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Monday, 10 May 1993
Page: 336


Senator CHAMARETTE —My question is directed to the Minister representing the Minister for the Environment, Sport and Territories. I ask: does the Commonwealth Government have any powers or international obligations to intervene to stop exploration or mining of resources in areas adjacent to or within the Ningaloo Marine Park in Western Australia? Specifically, what powers exist under the Endangered Species Act 1992, the National Parks and Wildlife Conservation Act 1975, the Australian Heritage Commission Act 1975, the Environment Protection (Impact of Proposals) Act 1974, the World Heritage Properties Conservation Act 1983 or the Australian Constitution?


Senator SCHACHT —The answer to the detailed question asked by Senator Chamarette is as follows: the Ningaloo Marine Park encompasses both Commonwealth and State waters declared separately under Commonwealth and State legislation. There are also adjacent Commonwealth waters and adjacent waters administered by the State which are not part of the Ningaloo Marine Park. At a recent oil industry meeting, the Western Australian Premier, Mr Court, is reported to have indicated his Government's intention to permit oil exploration in Ningaloo Marine Park. The Minister for the Environment, Sport and Territories, Mrs Kelly, has written to Mr Kevin Minson, the Western Australian Minister for the Environment, for clarification and seeking his assurance that full environmental assessments will be carried out for any activities proposed to be conducted in or near the Ningaloo Marine Park.

  I can assure the Senate on behalf of the Government that no exploration or mining leases have been awarded in Commonwealth waters either in or around the boundaries of Ningaloo Marine Park since its declaration. With regard to waters administered by the State, the applicability of the Commonwealth legislation specified in the question is as follows: with regard to the Endangered Species Act 1992, if no Commonwealth action or decisions are involved, the Endangered Species Act 1992 could not be invoked. The National Parks and Wildlife Conservation Act 1975 is not applicable. With regard to the Australian Heritage Commission Act 1975, while Ningaloo Marine Park is entered on the interim list of the Register of the National Estate, the Australian Heritage Commission Act 1975 could not be triggered unless there was a Commonwealth involvement in the decision to explore or drill.

  With regard to the Environment Protection (Impact of Proposals) Act 1974, so long as there is no requirement for a decision by a Commonwealth Minister or authority, the provisions of this legislation could not be invoked. The World Heritage Properties Conservation Act 1981 is not applicable. There are no direct powers in the Australian Constitution allowing the Commonwealth to legislate to protect the environment. There are, however, a number of heads of power that, depending on the circumstances, might be available to enable the Government to intervene. These include section 51(i), international or interstate trade or commerce; section 51(xx), corporations; or section 51(xxix), external affairs.

  The Commonwealth's constitutional powers to legislate for all matters affecting the sea and seabed below low water on the coast of States or Territories may also be relevant. This power was established by the High Court in the seas and submerged lands case of 1975. The Commonwealth transferred the seabed title and sea jurisdiction out to three nautical miles to the States and the Northern Territory in the offshore constitutional settlement of 1980. This was done by Commonwealth legislation of the Fraser Government.


Senator CHAMARETTE —Mr President, I ask a supplementary question. I am pleased to hear that some of those Acts are regarded by the Minister as applicable. I would like to ask, in this case, why the Minister said on ABC radio two weeks ago that, because the area is not Commonwealth land, no powers exist to stop exploration or mining.


Senator SCHACHT —I am unaware of the comment that Senator Chamarette claims was made by the Minister. I will refer that matter to the Minister and get a report back as soon as possible.