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Thursday, 15 May 2003
Page: 11252

Senator IAN CAMPBELL (Western Australia—Parliamentary Secretary to the Treasurer) (3.35 p.m.)—I present two government responses to committee reports as listed on today's Order of Business. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The documents read as follows—

Mr Peter Hallahan

Secretary

Senate Legal and Constitutional References Committee

Parliament House

CANBERRA ACT 2600

Dear Mr Hallahan

Government Response to the Inquiry into the Commonwealth's actions in relation to Ryker (Faulkner) v The Commonwealth and Flint

I refer to the Committee's report dated April 1996 in relation to this litigation. I regret the delay in responding to the Report.

The recommendations made by the Committee were that:

1. in cases involving a claim against the Commonwealth, the Attorney-General review arrangements relating to the provision of advice on funding under section 305 of the Bankruptcy Act 1966 (the Act) in order to ensure that any perception of a conflict of interest on the part of the Commonwealth does not arise; and

2. based on the evidence presented during the inquiry, an independent inquiry into the Commonwealth's actions in relation to Ryker (Faulkner) v the Commonwealth and Flint is not justified.

The Government welcomes and accepts the second recommendation that a further inquiry is not justified.

In relation to the first recommendation, I am satisfied that the existing arrangements continue to be appropriate.

Those arrangements operate in this way:

· In practice, the powers to approve funding are delegated to the Inspector-General in Bankruptcy, and the Assistant Secretary and the Director, Legal and Practice Support Section, of the Secretariat Branch of the Insolvency and Trustee Service Australia (ITSA).

· The delegates make decisions on applications for funding in accordance with guidelines approved by the Attorney-General. A summary of those guidelines is published in the Annual Report on the operation of the Act.

· The delegates are bound by the APS Code of Conduct set out in the Public Service Act 1999. That Code requires, amongst other things, that they behave honestly and with integrity in the course of their employment.

· Decisions made under section 305 of the Bankruptcy Act are subject to review under the Administrative Decisions (Judicial Review) Act 1977.

· In cases where the delegate requires an opinion from counsel on some aspect of a particular application, the delegate will ordinarily have access to counsel retained by solicitors acting for the trustee in bankruptcy. Even in those cases run by the Official Trustee, counsel usually are private practitioners, not officers of the Australian Government Solicitor (AGS). Thus the delegate ordinarily has independent legal advice available to him or her and decides whether to authorise funding on the basis of the material presented by the trustee.

· In rare cases, the delegate may seek legal advice from an officer from the AGS on the merits of the trustee's proposed action. In those circumstances, there could be a perception of a conflict of interest if the Commonwealth or a Commonwealth agency is a defendant to the proposed action, and the AGS was already acting for the defendant. In that case the AGS would decline to give advice to the delegate.

· In this context the Solicitor-General's role is quite separate from that of the AGS. As noted by the Committee, one of the functions of the Solicitor-General under the Law Officers Act 1964 is to give his opinion on questions of law referred by the Attorney-General. The Solicitor-General is not only entitled, but is bound, to act in accordance with relevant legislation. This is the situation whether or not some person has a perception, however misconceived, that a `conflict of interest' is involved. Indeed, the Solicitor-General is a primary source of independent, expert and objective legal advice to the Attorney-General.

The Prime Minister has agreed that this letter should be treated as the Government's response to the Committee's report and, if the Committee wishes, that it be tabled.

Yours sincerely

DARYL WILLIAMS

—————

Report of the Senate Environment, Communications, Information Technology and the Arts Reference Committee onCommonwealth Environment Powers

May 1999

Response to Recommendations

Recommendation 1

The Commonwealth should not hesitate to creatively employ the wide powers it possesses in order to protect and conserve the environment and should vigorously defend its power when challenged.

The Commonwealth has employed, as appropriate, the powers available to it under the Constitution to institute the most fundamental reform of Australian environment legislation since the first Commonwealth environment legislation in the early 1970s. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) draws on the Commonwealth's Constitutional powers in relation to external affairs, corporations, territories and trade and commerce to ensure, in cooperation with the States, a truly national scheme of environmental protection and biodiversity conservation.

Recommendation 2

The Commonwealth Government should establish an independent statutory Environmental and Constitutional Law Experts Commission to advise the government on: (i) when national environmental legislation is necessary, (ii) the government's ability to pass environmental legislation under existing powers, and (iii) the form such legislation should take. The Commission should also be empowered to monitor, review and advise the Government on its performance in relation to its responsibilities for environmental protection and ecologically sustainable development.

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.

The Government has undertaken a major reform of Commonwealth environment law. The reform process culminated in the development of the EPBC Act which for the first time provides a truly national scheme of environment protection and biodiversity conservation.

The spirit of recommendations 2 and 26 is, to an extent, reflected in the various mechanisms in the EPBC Act for monitoring and review, including a requirement that Commonwealth Departments and agencies report on their performance with respect to ecologically sustainable development and impact on the environment. A State of the Environment report is required to be prepared every 5 years. The matters of national environmental significance are to be reviewed every 5 years, and the operation of the Act must be subjected to an independent review within 10 years of its commencement.

In addition, the EPBC Act is, through the bilateral agreements mechanism, promote the adoption of `national standards'.

Recommendation 3

The Commonwealth should exercise a leadership role in the protection and improvement of the Australian environment. This role should be supported by the unsparing use of all Constitutional power available to the Commonwealth to act in the field of the environment.

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.

The Government has exercised a leadership role in the protection and improvement of the Australian environment through the implementation of a wide range of policies and programs. In terms of the legislative framework the EPBC Act provides for Commonwealth leadership on the environment, while also recognising and respecting the responsibility of the States and Territories for delivering on-ground natural resource management. The EPBC Act draws, as appropriate, on the Commonwealth's existing Constitutional powers in relation to external affairs, corporations, territories and trade and commerce to ensure protection for the environment. The Government believes these powers provide a sound basis for the EPBC Act and that amendments to the Constitution are not required.

Recommendation 4

The use of the concept of “national environmental significance” should be abandoned as a means of delineating the appropriate role of the Commonwealth in the regulation of environmental matters.

Recommendation 21

The Commonwealth should be responsible for environmental impact assessment process whenever it is involved in making a decision about an activity or matter (its own or that of a third party) that may have a significant effect on the environment.

Not accepted.

The Government has reviewed and fundamentally reformed Australian environment legislation with Commonwealth interests focused on the matters of national environmental significance. The concept is articulated in the COAG Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment which has been signed by all Governments. Under the EPBC Act, Commonwealth involvement in the environmental assessment and approval process is triggered by projects or activities which are likely to have a significant impact on matters of national environmental significance. The States and Territories are responsible for assessing impacts on other aspects of the environment.

The Government notes that adoption of recommendations 4 and 21 would result in some projects or actions that affect a matter of national environmental significance not being assessed by the Commonwealth.

Recommendation 5

The Commonwealth must fully and effectively exercise its powers in negotiating, implementing and enforcing its international environmental obligations. National obligations require national administration.

Accepted in part.

The implementation of commitments made under international environment agreements often requires a cooperative approach involving all relevant jurisdictions. The EPBC Act provides a legislative basis for implementing Australia's commitments under a number of these agreements while recognising the role of the States and Territories.

Recommendation 6

The Government should conduct an inquiry into the possible use of its obligations under the Convention of Biological Diversity to establish a comprehensive framework for environmental legislation in Australia.

Not necessary.

The EPBC Act ensures that the Commonwealth plays a leadership role to fulfil relevant treaty obligations including those of the Convention on Biological Diversity. The EPBC Act strengthens Australia's capacity to conserve its biodiversity through a substantially improved and integrated framework. In addition to the environment protection measures related to threatened and migratory species, Ramsar wetlands, World Heritage properties, and the Commonwealth marine area, the EPBC Act provides for world's best practice management of Commonwealth reserves and other protected areas. The EPBC Act also enables the identification and monitoring of biodiversity, the making of bioregional plans, and the protection of critical habitat, cetaceans and other marine species.

Recommendation 7

The Commonwealth should acknowledge that it has ultimate responsibility for the safekeeping of World Heritage areas. The Commonwealth should exercise primary legal control over the protection, preservation and management of these areas.

Recommendation 8

The Commonwealth should strengthen its statutory framework for the identification and protection of World Heritage. The legislation should provide a comprehensive national regime.

Recommendation 9

The Commonwealth should continue to consult with States in order to obtain their agreement on nominations to the World Heritage List. In the event of disagreement, the Commonwealth should retain its power to make unilateral nominations. The Commonwealth should provide the ability for interested members of the public to nominate a property for listing to be considered by Commonwealth and relevant State Governments.

The Commonwealth, as a State Party to the World Heritage Convention, recognises its duty of identifying, protecting, conserving, preserving and transmitting to future generations Australia's World Heritage properties. The EPBC Act provides up-front protection for World Heritage properties, a stronger and more efficient assessment and approvals process, and improved management for all World Heritage properties through the application of consistent World Heritage management principles. There are significant penalties for actions taken affecting World Heritage properties in contravention of the Act. State agencies are responsible for the day-to-day management of the majority of Australian World Heritage properties.

The Commonwealth will continue to consult with the States, Territories and major stakeholders before nominating properties to the World Heritage List. The EPBC Act requires the Commonwealth to use its best endeavours to reach agreement with States and Territories and owners and occupiers on the submission of the property for World Heritage listing and the management arrangements prior to the property being nominated. A cooperative approach to nomination and management clearly facilitates the best protection for a World Heritage property. However, the Commonwealth will always retain the legal capacity to nominate a property to the World Heritage List in the absence of consent from the relevant State. In addition, in the case of a property not on the World Heritage list where some or all the World Heritage values are under threat, the Commonwealth is able to protect the values by declaring the property to be a declared World Heritage property under the EPBC Act.

Recommendation 10

The Commonwealth should not devolve responsibility for management of World Heritage areas to the States without ongoing supervision and reporting requirements.

Recommendation 11

The Commonwealth should establish binding national management principles to effectively protect and preserve World Heritage areas. These principles should provide the basis for mandatory management plans for all Australian World Heritage areas.

The EPBC Act establishes World Heritage management principles. Under the EPBC Act the Minister must make management plans for World Heritage properties which are entirely in Commonwealth areas. For properties located within a State or Territory the Commonwealth must use its best endeavours to ensure a plan for managing the property in a way that is not inconsistent with Australia's obligations under the World Heritage Convention or the Australian World Heritage management principles is prepared and implemented in cooperation with the State or Territory.

Recommendation 12

The Government should amend the World Heritage Properties Conservation Act 1983 to ensure that the Act applies to a defined and adequate buffer zone around World Heritage properties which takes into account the natural ecosystem to which the World Heritage area belongs.

Not accepted.

Boundaries of World Heritage properties are determined to protect the World Heritage values of that property. The World Heritage Properties Conservation Act 1983 has now been repealed and replaced by the EPBC Act. The protection provided by the EPBC Act applies to actions both within and outside the World Heritage property which are likely to have a significant impact on the World Heritage values of the property.

Recommendation 13

The Commonwealth should entrench the IUCN Guidelines for Protected Area Management Categories in national legislation. In connection with World Heritage areas the Commonwealth should ensure that exploitation and occupation of such areas is eliminated and prevented.

Accepted.

The proclamation made under the EPBC Act declaring a Commonwealth reserve must assign the reserve to an IUCN category such as national park or wilderness area. Regulations made under the EPBC Act prescribe the Australian IUCN reserve management principles which identify the purpose for which a Commonwealth reserve assigned to a particular category IUCN category is primarily managed.

The EPBC Act provides up-front protection for World Heritage properties, and improved management for all World Heritage properties through the application of consistent World Heritage management principles.

Recommendation 14

The Commonwealth should prohibit any activity that would irreparably harm potential World Heritage areas within Australia at any time prior to completion of the assessment process.

Properties not yet on the World Heritage List but specified in a declaration under the EPBC Act have the protection of declared World Heritage properties for the period for which the declaration is in force.

Recommendation 15

The Commonwealth should ensure that an assessment of World Heritage values is required in the early stages of the Regional Forests Agreement (RFA) process.

The RFA process involved Comprehensive Regional Assessments, which included assessment of potential world heritage values in RFA areas before Agreements were developed.

Recommendation 16

The Commonwealth should retain management responsibility for listed Ramsar wetlands in order to ensure that its obligations under the Convention are met.

The EPBC Act provides strong protection for Ramsar wetlands while recognising the role of States and Territories in day to day management of sites.

Recommendation 17

The Government should make regulations under section 69 of the National Parks and Wildlife Conservation Act 1975 to require Commonwealth assessment and approval of all proposed developments and uses of listed wetlands that are likely to have a significant impact on their environment.

Subject to limited exceptions, the EPBC Act, which replaces the National Parks and Wildlife Conservation Act 1975, requires that a person must not take an action that is likely to have a significant impact on the ecological character of a declared Ramsar wetland without the approval of the Commonwealth Environment Minister.

Recommendation 18

The Government should amend the EPIP Act to require that all decisions made under the legislation are consistent with the principles of ESD as defined in Section 6(2) of the New South Wales Protection of the Environment Administration Act 1991. The legislation should contain a positive duty on decision-makers and other participants in EIA processes, to carry out functions provided under the legislation to meet the objective of ecologically sustainable development.

The EPIP Act has been superseded by the EPBC Act. The objects of the EPBC Act include the promotion of ecologically sustainable development. The EPBC Act requires the principles of ESD to be taken into account when considering project approvals. In addition the EPBC Act requires the Environment Minister to specifically take into account the precautionary principle in making a range of important decisions under the Act.

Recommendation 19

The Commonwealth should use its powers to adopt national standards for environmental impact assessment of a project proposal likely to have a significant impact on biological diversity in Australia.

The EPBC Act focuses Commonwealth interests on the matters of national environmental significance. This arrangement provides strong protection for key components of Australia's biological diversity. The EPBC Act enables the Commonwealth to accredit State and Territory environment assessment processes provided they meet stringent standards. Through this accreditation process the Commonwealth is able to ensure the standards of environmental assessment in States and Territories will meet best practice benchmarks.

Recommendation 20

The Commonwealth should establish, under Article 8 of the Convention of Biological Diversity, in conjunction with the external affairs power, national regulation for approvals requirements and standards in connection with proposed projects that may adversely impact on biological resources important for the conservation of biological diversity and for processes and categories of activities identified as likely to have a significant adverse effect on the conservation of biological diversity.

The EPBC Act provides protection for key components of Australia's biodiversity by requiring approval from the Environment Minister for any action that has, will have or is likely to have a significant impact on matters of national environmental significance.

Recommendation 22

The Commonwealth should ensure that the national requirements and standards it sets for environmental impact assessment include public involvement in the determination of the environmental significance of proposals.

The EPBC Act provides for extensive public input to the environmental impact assessment process. State and Territory environmental impact assessment processes can only be accredited if they satisfy best practice benchmarks, including requirements for public consultation.

Recommendation 23

The Commonwealth should ensure that the national requirements and standards it sets for environmental impact assessment include the right of any person to refer a proposal to the relevant authority for determination as to whether a proposal is likely to have a significant effect on the environment.

The EPBC Act places the onus on proponents to refer actions that may require approval from the Commonwealth Environment Minister. In addition State and Territory agencies and Commonwealth agencies may refer a proposal to the Environment Minister. If the proposal to take the action is not referred, the person cannot get an approval under Part 9 to take the action. If taking the action without approval contravenes Part 3, an injunction could be sought by an interested person to prevent or stop the action.

Recommendation 24

The Commonwealth should ensure that the national requirements and standards it sets for environmental impact assessment include open standing provisions to allow public access to the courts in order to test the validity of governmental decision and restrain breaches of the law.

The EPBC Act contains appropriately broad standing provisions.

Recommendation 25

The Commonwealth should increase funding for the Environmental Defender's Offices and peak conservation groups. Funding for the Environmental Defender's Offices should not be restricted in its use to non-litigation activities.

Not accepted.

The Commonwealth already provides substantial funding to the Environmental Defender's Office to provide advice, education, resource materials, promotion and law reform/research activities for the benefit of the general public. Grants are also provided to environment and heritage groups across Australia to cover administrative costs associated with their environmental work.

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.

The Commonwealth already engages in extensive consultation with the wider community and industry in developing the basis for any comprehensive and binding national standards for the protection of the environment.

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.

Accepted.

The EPBC Act provides a mechanism for accrediting State environment assessment processes and approvals where appropriate and where such processes meet `best practice' criteria. These requirements are set out in the EPBC Regulations and were developed in consultation with State and Territory governments and the community. The Commonwealth has entered into bilateral agreements with Tasmania, Western Australia and the Northern Territory. Following its recent release for public comment, the bilateral agreement with Queensland is expected to be completed early in 2003. The Commonwealth is working with the remaining States and Territories to advance the development of bilateral agreements.

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, not withstanding 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.

The Government intends to act in accordance with COAG Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment. It should be noted that both the Heads of Agreement and the EPBC Act enable the Commonwealth to prescribe additional matters of national environmental significance, after appropriate consultation with the States and Territories.