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Environment Protection and Biodiversity Conservation Bill 1998



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Bills Digest No. 8  1998-99

 

Environment and Biodiversity Conservation

Bill 1998

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official le gal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Contents

 

Passage History

Environment Protection and Biodiversity Conservation Bill 1998

Date Introduced: 2 July 1998

House:  The Senate

Portfolio:  Environment

Commencement:  On a day to be fixed by Proclamation. If not proclaimed within six months, than the legislation automatically commences six months after the date of Royal Assent.

Purpose

To establish a new legislative framework for Commonwealth environmental law.

Background

The Minister for the Environment , Senator the Hon. Robert Hill, has criticised the existing Commonwealth environmental laws on the basis that they do:

‘not ensure high environmental standards in the areas of Commonwealth responsibility’

• ‘not provide the community with certainty as to the Commonwealth’s role’

• not provide an efficient and timely assessment and approval process, and

• rely on ad hoc and indirect triggers such as foreign investment approval and Commonwealth funding decisions.(1)

In the Second Reading Speech for the Bill, Senator Hill notes that the Bill implements the COAG Agreement of 1997 and provides:

[a] framework for a more effective national approach to environmental management, ensuring resources are focussed on delivering better environmental outcomes at all levels of government.  The Commonwealth's role in this national approach will, for the first time, be clearly and logically defined.(2)

The existing acts that are to be replaced by the Bill are the:

Environment Protection (Impact of Proposals) Act 1974

• Endange red Species Protection Act 1992

• National Parks and Wildlife Conservation Act 1975

• Whale Protection Act 1980; and the

• World Heritage Properties Conservation Act 1983.

The Bill will therefore become the primary piece of Commonwealth legislation dealing with the environment.  Environmental issues like climate change and greenhouse gases, ozone depletion, air quality, soil salinity, desertification, inland water pollution by chemicals and/or sewerage, quarantine issues, water allocation issues, land degradation, land clearing and forest management are not directly addressed in the Bill.  Some issues are dealt with in other proposed legislation.  For example, the issues of land clearing and forest management are addressed to an extent in the regional forest agreements process supported by the Regional Forest Agreements Bill 1998.  That Bill was introduced into the House of Representatives on 30 June 1998 and is currently before the Parliament.  The remaining issues are either not addressed or are addressed in State and Territory legislation.

Constitutional Matters

In the Australian Constitution, the Commonwealth has no express head of legislative power over the environment.  The ‘protection, management, or regulation of the environment as a whole were not concerns of the framers of the Constit ution, and the environment as a generic concept was not considered in the allocation of power’.(3) There are, however, a number of powers open to the Commonwealth to enact laws concerning the environment.  These are:

• the corporations power

• the taxation power

• the trade and commerce power

• the external affairs power; and

• the power to make financial grants to the States.

And to a lesser extent:

• the Territories power

• powers over quarantine

• the export control power

• powers to control fisheries beyond territorial limits; and

• the power to make laws for ‘the people of any race’.

In the past, the corporations power and the external affairs power have been the most heavily used by the Commonwealth to enact laws with respect to the environment. 

Relevant International Law

Australia is a party to a number of multilateral and bilateral treaties relating to the environment, conservation and heritage.  Some of the more prominent multilateral ones are:

• Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar Convention)(4)

• Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention)(5)

• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)(6)

• Conven tion on Biological Diversity (the Biodiversity Convention)(7)

• United Nations Framework Convention on Climate Change(8)

• Convention for the Protection of the World Cultural and Natural Heritage(9)

• United Nations Convention on the Law of the Sea,(10) and

• The Antarctic Treaty system.(11)

The above treaties oblige Australia at the international level to protect, for example, Australia’s biodiversity and its unique environmental assets like the World Heritage listed Great Barrier Reef, Kakadu National Park and Lord Howe Island.

Australia:  State of the Environment Report 1996

The State of the Environment Report (SOE Report) claims to be the ‘first ever independent and comprehensive State of the Environment Report for Australia’ and was prepared by an indep endent advisory council together with seven ‘expert’ groups comprising over 200 eminent scientists and other experts.

The SOE Report identified some serious environmental problems in Australia, the most serious being the loss of biological diversity. The Report states:

Australia’s record of mammal species extinction is the worst for any country. In the past two centuries, the country has lost ten species of the original marsupial fauna of 144 species and eight of the 53 species of native rodents. More than one hundred mammal species are considered endangered, vulnerable, or potentially vulnerable.(12)

Other problems identified included the loss of old growth forests to logging, soil erosion and salinity and inland waters management.(13)

Some positive observa tions were also made in the SOE Report.  For example, it noted that Australia did not have, as many industrialised countries do, a significant problem with sulfur dioxide and acid rain.  Also urban drinking water in Australia was generally very good and oceans and estuaries that were not near major cities or coastal developments were generally in good shape.(14)

There were a number of areas mentioned in the report where Australia was perceived as setting an international example:

The listing of natural areas and cultural landscapes under the World Heritage Convention, and their subsequent protection, is a real success story, as is the increasing provision for other forms of reserve status, and the strengthening of State and Territory heritage legislation.(15)

And:

Some of our structural solutions to complex management problems, such as the Great Barrier Reef Marine Park Authority, the Murray-Darling Basin Commission and the Board of Management of Ulu r u-Kata Tju t a, are recognised internationally as good models of response.(16)

The Bill will replace the World Heritage Properties Conservation Act 1983 with a new regime defined in Part 15 Division 1.

Environmental Impact Assessments:  Good or Bad?

In his article Some Elements of Effective Environmental Laws , Australian environmental lawyer Brian Preston argues that:

Environmental factors need to be taken into account as early as possible in the planning process to avoid irreversible environmental damage or costly reformulation of the project.(17)

As a result, it is common for enviro nmental laws to require the preparation of an Environmental Impact Statement (EIS) or an Environmental Impact Assessment (EIA) or equivalent study.  That document is then taken into account in the decision-making process.  Under the Environment Protection (Impact of Proposals) Act 1974, (the EPIP Act) the Environment Minister is, once a proposal has been referred to him or her from the action Minister, able to order either an EIS or a Public Environment Report (PER), depending upon the degree of scrutiny required for the proposed project.  The present Bill also contains provisions that will require either a PER or an EIS in certain circumstances ( Divisions 5 and 6 ).  Division 7 of the Bill sets out a procedure for holding an inquiry into the relevant impacts of proposed action.

A very recent article reported the Warnken/Buckley study which assessed 170 of the 175 tourism developments subject to an EIA in Australia from 1979 to 1993 found that whilst EIAs were a valuable public information tool, from a scientific perspective they generally fell ‘a very long way short of the most basic standards’.(18) One of the conclusions of the survey was that ‘the quality of science practised in EIA is not even remotely close to the technical limits of ecological science’.(19) However, all EIAs were not equal and the best ones were found to be those that monitored ‘projects within or adjacent to the GBRMP [Great Barrier Reef Marine Park] and hence falling under the jurisdiction of the federal (Commonwealth) government’(20).  The Warnken/Buckley study found that:

most EIA documents make remarkably few testable predictions and even fewer are actually tested through subsequent monitoring programmes.(21)

Warnken/Buckley expressed the view that properly conducted EIAs could be ver y effective:

there is nothing fundamentally wrong with EIA processes; they are simply not being used effectively.(22)

In their opinion, EIAs were commonly underfunded, performed by people who were not specifically qualified in the appropriate scientific fi eld and who did not use the best available scientific techniques.  To overcome such defects, Warnken/Buckley argue that each EIA should ideally contain a statement outlining:

• the environmental consultant’s (appropriate) specialist qualifications

• a sta tement by the environmental consultant as to whether or not, in their view, the ‘level of study funded was appropriate to the likely significance and impacts’, and

• the comments of the independent peers (forwarded independently to the assessment agency) r eviewing each contribution to the EIA.

The model used by the GBRMPA for independent peer review was supported by Warnken/Buckley who noted that independent peer review had been done there ‘for a number of years with considerable success’.(23) The Bill does not address issues like environmental consultant’s qualifications, the level of study funding or independent peer review but it does provide an opportunity for public comments on the draft PER or the draft EIS when those assessments are required by the Bill.

Main Provisions

Clause 3 of the Bill sets out the objects of the proposed legislation. The emphasis is on the protection of those aspects of the environment that are of ‘national environmental significance’. The term ‘national environmental significance’ is not defined in the Bill. The Bill also aims to promote:

• ecologically sustainable development

• the implementation of Australia’s international environment responsibilities

• the conservation of biodiversity; and

• a cooperative approach to the pro tection and management of the environment between governments, the community and land-holders.

The second part of the clause states that the appropriate role for the Commonwealth is a focus on matters of national environmental significance and refers to a list of things, including intergovernmental cooperation, which is to be achieved via the accred itation of State and Territory processes and/or bilateral agreements.

Clause 4 binds the Crown in each of its capacities but exempts the Crown from prosecution for any offence under the proposed legislation.

Chapter 2 Part 3 Clause 12 provides that actions which will have or are likely to have a significant impact on the world heritage values of a World Heritage listed site attract a civil penalty unless they were done pursuant to an approval (see Part 9 below) or unless they fell within the description of an action that the Minister had decided was ‘not a controlled action’.  The penalty for an individual is 5,000 penalty units or $5,500 (one penalty unit currently being equivalent to $110 according to section 4AA of the Crimes Act 1914 ).

Australia has international obligations under the Convention for the Protection of the World Cultural and Natural Heritage to protect the eleven Australian properties that are already inscribed on the World Heritage List.  The properties are the Great Barrier Reef, Kakadu National Park, the Willandra Lakes Region of NSW, the Lord Howe Island Group, the Tasmanian Wilderness, Ulu r u-Kata Tju t a National Park, the Central Eastern Rainforest Reserves, the Wet Tropics of Queensland, Shark Bay (WA), Fraser Island and the Australian Fossil Mammal Sites.  These sites fall within the definition in clause 13 of a ‘declared World Heritage Property’.

Clause 14 represents a departure from the existing procedure under the World Heritage Properties Conservation Act 1983 .  Under that Act, the Governor-General can issue a Proclamation protecting a site where satisfied that it is either an existing World Heritage listed property or a property that is of the requisite standard to be submitted for potential listing and it is threatened with damage or destruction.  The Bill proposes to give this power to the Minister.  There is no provision in the Bill to make these declarations of the Minister disallowable instruments.  However, if the Legislative Instruments Bill [No. 2] 1996 is enacted there may still be Parliamentary scrutiny of the declarations.

Clause 16 deals with the protection of wetlands declared under the Ramsar convention (see list at Annex A).  A person is prevented from taking an action that will have or is likely to have a significant impact on the ecological character of a declared Ramsar wetland.  The phrase ‘ecological character’ is defined in the Bill to be the same as the Ramsar definition ( subclause 16(3) ).  Whilst the Ramsar convention doesn’t contain a definition in its text, article 3 makes it clear that ‘technological developments, pollution or other human interference’ can change the ecological character of a site.

The penalties for taking an action which significantly affects a Ramsar site without due authorisation are the same as for World Heritage sites (clause 12 above), which, for a body corporate is a maximum of 50,000 penalty units (or $55,000).

Clause 18 prohibits actions taken without the requisite approval which will have a significant impact on threatened species or communities.  The Bill prohibits the taking of an action that has, will have or is likely to have a significant impact on a critically endangered species, an endangered species, a vulnerable species, a critically endangered community, an endangered community or a species that is extinct in the wild.  There are no penalties for taking an action that will have a significant impact on a listed vulnerable ecological community.  The civil penalties for those matters that are covered are the same as for World Heritage sites and Ramsar sites above.

Clause 20 prohibits actions taken without the requisite approval that have, will have or are likely to have a significant impact on a listed migratory species.  The civil penalties are the same as for World Heritage sites and Ramsar sites above.  Clause 209 prescribes what will constitute a listed migratory species and these are compiled by the Minister, gazetted and are also disallowable instruments under section 46A of the Acts Interpretation Act 1901. Subclause 209(3) provides that the list can only include native species listed under a Gazetted international agreement, species listed under the Bonn Convention (whose range includes Australia), species listed under the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment and those species listed under the Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment.

Clauses 16, 19 and 20 all contain a provision which allows actions which would otherwise be prohibited (with respect to a Ramsar site, a threatened species/community, or a listed migratory species) to go ahead if they are allowed under a bilateral agreement (see discussion under Part 4 below) or a conservation agreement (see discussion under Part 9 below).

Chapter 2 Part 3: Division 1 Subdivision E requires approvals for constitutional corporations, the Commonwealth or Commonwealth agencies to take nuclear actions, which are defined widely in clause 22 .  For example, modifying a nuclear installation is a nuclear action for the purposes of the Bill. The proposed definition of nuclear installation specifically includes:

  1. a nuclear fuel fabrication plant (althou gh Australia currently does not make nuclear fuel)
  2. a nuclear reactor (although Australia has no nuclear reactor that generates electricity)
  3. a research reactor
  4. a nuclear power plant (although Australia has none)
  5. a nuclear fuel storage facility
  6. an enrichment plant, (although Australia has none); and
  7. a reprocessing facility (although Australia has none).

This proposed definition is substantially the same as the one used by the International Atomic Energy Agency.(24) Nevertheless, by drafting the Bill in this w ay, if Australia did build any of those facilities, they would be covered by the Bill without further amendments being required.

Subdivision F Clause 23 similarly protects the marine environment in Commonwealth marine areas and the immediately adjacent waters by prohibiting the taking of an unauthorised action that has, will have or is likely to have, a significant impact on the Commonwealth marine area.  A Commonwealth marine area is defined to include the waters of Australia’s declared EEZ (exclusive economic zone) which extend 200nm out from the ‘baselines’(25) on Australia’s coast line. 

Chapter 2 Part 3 Division 2 prohibits the taking of an action on Commonwealth land (or on land outside that will significantly affect a Commonwealth area) that is likely to have a significant impact on the environment unless:

• the action is being taken under a Regional Forest Agreement or Conservation Agreement

• the action is one declared by the Minister to be exempt from this portion of the Bill.

Clause 27 makes it clear that Commonwealth Marine areas are not included in the definition of Commonwealth land.

Clause 28 requires an approval for actions of the Commonwealth or its agencies which will have a significant impact on the environment, unless those actions are otherwise exempted in the Bill (eg in a bilateral agreement, a conservation agreement or in a class of actions declared by the Minister to be exempt).

Chapter 2 Part 4 Division 1 contains some of the exemptions in the Bill to the general prohibition against the taking of actions which are likely to have a significant impact on the environment. Where a bilateral agreement is in force which covers the action taken by a State or self-governing Territory an approval under Part 9 is not required ( clause 29 ). 

Simil arly, an approval under Part 9 is not required if the Minister has already made a declaration that the proposed action falls within a class of actions which do not require approvals.  Clause 33 allows the Minister to ‘delegate’ to the Commonwealth or a Commonwealth Agency the power to authorise actions in a specified class as long as the Minister is satisfied that the decision maker will consider the impacts the action has, will have or is likely to have on the matter protected.  A list of which matters are protected appears in clause 34 Clause 33 has been expressly criticised by the Environmental Defender’s Office:

[Clause 33 will]…allow the Environment Minister to side-step the Bill’s approval mechanisms by effectively allowing him or her to delegate the Department of Environment’s approval functions to other Commonwealth Departments - such as, say, the Department of Primary Industries and Energy…[this can be done] by way of declaration, without any public consultation.  Worse, the Bill does not provide for any guaranteed environmental safeguards or any public consultation in the approval processes which must be followed by those other Departments.(26)

Clause 37 provides that actions permitted under a conservation agreement do not require approval under Part 9.  Conservation agreements are discussed below at page 20.

Chapter 2 Part 4 Division 4 extends an exemption from the need for Part 9 approval to activities done in an area covered by a regional forest agreement (RFA).  If an RFA is in the process of being negotiated, this is sufficient, under clause 39 for a Part 9 approval not to be required.  This is another portion of the Bill which has drawn criticism from the Environmental Defender’s Office:

These agreements [RFAs] have been and are being negotiated without minimum standards for environmental impact assessment or public participation.  They cover a substantial part of Australia’s forests, which in turn provide habitat for a substantial part of Australia’s biodiversity.  It is completely unacceptable that Australia’s “Biodiversity Conservation” Bill does not apply to these forests.(27)

The RFAs drafted to date do not have a period of review contain ed within them.  So one consequence of this portion of the Bill is that the Commonwealth will not be able to revise its decision and intervene in an RFA region to prevent a particular activity taking place, without leaving itself open to paying compensation.  Given that scientific knowledge nominally ‘doubles’ every ten years or so, it may be legislatively difficult to implement assessment procedures which keep pace with the latest scientific thinking.

Chapter 2 Part 4 Division 5 exempts certain actions taken in the Great Barrier Reef Marine Park, in accordance with approvals under the management regime for the Park, from the need for an approval under Part 9.

Bilateral Agreements

Chapter 3 Part 5 Division 1 deals with the use of Bilateral agreements between the Commonwealth and a State or a self-governing Territory.  Clause 44 lists the protection of the environment and the promotion of conservation and ecologically sustainable use of natural resources as two of the objects of the bilateral agreements.  Nevertheless,  the Bill does not provide any minimum environmental standards or environmental assessments for bilateral agreements.  In fact, paragraph 45(2)(a) notes that a bilateral agreement may only provide for one or more of the objects found in clause 44 .   Since one of these is the minimisation of duplication between the Commonwealth and State or Territory processes in the environmental assessment and approval process by accreditation of State or Territory processes, it is not clear to what extent environmental safeguards will apply.  For example, the existing State law in some jurisdictions has been strongly criticised as being inadequate to protect the environment.

There is no provision for public consultation or public input in the process of accrediting State regimes via a bilateral agreement.  Therefore, potentially, this could operate to exempt areas from the operation of the Act.  This portion of the Bill has been criticised as:

• containing almost no environmental safeguards

• providing no details about public participation

• giving the Minister an enormous discretion (particularly if the regulations do not prescribe any or many criteria for the Minister to meet under clause 50 ); and

• not insisting on best practice environmental criteria to be a condition of accreditation.(28)

Clause 48 makes it discretionary for bilateral agreements to contain provisions for ‘auditing, monitoring and reporting on the operation and effectiveness of all or part of the agreement’.  The Bill sets a five year maximum for the duration of a bilateral agreement ( clause 65 ) and provides that the Commonwealth must review the agreement and report the outcome of the review to the relevant State or Territory Minister, as well as publish it, before the 5 years has elapsed.  The Minister can only enter a bilateral agreement if he or she is satisfied that the agreement accords with the objects of the Act and meets any requirements prescribed by the regulations ( clause 50 ).  The efficacy of this will depend very much on the requirements imposed on the Minister by the regulations.

Subdivision B imposes tighter restrictions on bilateral agreements that have provisions which relate to World Heritage properties, declared Ramsar wetlands, migratory species, nuclear actions, threatened species and threatened ecological communities and certain other prescribed matters ( clauses 51-56 ).  For example, in relation to World Heritage properties, the Minister must be satisfied that the bilateral agreement is not inconsistent with Australia’s international obligations under the World Heritage Convention and that the agreement will promote the management of the property in accordance with Australian World Heritage management principles.  The World Heritage Convention obliges Australia to have a Management plan for each listed property.

Chapter 3 Part 5 Division 3 determines in what circumstances a bilateral agreement may be suspended or ended.  Any person can bring a contravention of a bilateral agreement to the Minister’s attention although the Minister can ignore vexatious, frivolous or unsupported complaints ( clause 57 ).  If the Minister believes that the State or Territory that is a party to the bilateral agreement has either not complied with it or has not given effect to it in a way that upholds the objects of the Act, he or she must first consult with the relevant State or Territory Minister.  If that consultation does not satisfy the Commonwealth Environment Minister, he or she may then give notice under clause 59 that the bilateral agreement is to be suspended or cancelled.  A minimum of 10 business days notice is required.

The Bill also provides for the emergency suspension of a bilateral agreement if the Minister is satisfied that non-compliance by the State or Territory with the agreement is having or is likely to have a significant impact on any matter protected by Part 3 ( clause 60 ).

Environmental Assessments and Approvals

Chapter 4 Part 6 contains the environmental assessments and approvals regimes imposed by the Bill.  Clause 68 requires the person proposing to take a controlled action to refer the proposal to the Minister (alternatively a State or Territory government or agency, or a Commonwealth agency may refer the proposal to the Minister or the Minister may request such a referral).

Clause 74 obliges the Environment Minister to inform any other Minister with administrative responsibilities relating to the proposal and invite them to provide information as to whether or not the proposal is a controlled action.

The first thing the Environment Minister must decide ( clause 75 ) is whether the proposed action is a controlled action for the purposes of the Bill.   If the action is a controlled action then Part 8 applies.   An ‘action’ is defined in clause 523 to include a (or an alteration of a) project, development, undertaking, activity or a series of activities.  ‘Actions’ that were lawful prior to the commencement of the Act are not caught by the definition unless they are enlarged, expanded or if they amount to an intensification of use.  Clause 524 itemises a list of things that are not to be regarded as actions for the purposes of the proposed Act.  These include decisions of the Commonwealth or of a Commonwealth agency.  Sub-clause 524(3) limits this even further by making it clear that an action does not include a Commonwealth or Commonwealth agency authorisation under the Customs Act 1901 , the Export Control Act 1982 , the Export Finance and Insurance Corporation Act 1991, the Fisheries Management Act 1991, the Foreign Acquisitions and Takeovers Act 1975, the Petroleum (Submerged Lands) Act 1967 , the Quarantine Act 1908, or the Trade Practices Act 1974 .

Chapter 4 Part 8 requires the Minister to decide what relevant impacts the action has, will have or is likely to have on the matters listed in Part 3 .  This process is circumvented if the controlled action is covered by a bilateral agreement ( clause 83 ) or a declaration ( clause 84 ).

If the Minister decides that the proposed controlled action will have an impact on a Part 3 matter then he or she must choose which method of assessing the impact is most effective.  Clause 86 requires the designated proponent of an action to give the Minister the necessary preliminary information.  Clause 87 then obliges him or her to decide whether:

• an assessment by a specially accredited process

• an assessment on preliminary documentation ( Division 4 )

• an assessment by public environment report  ( Division 5 )

• an assessment by environmental impact statement ( Division 6 ); or

• an assessment by inquiry

is appropriate.  There is also an obligation on the Minister to consult with the relevant State or Territory.

Subclause 87(3) sets out what the Minister must take into account.  The preliminary information (provided by the proponent) and other relevant information (eg any relevant reports) are taken into account as well as matters prescribed by the regulations. However, there is no provision which requires the Minister to assess the likely impact on the environment or the likely impact on a threatened species or ecological community.  One could argue that if the proposal related to a habitat that housed a critically endangered community then an assessment on the preliminary documentation would not be reasonable.  However, without something in the Bill to direct the Minister specifically to such environmental considerations it may well be that such an assessment seems suitable. 

Whatever the Minister’s decision, it must be published within 10 business days ( clause 91 ).

Division 4 Clause 93 allows the Minister to require a designated proponent to publish certain details about the proposal and seek public comments on the proposal.  However, if the Minister chooses not to do this, the Secretary must still prepare the report just on the preliminary documentation solely.

Chapter 4 Part 8 Division 5 deals with Public Environment Reports.   The Bill leaves it open to the Minister to issue written guidelines that will dictate the content of PERs.  Subclause 97(2) obliges the Minister to ensure that the guidelines will secure a draft PER that gives the Minister enough information to ‘make an informed decision’ as to whether or not to approve the proposed action.

Chapter 4 Part 8 Division 6 covers situations where an environmental impact statement is required.  When an EIS is required, clause 102 directs the Minister to prepare written guidelines for the draft EIS to comply with. The aim of the Ministerial guidelines is to obtain an EIS which contains sufficient information about the proposed action and its likely impacts on the environment so as to enable the Minister to make an informed decision whether or not to issue an approval under Part 9.  Once the draft is done, clause 103 requires it to be published and public comments invited for a period of at least 20 business days.  Clause 104 then obliges the designated proponent to finalise the EIS by taking into account the comments received and furnish the Minister with a copy of the final EIS.  There are provisions in clause 105 which allow matters which are commercial-in-confidence, or which relate to national security to be omitted from the final copies of the report that are otherwise available to any person upon request.

Chapter 4 Part 8 Division 7 covers the process for establishing a public inquiry into the likely impacts of a proposed action.  Clause 107 obliges the Minister to appoint one or more persons as commissioners (and if more than one then one must be nominated as presiding over the others) and produce written terms of reference.  The Commission of inquiry is able to determine its own procedures to be followed and is not bound by the rules of evidence ( clause 109 ) but the hearings must be public hearings and the submissions to the Commission are generally to be public unless the Commission believes that it is desirable in the public interest for them not to be made publicly available ( clause 110 ).  The Commission has the power to summons witnesses and there is a penalty of 6 months imprisonment or 30 penalty units, or both ($3,300) for a person failing to comply with the summons ( clause 111 ).  The same penalty applies to a person who fails to take an oath or affirmation, who fails or refuses to answer a question put to them or to produce a document in their possession pursuant to a summons ( clause 112 ).  However, the witness is protected by subclause 112(5) which prevents any answers given to the commission (or documents produced etc) from being admissible in criminal proceedings against that person other than proceedings under clause 491 for providing false information to an officer.  Commissioners, or persons authorised by them, have the power to inspect land or other premises with the owner or occupier’s consent or alternatively apply to a magistrate for a warrant to inspect ( clauses 114-117 ).

During the exercise of their powers, Commissioners will enjoy the same immunity and protection that High Court judges do ( clause 120 ) and unless appointed under the Public Service Act 1922 the level of remuneration must be determined by the Remuneration Tribunal ( clause 124 ).  Commissioners can have their appointment terminated for proven misbehaviour or physical or mental incapacity or if they become bankrupt or fail to meet the disclosure requirements (regarding their pecuniary interests and potential conflicts of interest) of clause 128 ( clause 127 ).

Chapter 4 Part 9 Division 1 is the critical portion of the Bill which deals with Ministerial approval of actions.

Clause 130 obliges the Minister to decide whether or not an assessment report is required (in 30 business days or longer if authorised by the Minister) or a public inquiry (in 40 business days or longer).  An assessment report is defined in subclause 130(2) and includes reports pursuant to bilateral agreements, accredited processes and other specified matters.

The Minister must invite comments from other Ministers (including comments on economic and social matters that will be affected by the proposal under consideration) ( clause 131 ) or request further information from the person proposing the action, the designated proponent or the Commission of Inquiry whichever is applicable ( clause 132 ).

Comparison with Existing Regime

This represents a radical departure from the current regime regarding the Environment Protection (Impact of Proposals) Act 1974 .  Under that Act, the action Minister is required, when making any decision, to consider whether there is likely to be a significant effect on the environment.  If the answer is affirmative then the action Minister must refer the matter to the Minister for the Environment, who then assesses what level (if any) of environmental assessment (whether an EIS or PER) is required.  This has meant that to date when the Commonwealth has considered whether to approve a proposed foreign investment or whether to grant an export licence etc the impact on the environment has been considered.

The Bill removes all of these ‘triggers’ and replaces them with triggers that catch actions which are likely to have a significant impact on:

• The Commonwealth marine area

• World heritage properties

• Ramsar wetlands of international importance

• Nationally threatened species and ecological communities, and

• Internationally protected migratory species.(29)

These triggers could be described as being confined to either a nominated site or to a particular issue rather than being general environmental triggers.

Approvals under the Bill

Once the Minister has all the necessary information,  he or she may approve the action with or without conditions or not approve the action ( clauses 133-4 ).  The range of conditions that the Minister may attach to the approval include things like requiring insurance to be held, submitting to an environmental audit from time to time or repairing damage done whilst taking the action.  Section 99 of the Constitution states:

The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

The Bill implements this by ensuring that in attaching conditions t o the approval of an action, the Minister does not give a preference to one State or a part thereof ( clause 135 ).  Clause 142 imposes a penalty of 1000 penalty units for an individual or 10,000 penalty units for a body corporate for breaching a condition.

The Bill also obliges the Minister to consider economic and social matters in addition to the environmental matter set out in Part 3 when making his or her decision.  Subclause 136(2) is important because it obliges the Minister to take into account, for example, the principles of ecologically sustainable development when making his or her decision.  These principles are spelled out in subclause 136(3) .  The core objectives are noted as being the need to maintain intergenerational equity, to protect biological diversity and ‘maintain essential ecological processes and life-support systems’ and also the enhancement of ‘individual and community well-being’ by ‘following a path of economic development that safeguards the welfare of future generations’.  This expression is somewhat hard to define as what constitutes economic development that safeguards the welfare of future generations could mean a greater emphasis being placed on creating short term wealth or alternatively it could mean something else entirely. It may well be an issue for the courts to develop in the absence of any solid definition in the Bill.

In addition to the ‘core objectives’ there are a number of other matter listed in subclause 136(3) which  are described as ‘guiding principles’.  Among these is the precautionary principle and a number of economic considerations.

Therefore, the Minister must consider the assessment report (or equivalent), the core objectives, the guiding principles and comments given by another Minister in answer to a request by the Environment Minister.  In addition, the Minister may consider the person’s history in relation to environmental matters but that is all.  Clauses 137-141 impose other requirements on the Minister if the decision relates to a World Heritage or Ramsar site or a threatened species etc.

Chapter 4 Part 9 Division 3 gives the Minister the power to vary (including add to) the conditions attached to an approval or to suspend or revoke the approval on certain grounds ( clauses 143-145 ).

Chapter 4 Part 10 Division 1 gives the Minister the power to agree on a strategic assessment.  This is another portion of the Bill which operates to exempt certain matters from the approval process in Part 9.  This was of concern to the Environmental Defender’s Office:

Cl. 146 allows the Minister to enter into an agreement with any person concerning the assessment of actions allowed under any ‘policy, plan or program’.  Where the Minister does so, he or she can exempt the person from the assessment and approval requirements of Parts 8 and 9 of the Bill.  The Minister’s decision to enter into an agreement can therefore, in addition to resulting in a special assessment process, be a de facto approval for the actions. 

Strategic assessment in this form could be an extremely far-reaching tool for exemption.  The terms  ‘policy, plan or program’ are not defined.  They could include any privately developed  policy, plan or program relating to any matter.  Worse, there are almost no environmental safeguards built into the system citation.(30)

The Environmental Defender’s Office also pointed out that in deciding to enter into an agree ment under Part 10 the Minister was not subject to public consultation on the report, no environmental standards were specified in the Bill for the report and there was no mechanism for review once an agreement was reached (theoretically putting the actions beyond scrutiny for many years).(31)

The Australian Fisheries Management Authority (AFMA) is the Commonwealth statutory authority responsible for the management and sustainable use of Commonwealth fishery resources.  Clause 147 obliges the AFMA to make strategic assessment agreements with the Minister (described above) for the  assessment of fisheries currently managed under the Fisheries Management Act 1991 .  This process must be done for all fisheries within a 5 year period of the date of commencement of the Bill.

Clause 150 requires the assessment of fisheries that are currently managed under an agreement between the Commonwealth and one or more States under sections 71 or 72 of the Fisheries Management Act 1991 which allow the agreement to dictate whether State or Commonwealth law applies to the given fisheries area.  Clause 151 makes similar provision for areas managed under the Torres Strait Fisheries Act 1984.   If the Minister responsible for the Fisheries Management Act 1991 agrees with the Environment Minister that the impact on a fishery managed under that Act is actually likely to have a more significant impact on the environment than previously reported, a further assessment can be done under clause 152 .

Chapter 4 Part 11 Division 4 requires a Commonwealth agency or employee considering approving:

• foreign aid for a project anywhere in the world that is likely to have a significant impact on the environment

• the management of aircraft operations in airspace

• the adoption or implementation of a major development plan for an airport, or

• another action prescribed by the regulations

to inform the Environment Minister of the proposed action and consider that Minister's advice before issuing the approval.  The Minister can advise whether or not the agency or employee should give the approval and if so, what conditions they should attach or on any other matter relevant to the protection of the environment ( clause 163 ).

Chapter 5 Part 12 Division 1 is the portion of the Bill which deals with the identification and monitoring of biodiversity.  Article 7 of the Biodiversity Convention(32)obliges States to identify those components of biological diversity that are important for its conservation and sustainable use and monitor their use as well as identify processes that are likely to have a significant adverse impact on the conservation and sustainable use of biological diversity.  The Bill implements Article 7.  Clause 171 allows the Minister to give financial or other assistance to anyone who is doing work relevant to the identification or monitoring of components of biodiversity.  In relation to Commonwealth land, the Minister is obliged by clause 172 to have inventories of components of biodiversity made within 5 years of the date of commencement or from the date of the Commonwealth’s acquisition of the land whichever is the later.

In relation to marine areas, clause 173 requires an inventory of all dolphin and whale species together with listed threatened species or ecological communities, listed migratory species and listed marine species to be prepared.  This is to be done within 10 years of the date of commencement or from the date that the area became a Commonwealth marine area whichever is the later.

The Bill obliges the Minister to ensure that these inventories are updated on a continuing basis ( clause 174 ).

Chapter 5 Part 12 Division 2 deals with bioregional plans.  Nothing in the Bill requires the Minister to prepare a bioregional plan for a particular Commonwealth area, however, if one is done, it can include provisions about biodiversity, economic and social values, mechanisms for community involvement and monitoring and review of the plan ( clause 176 ).

Chapter 5 Part 13 Division 1 provides that the Minister will list species, by instrument published in the Gazette , that are extinct, extinct in the wild, critically endangered, endangered vulnerable, or conservation dependent.

Subclause 184(3) is equivalent to the existing provision in the Endangered Species Protection Act 1992 (subsection 18(3)) and allows the Minister to amend the lists of threatened species etc by way of a disallowable instrument.  Although the Minister may not delete a species or ecological community from a list until after he or she has considered advice from the Scientific Committee and unless satisfied that the species or community is no longer eligible to be included on the list ( clauses 187-89 ).  The listing process has itself been criticised partly because it requires a positive act by scientific experts to identify a species(33) prior to that species being placed on the list.  This ignores the fact that one of the great problems with biodiversity issues is that not all species have been identified let alone studied to see whether they are vulnerable.  There can also be a problem with the general public not easily being able to identify or distinguish a given species from the scientific name promulgated on the list.(34)

Whales and Other Cetaceans

Chapter 5 Part 13 Division 3   The Whale Protection Act 1980 is one of the Acts to be replaced by the Bill.  This division of the Bill incorporates the protections currently existing in the Whale Protection Act 1980

Clause 225 establishes the EEZ and certain other coastal waters (but not those currently under the jurisdiction of a State or Territory) as the Australian Whale Sanctuary.

Clause 229 makes it a strict liability offence, punishable by 1000 penalty units or 2 years imprisonment, or both to kill, injure, take, trade, keep, move or interfere with a cetacean in the Sanctuary.  However, clause 231 lists certain exemptions including if the person had a permit authorising them to take the action which resulted in the ‘offence’, if the action was taken in an emergency and was reasonably necessary to avoid a serious threat to human life or property, if it was the result of an unavoidable accident etc.  Clauses 233-234 extend the offence to possessing or treating unlawfully imported cetaceans.  Clause 165 deals with the mechanism for assessing applications for permits relating to whales, dolphins and porpoises.

Clause 236 exerts jurisdiction over foreign whaling vessels by preventing them from coming into Australian ports (unless there is an emergency or unless they have the written permission of the Minister etc).

Subdivision F introduces a permit system to allow a permit holder to take certain actions regarding cetaceans that would otherwise contravene the Bill.  Clause 238 prevents the Minister from issuing a permit unless he or she is satisfied that the proposed action will either contribute significantly to the conservation of cetaceans (an example being the killing of a specimen for the purposes of scientific research that will promote understanding and the development of conservation measures) or will interfere with the cetaceans in an incidental way.  An example of this could be the conducting of sonic tests underwater which may help oceanographers in their work but, as an incidental effect, may interfere with the communication of cetaceans etc.

A permit is also required for whale-watching and the regulations will prescribe how that activity must be conducted.

Clause 239 allows the Minister to attach conditions to a permit (including varying them and/or revoking them) and it is an offence under clause 240 for a permit holder to fail to comply with those conditions.

Division 4 Subdivision A Clause 248 requires the Minister to compile and publish a list of certain nominated marine species within 30 days of the commencement of the Act.   The clause nominates species like sea snakes, sea kraits, seals and sea lions, crocodiles, dugongs, turtles, seahorses and pipe fish and seabirds.  The Minister may amend the list but can only add to the list if he or she is satisfied that it is necessary to ensure the long-term survival of the species.  Clause 251 requires the Minister to take into account advice from the Scientific Committee before adding to or deleting from the list.

Subdivision B introduces a separate permit system for species other than cetaceans.  As with the permits described in subdivision F above, the killing, injuring or taking etc of a marine species is prohibited unless done pursuant to a permit.

Recovery and Threat Abatement Plans

Chapter 5 Part 13 Division 5 Subdivision A deals with the making and implementing of recovery plans and threat abatement plans.  Once a threatened species or threatened ecological community has been listed, the Minister must make a recovery plan and a threat abatement plan ( clause 267 ).  The Bill obliges the Minister to consult with the relevant State or Territory to make joint plans unless the species or ecological community is only found in a Commonwealth area.  Clause 268 prohibits a Commonwealth agency from taking any action which contravenes a recovery plan or threat abatement plan but does not specify any consequence of such contravention.

Clause 270 sets out what a recovery plan must include.  The identification of necessary habitat, populations of the relevant species or community are of course included as well as a list of factors that will benefit the survival of them. Paragraph 270(2)(g) also requires that the plan identify ‘interests that will be affected’ by its implementation.

The content of threat abatement plans is different to recovery plans and clause 271 requires that they include, among other things, the objectives to be achieved, the criteria by which such achievement is measured, the actions needed to achieve the objectives and the estimated duration and cost of the process. 

Where a plan calls for the eradication of a non-native species clause 272 requires the Commonwealth to offer stock of that species to its ‘native’ country (if it is a threatened species there) before taking steps towards eradication of the species within Australia.

Clause 273 sets differing timeframes for the preparation of a recovery play or threat abatement plan depending on whether the relevant species or community is critically endangered, endangered or vulnerable.  Advice from the Scientific Committee must be obtained and considered by the Minister when finalising a recovery or a threat abatement plan ( clause 274 ) and also comments received from the public ( clause 276 ).  The Bill makes provision for the Minister to review plans at least every 5 years and gives the Minister the power to vary a plan after certain requirements are met.

Subdivision B allows the Minister to make wildlife conservation plans for listed migratory, marine species or cetaceans found in the EEZ.  The provisions of clauses 285-298 are broadly similar to those for the recovery or threat abatement plans described above.  Once made a Commonwealth agency cannot do something which would contravene the plan, there are provisions for review, provisions requiring advice from the Scientific Committee and comments from the public to be taken into account.  The Commonwealth may also provide assistance (including financial assistance) to a person or a State or self-governing Territory to implement a recovery, threat abatement or wildlife conservation plan.

Chapter 5 Part 13 Division 6 deals with the control of access to biological resources and clause 301 provides that the regulations will govern such access.

Clause 302 allows the Minister to give financial aid to other countries or to organisations to help with the recovery or conservation in those regions of a species that is listed in one of the international agreements to which Australia is a party.

Chapter 5 Part 13 Division 8 allows for the making of regulations for the conservation of biodiversity in Commonwealth areas.  It is difficult to assess how effective these will be without seeing them in detail.  However, it is probably reasonable to say that without taking a holistic approach to biodiversity conservation (ie taking action Australia wide and not just in Commonwealth areas) it will be difficult to guarantee biodiversity protection. 

Conservation Agreements

Chapter 5 Part 14 sets out how conservation agreements may be made between the Commonwealth and private landowners (whether individuals or corporations).  There is no provision for any negotiations for such agreements to be made public.  Whilst clause 466 provides that these are reviewable every 5 years, the effect of a conservation agreement is to exempt certain actions from the proposed Act.

Clause 305 prevents the Minister from entering into a conservation agreement unless he or she is satisfied that it will ‘result in a net benefit to the conservation of biodiversity’.  However, nothing in the Bill assists the Minister in assessing whether there will be a net benefit.  There is no requirement for advice from the Scientific Committee to be obtained or considered.  There is no requirement for any kind of environmental assessment to be done, so it would seem that the Minister may be making that decision from a considerably disadvantaged position.  Conservation agreements are not subject to any public scrutiny either and can be negotiated confidentially.  An additional consideration is that from a scientific viewpoint, it would be extremely difficult to quantify whether some action would result in a net benefit to biodiversity conservation.  This is because, when assessing biodiversity, there are a very large number of variables that can all impact upon each other making the actual outcome very hard to reliably predict.

The Environmental Defender’s Office notes that:

Conservation agreements can be a powerful tool to encourage good environmental outcomes on private land.  However, the Bill’s provisions…contain a number of significant flaws….[The] Bill provides that conservation agreements can contain provisions exempting the person who has signed the agreement from the need for Commonwealth environmental approval under Part 9 of the Bill (cl. 306(f)).  This is undesirable, and unnecessary.  Encouraging biodiversity conservation is one thing.  However, it is inappropriate to provide people with the incentive of an exemption from environmental laws.  The incentive traditionally used - financial and technical assistance from Government - would be quite adequate if it were properly resourced and encouraged.(35)

Clause 307 asserts that conservation agreements will be legally binding, meaning that any breach of them by the Commonwealth within the 5 year period could leave the Commonwealth potentially open to a claim for compensation.

Chapter 5 Part 15 Division 1 contains the new regime for the management of World Heritage properties.  Unlike the existing World Heritage Properties Conservation Act 1983 the new provisions require the Minister to make every effort to reach agreement with the relevant State or Territory before submitting a property to the World Heritage Committee for possible inscription on the World Heritage List.  Clause 316 implements the provisions of the World Heritage Convention which oblige a country to make a written management plan for a World Heritage Listed property.  Clause 319 requires the Minister to review that plan at least every 5 years.

Chapter 5 Part 15 Division 2 contains a similar regime for the Ramsar listed Wetlands of International Importance (see Annex A for a full list).  As with the potential World Heritage sites, the Commonwealth is required to seek the agreement and co-operation of the relevant State or Territory before submitting any wetlands for possible inclusion on the Ramsar list and for developing a joint management plan for those sites on State or Territory land.  The Minister is obliged to ensure that the principles kept under the Ramsar Convention are adhered to under the Bill.

Chapter 5 Part 15 Division 3 allows the Commonwealth to manage biosphere reserves designated under an international agreement in accordance with the principles set out in the Statutory Framework of the World Network of Biosphere Reserves.

Commonwealth Reserves

Chapter 5 Part 15 Division 4 permits the Governor-General by Proclamation to declare certain areas of its land or sea to be reserves.  Prior to reaching this decision, the Minister is required to consider a report of the Secretary of the Department, together with any public comments received on the proposal to create a reserve ( clause 351 ).  Clause 346   requires the reserve to be named and for the purposes for which it is declared to be enunciated.  In addition, the reserve must be assigned to one of the following categories:

strict nature reserve   habitat/species management area

wilderness area   protected landscape/seascape

national park    managed resource protected area

natural monument

The Bill contains a description of the characteristics of each above category of reserve ( clause 347 ).  Kakadu, Uluru and the Jervis Bay Territory are all excluded from these definitions as management plans are already in existence for those regions.

The Bill then prohibits the taking of certain actions (like excavation, building, logging etc) unless such action is authorised by the management plan for that particular Commonwealth reserve ( clause 354 ).  If there is no management plan then certain actions are specifically authorised by the Bill, such as conducting controlled scientific research and preserving or protecting the reserve or its biodiversity ( clause 354 ).  Clause 355 allows mining operations within Commonwealth reserves only if the Governor-General has approved them and they are carried out in accordance with the reserve’s management plan.  Although this provision does not apply to existing rights at the time of commencement of the Bill ( clause 359 ) and clause 387 expressly prohibits any mining in Kakadu National Park.  In relation to the Jabiluka uranium mine, it should be noted that the present mine site is situated physically within the outer boundaries of the park but in an area excised from the declared park.  Therefore, this provision will have no impact on the proposed Jabiluka mine.

The Bill provides for differing levels of protection for different classes of Commonwealth reserve.  Clause 360 prohibits certain activities in wilderness areas.  For example, only the Secretary (or agent) may use a vehicle, aircraft or vessel in a wilderness areas ( paragraph 360(4)(f) ).  Vessel is not defined in the Bill but a hovercraft is included in the definition of a vehicle.

Subdivisions D and E deal with the compliance with and the approval of management plans.  Clause 362 obliges the Secretary to give effect to a management plan where one is in existence.  If no management plan exists then clause 357 applies the relevant IUCN reserve management principles (if there are any).  In the event of there being a dispute about the Secretary’s implementation of the management plan in a jointly managed reserve, the indigenous people are able to disagree.  A jointly managed reserve is one which includes indigenous people’s land held under lease by the Commonwealth and where a Board has been established under Subdivision F below. Clause 363 then obliges the Secretary to inform the Minister of the indigenous people’s disagreement and the Minister must appoint a suitable person to inquire into the matter and report back to him or her.  The Bill also provides a dispute resolving mechanism in clause 369 in the event of a disagreement between the Secretary and the Board with respect to a management plan.  That clause provides that the Minister must appoint an arbitrator if the dispute cannot be settled.

Approved management plans are disallowable instruments under clause 371 and therefore are subject to Parliamentary scrutiny.

Subdivision F establishes the functions and composition of a Board for a Commonwealth reserve that is wholly or partly on indigenous people’s land if there is agreement between the traditional owners and the Minister that there should be a Board.  The functions include the preparation of, implementation of and monitoring of management plans as well as a role for advising the Minister on all aspects of the future development of the particular reserve ( clause 376 ).  The composition of the Board, if it relates to a reserve that is wholly or partly on indigenous people’s land must contain a majority of indigenous persons ( subclause 377(4) ).  The qualifications of the Board are to be determined by the Minister and their remuneration level determined by the Remuneration Tribunal.

Clause 390 establishes special rules for the preparation of management plans within the Kakadu region, Uluru region or the Jervis Bay Territory.

Where there is a jointly managed reserve, there seems to be input from affected indigenous persons, provided for in the Bill.  However, not all reserves are jointly managed and where the Commonwealth is the sole manager of the reserve the Bill does not seem to provide an input for any indigenous persons who may be living in the region (even though the Bill is expressed so as not to affect any native title rights under the Native Title Act 1993 ).   The issue of the joint management of parks and reserves is comprehensively discussed in a Parliamentary Library Research Paper by Dr David Lawrence.(36)

The Application of the Precautionary Principle

Chapter 6 Part 16 requires the Minister to consider the precautionary principle when making certain decisions under the proposed legislation.  The precautionary principle is recognised in some international law instruments(37) and was also incorporated in the 1992 Intergovernmental Agreement on the Environment (IGAE) between the Commonwealth and the State and Territory governments.  The precautionary principle states that 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. (38)

Subclause 391 lists those decisions in which the Minister must consider the precautionary principle.  There is no requirement in the Bill for the Minister to consider the other principles of ecologically sustainable development.  So, for example, there is no requirement for the Minister to consider the rights of future generations to ‘inherit’ an environment that meets their economic, social, recreational and aesthetic needs on a sustainable basis (the principle of intergenerational equity).

The application of the precautionary principle to Ministerial decision making is generally applauded by environmental groups.  However, a criticism of proposed subclause 391 in the Environmental Defender’s Office Commentary on the Bill is that:

…a number of key decisions made under the Bill are not listed in cl.391.  For example, although the clause applies to the decision as to whether approval is required for an action (cl. 75), it does not apply to any subsequent reconsideration of that decision (cls. 78, 79).  It also does not apply to the important decision as to the level of assessment to be required.  The clause ought to apply to all decisions made by the Minister.(39)

Chapter 6 Part 17 Division 1 contains the enforcement provisions of the Bill.  The Bill proposes that the Minister may appoint a wide range of people (including members of the police force and Commonwealth, State or territory public servants) to be wardens or rangers to enforce the proposed legislation.  Clause 400 allows regulations to be made which specify the functions, powers and duties to be conferred on wardens, rangers and inspectors.  Clause 396 allows the Minister to appoint ‘a person’ to be an inspector.  This is comparable to the provisions of the Great Barrier Reef Marine Park Act 1975 which allow any person to be appointed as an inspector under that Act and gives them powers that include the power to detain and search aircraft.

The Bill does not provide details of what qualifications or training the wardens, rangers or inspectors will be required to have. Only wardens and inspectors are defined to be ‘authorised officers’ for the purposes of clause 406 .  That clause sets out the powers of an authorised officer to board a vehicle, vessel, aircraft or platform and search it, take samples or extracts from material found there and make copies of documents found there.

Chapter 6 Part 17 Division 3 gives authorised officers monitoring powers to check that a particular occupier of a premise is continuing to comply with the proposed legislation. Chapter 6 Part 17 Division 4 sets out the search powers available to the authorised officer.  These powers are broadly similar to other search powers in Commonwealth legislation and provide that a search warrant may be issued by a magistrate if they are satisfied by information given to them on oath that there are reasonable grounds for suspecting that evidential material is, or will be, on the premises.  The occupier of the premises is entitled to be shown a copy of the search warrant, to be present at the search and to receive compensation for any damage done to the premises during the search.  Strip or cavity searches of the person cannot be authorised by a warrant ( clause 427 ). Division 8 allows goods and other baggage on a ship or aircraft travelling within Australia or between an external Territory and a place outside that Territory to be searched.

Chapter 6 Part 17 Division 5 authorises the emergency search of an aircraft, vehicle or vessel by an authorised officer to prevent evidence being destroyed.  Division 6 gives the authorised officer the power of arrest, in some circumstances, in the absence of a warrant if there are reasonable grounds for suspecting that they may have committed an offence and proceedings against them via a summons would not be effective. Division 9 provides an authorised officer with the power to ask an individual for their name and address if there are reasonable grounds for suspecting that the person has committed an offence and there is a penalty of 10 penalty units ($1100) for failing or refusing to comply with such a request.  Division 10 allows the seizure of goods by an authorised officer if they have reasonable grounds for suspecting that the goods either were involved in the commission of an offence or are evidence of the commission of an offence against the proposed act.  Seized goods can be held for 60 days  (which can be extended by a magistrate for up to 30 days per extension) or until proceedings for an offence against the proposed Act or its regulations are completed.  At the expiration of the period, the goods can either be disposed of (if no owner can be found) or returned to the owner.  If, however, the seized goods constitute a serious threat to the environment or to public health, to the existence of a particular species or other like threat, the Secretary may order the immediate disposal of the goods ( proposed clause 449 ).

Chapter 6 Part 17 Division 12 of the Bill allows the Minister to require an environmental audit to be done if the Minister has reasonable grounds for suspecting or believing that a condition of the authority has been contravened or is likely to be contravened.  This is a significant development in environmental protection as previously there was no provision for carrying out ongoing monitoring of environmental performance by way of an audit.

Chapter 6 Part 17 Division 13 allows the Minister to make conservation orders to protect listed threatened species or ecological communities on Commonwealth land.  The Bill does not provide that similar ‘conservation orders’ can be made with respect to World Heritage sites, Ramsar sites or other matters of national significance.  A conservation order can only be made if the Minister reasonably believes that it is necessary to protect a listed threatened species or a listed threatened ecological community and it may prohibit or restrict certain specified activities within some or all Commonwealth areas.  Alternatively, such an order can require certain persons to take specified action in some or all Commonwealth areas.

Subclause 464(3) obliges the Minister to have regard to the economic and social considerations relevant to ecologically sustainable development principles when deciding whether or not to make a conservation order.

Conservation orders remain in force for the time period specified within them or until otherwise revoked by the Minister ( clause 465 ).  Clause 466 requires that conservation orders be reviewed by the Minister at least every 5 years and either confirmed, varied or revoked in writing.  Varying or revoking the order is not permitted unless the Minister is satisfied that the order is no longer needed to protect the environment or the listed threatened species or ecological community.

Once made, conservation orders must be gazetted and notices sent to people known to be affected by the order.  Clause 468 allows a person affected by a conservation order (or by the decision on review of that order) to apply in writing to the Minister, within 28 days, to reconsider his or her decision.  In reconsidering the matter, the Minister must seek the Secretary’s advice and notify the applicant of the decision promptly ( clause 469 ).

Clause 470 provides a penalty of up to 500 penalty units ($55000) for the contravention of a conservation order.  There is also provision for a person to ask the Minister’s advice on whether the action they propose taking will contravene an order.  Once they have received the Minister’s advice they are entitled to rely on it as a complete defence to an accusation of contravening a conservation order.  If the person is dissatisfied with the advice, they may apply to the Administrative Appeals Tribunal for a review of the Minister’s decision ( clause 473 ).

Clause 474 allows the Secretary to provide financial or other assistance (including the provision of goods or labour) to a person to help them comply with a conservation order provided that the value of the assistance is reasonable and proportionate to the obligations imposed on that person.  Any assistance given may be offset against the compensation otherwise payable under clause 519 (see below).

Chapter 6 Part 17 Division 14 of the Bill deals with who may apply for injunctions to prevent contraventions of the proposed Act.  The class of people who may apply for an injunction is comparatively narrow.  Clause 475 provides that an individual can only apply if their own interests ‘have been, are or would be affected by the conduct or proposed conduct’ or if they have been engaged in a series of activities or research into the protection of the environment at any time in the 2 years preceding the conduct. 

One significant change that this makes is that Aboriginal persons will lose their existing statutory right(40) to be taken to be a ‘person aggrieved’ under the Administrative Decisions (Judicial Review) Act 1977 to challenge Ministerial decisions relating to the authorising of otherwise unlawful acts in relation to Aboriginal sites.

In addition, the Bill provides that injunctive relief can only be granted in the Federal Court.  This means that the challenging of a decision becomes significantly more expensive(41) and risky(42).

Other enforcement measures in the Bill include the fact that the Minister may, under clause 498 , publicise contraventions of the proposed Act or the regulations.  Clause 499 allows the Commonwealth to take such steps as are possible to mitigate or remedy environmental damage.

Clause 519 implements the constitutional requirement that the Commonwealth pay just compensation if it compulsorily acquires property.  The provision allows the Federal Court assessing the amount of compensation payable to take into account any compensation or other remedy already provided to the claimant.

Concluding Comments

Positive Aspects of the Bill

The advantages of the Bill are that it attempts to consolidate the Commonwealth environmental legislation into a single Act.  In addition, it moves to implement specific multilateral treaties to which Australia is a party (like the Ramsar Convention and the Biodiversity Convention) which previously have not been fully implemented in Australian domestic law.  For example, this is the first attempt to enshrine biodiversity protection in Commonwealth legislation.

The Bill aims to promote ecologically sustainable development and for the first time in Australia’s history applies the precautionary principle at a national level to certain decisions.

The Bill allows for conservation agreements, which may be used to prom ote the protection of biodiversity on private land.

The Business Council of Australia has indicated that the timelimits on the EIA/PER processes will provide greater certainty for business and possibly promote investment.

There are some provisions in the Bill which allow an Environmental Audit to be conducted so as to monitor the likely impact on the environment of certain actions.

The Environmental Defender’s Office argues that ‘the most positive aspect of the Bill is that it transfers the powers to trigger Commonwealth environmental assessment, and to decide whether or not to give Commonwealth approval to an action, from the relevant Commonwealth ‘action Minister’ to the Commonwealth Environment Minister’.(43)

Senator Hill has described the existing triggers as ad hoc and indirect and the Bill replaces these with a list of seven matters of national environmental significance which will act as triggers for Commonwealth involvement.

Negative Aspects of the Bill

The negative aspects of the Bill are that it foc uses on issue specific or site specific environmental matters.  Broader environmental problems like climate change and greenhouse gases, ozone depletion, air quality, soil salinity, desertification, inland water pollution by chemicals and/or sewerage, quarantine issues, water allocation issues, land degradation, land clearing and forest management are not covered in the Bill.  In relation to biodiversity, the approach of focussing on a series of sites is scientifically flawed.  Plants and animals cannot survive in genetically isolated ‘pockets’ and isolated populations are much more prone to being wiped out.

The Bill arguably contains too many exemptions to those issues that it does cover.  Bilateral agreements, conservation agreements, lists of exempted actions and reliance on State or strategic environmental assessment mechanisms may operate to undermine the operation of the Bill.  More detail is required on the way these mechanisms will be implemented before drawing a conclusion on this issue.

Many existing triggers have been lost (eg foreign investment).  In addition the public or interested groups are not able to trigger the Bill’s environmental assessment processes.

The Bill allows the Commonwealth Department of the Environment to delegate some of its approval functions to other Departments.  There are no environmental safeguards on this process and no public scrutiny.

The Bill does not apply to areas covered by a Regional Forestry Agreement and therefore the power of the Bill to conserve biodiversity is seriously weakened.  Old-growth forests are places of high biodiversity value.

The existing problems with the current regime for listing endangered or vulnerable species are repeated in this Bill.  Many species are not known to the scientific literature or are so little studied as to make it difficult to ascertain whether they are endangered or not.  Also, the Bill does not address any of the criticisms of the existing EIS process.  For example, the Bill does not provide an answer to any of the defects identified by the Warnken/ Buckley study which recommends an EIS or EIA contain:

the environmental consultant’s (appropriate) specialist qualifications

• a statement by the environmental consultant as to whether or not, in their view, the ‘level of study fund ed was appropriate to the likely significance and impacts’, and

• the comments of the independent peers (forwarded independently to the assessment agency) reviewing each contribution to the EIA.

• Annex A

WETLANDS DESIGNATED BY AUSTRALIA TO THE LIST OF WET LANDS OF INTERNATIONAL  IMPORTANCE                                                                       
                                                                                 
1. Coburg Peninsula Aboriginal Land Wildlife Sanctuary, 8 May 1974                                                                                       
2. Kakadu National Park-Stage I, 12 June 1980                                   
3. Moulting Lagoon, 16 November 1982                                                                                                       
4. Logan Lagoon Conservation Area, 16 November 1982                                                                                                             
5. Sea Elephant Conservation Area, 16 November 1982                                                                                                             
6. Pittwater-Orietton Lagoon, 16 November 1982                                                                                                                  
7. Apsley Marshes, 16 November 1982                                                                                                                             
8. East-Coast Cape Barren Island Lagoons, 16 November 1982    
9. Flood Plain Lower Ringarooma River, 16 November 1982                                                                              
10. Jocks Lagoon, 16 November 1982                                                                                                     
11. Northwestern Corner of Lake Crescent, 16 November 1982                                                                          
12. Little Waterhouse Lake, 16 November 1982                                                                                           
13. Corner Inlet, 15 December 1982                                                                                                     
14. Barmah Forest, 15 December 1982                                                                                                    
15. Gunbower Forest, 15 December 1982                                                                                                  
16. Hattah-Kulkyne Lakes, 15 December 1982                                                                                             
17. Kerang Wetlands, 15 December 1982                               
18. Port Phillip Bay (Western Shoreline), and Bellarine Peninsula, 15 December    
     1982                                                                                                                                                             
19. Western Port, 15 December 1982                                                                                                                               
20. Western District Lakes, 15 December 1982                                                                                                                     
21. Gippsland Lakes, 15 December 1982                                                                                                                            
22. Lake Albacutya, 15 December 1982                                                                                                                             
23. Towra Point Nature Reserve, 21 February 1984                                                                                                                 
24. Kooragang Nature Reserve, 21 February 1984                                                                                                                   
25. Coorong and Lakes Alexandrina and Albert, November 1984                                                                                                      
26. Bool and Hacks Lagoons, November 1984                                        
27. Coongie Lakes, 15 June 1985                                                                                    
28. Macquarie Marshes Nature Reserve, August 1986                                                                 
29. ''Riverland'', 23 September 1987                                                                               
30. Kakadu National Park-Stage II, 15 September 1989                                                               
31. Ord River Floodplain, 7 June 1990                                                                              
32. Lakes Argyle and Kununurra, 7 June 1990                                                                        
33. Roebuck Bay, 7 June 1990                                                                                       
34. Eighty-mile Beach, 7 June 1990                                                                                 
35. Forrestdale and Thomsons Lakes, 7 June 1990                                                                    
36. Peel-Yalgorup, 7 June l990                             
37. Lake Toolibin, 7 June 1990                                                       
38. Vasse-Wonnerup System, 7 June 1990                                               
39. Lake Warden System, 7 June 1990

40. Moreton Bay Queensland 22 October 1993                                                                                 
41. Bowling Green Bay-- Queensland 22 October 1993                                                                                 
42
. Hosnie's Spring Australian Territory of Christmas Island, 16 December 1990.                             

(Source:  Answers to Questions on Notice in House of Representatives Hansard (Nos 165 of 11 October 1990 and 121 of 20 August 1996 respectively), the Hon. N. Blewett MP and the Hon. A. Downer MP. 

Endnotes

 

1.Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.

2.Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.

3.C. Saunders, ‘The Constitutional Division of Powers with Respect to the Environment in Australia’, 1996, Federalism and the Environment ed. Holland, Mouton & Gallison. p. 55.

4.Signed by Australia without reservation as to ratification on 8 May 1974.

5.Acceded to by Australia on 26 June 1991.

6.Signed by Australia on 21 September 1973 and ratified on 29 July 1976.

7.Signed for Australia on 5 June 1992 and ratified on 18 June 1993.

8.Signed for Australia on 5 June 1992 and ratified on 30 December 1992.   The Kyoto Protocol was negotiated in December 1997.

9.Ratified by Australia in August 1974.

10.Signed for Australia on 10 December 1982 and ratified on 5 October 1994.

11.Signed for Australia on 1 December 1959 and ratified on 23 June 1961.  Subsequently there has been a 1991 Protocol on Environmental Protection negotiated which Australia ratified on 6 April 1994.

12.OECD, Environmental Performance Reviews:  Australia, 1998, p.4-33.

13.Ibid.

14.Ibid., p 8.

15.Ibid.

16.Ibid.

17.B. Preston, ‘Some Elements of Effective Environmental Laws’, 1987, 4 EPLJ 280, p. 282.

18.J. Warnken & R. Buckley, ‘Scientific quality of tourism environmental impact assessment’, 1998, Journal of Applied Ecology, 35, 1-8, p. 5.

19.Ibid., p 6.

20.J. Warnken & R. Buckley, ‘Scientific quality of tourism environmental impact assessment’, 1998, Journal of Applied Ecology, 35, 1-8, p. 5.

21.Ibid.

22.Ibid.

23.Ibid., p. 7.

24.International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources International Atomic Energy Agency Safety Series No. 115 (1996) at 308.

25.The position of the baselines is determined according to the rules set out in the United Nations Convention on the Law of the Sea and promulgated.

26.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, p.4.

27.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, p. 5.

28.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, pp.3-4.

29.Second Reading Speech, Senator the Hon. R. Hill, 2 July 1998.

30.Brief Commentary on the Bill from the Environmental Defender's Office Ltd, p. 5.

31.Ibid.

32.Convention on Biological Diversity, ratified 18 June 1983.

33.The Endangered Species Protection Regulations were amended in 1995 to allow a taxonomist with relevant expertise to sign a written statement stating that in their opinion the species is a new species to the science of taxonomy.

34.See comments in: Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems IUCN Environmental Policy and Law Paper No. 29, 1993, p. 78.

35.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, p.6.

36.D. Lawrence, ‘Managing Parks/Managing ‘Country’:  Joint Management of Aboriginal Owned Protected Areas in Australia’, Dept. of the Parliamentary Library, Research Paper No. 2 , 1996-97.

37.For example, Principle 15 of the Rio Declaration on Environment and Development.  It is also contained in the Preamble to the Convention on Biological Diversity and was endorsed by the Second International Conference on the Protection of the North Sea in 1987.

38.Clause 3.5.1, Intergovernmental Agreement on the Environment, 1 May 1992.

39.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, p. 5.

40.Subsection 13(7), World Heritage Properties Conservation Act 1983 .

41.The filing fee in the AAT is $500.00 and in the Federal Court $500.00 for an individual (more for a corporation).   However, it is considerably more expensive to run an action in the Federal Court than in the AAT (see note 40).

42.The scale of costs for the AAT and the Federal Court are different and since there is a general (but not absolute) rule that the loser of a court action bears their own costs and the successful party’s costs, there is the risk of getting a larger order to pay costs awarded against you in the Federal Court.

43.Brief Commentary on the Bill from the Environmental Defender’s Office Ltd, p.1.

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19 August 1998

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