucinda over a century ago, it is that relating to the environment and our heritage.