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Wednesday, 11 December 1974
Page: 3407

Senator CARRICK (New South Wales) - This Bill brings into focus an important tendency in the modern community to assert that when government is making policies of any kind it should take into account the effect, if any, upon the environment of those policies. Therefore over recent years the States have passed legislation insisting that where some action is to be taken by a private or other authority there be prepared a document, an environmental impact study, and that that document be used by governments in determining whether the particular proposal should go on. To the extent that this document should be considered in all decision making of government, the Bill has the total and unequivocal support of the Opposition. The Opposition believes that governments at all levels should look to the impact on the environment before they take action. It supports the Council of Environmental Ministers which, when considering procedural matters, agreed on what should be the nature of an environmental impact study and decided that all statements should assert the need for the particular undertaking, its objective, what alternative means there are to achieve the same ends or goals and what the environmental impact might be. To that extent again the Opposition would be in full sympathy.

The Opposition stresses that here again the States have been extremely progressive. My own State of New South Wales has been a pacesetter and inevitably the Commonwealth looks towards it, and specifically towards it, for its own purposes. The Government has said that it proposes this Bill in terms of those matters which are of Commonwealth concern. The real nub of this matter is the methodology- not whether there ought to be an impact study, because the answer to that would be that there ought to be, but who should do it, when it should be done and by what formula. In America there is a rather arbitrary approach to this. As I understand it, in America environmental impact studies are mandatory before any proceedings are undertaken and the argument about them is taken before courts of law. Inevitably, therefore, huge expenditure is involved in the preparation of these studies and also huge litigation is involved.

The Commonwealth has not adopted- I think wisely- the American system. It has not insisted that in every undertaking a study should be made. It has insisted on the right of government to require such a study, to require a particular form of study and the method of carrying it out. It has provided a means whereby, if necessary, a commissioner shall conduct a public hearing- in some circumstances a private hearing- and therefore the public can be involved. Finally, a document can be given to the Cabinet as a basis for consideration. Spelt out in that way, the proposal is unobjectionable- in fact, it is desirable.

The question, though, arises as to whether the Commonwealth comes into possible conflict with the States and whether its actions or its methodology may be against civil liberties and may be harsh and unconscionable. The real, basic and fundamental criticism by the Opposition would arise if it were sought under this measure to have any duplication of impact studies when the States would normally undertake them or if there were to be any overriding or assertive power by the Commonwealth Government in this regard.

In the other place a number of questions of this type were raised with the Minister for the Environment and Conservation (Dr Cass). The Minister was asked whether moneys allocated to the States by the Loan Council would be regarded as being moneys, when spent, which have a Commonwealth interest and whether therefore, the Government could possibly intervene in their expenditure. The Minister was asked about the query of the Premier of Queensland as to whether hearings held under this legislation could prejudice the operations of the local government court or the land court. He was asked also whether in fact it was likely there would be duplication between the Australian Governent and State governments. Conscious of the limitation of time, I have a letter written by the responsible Minister, Dr Cass, to the shadow Minister in the other place, Mr Hunt. In that letter Dr Cass sought to answer some of these questions. I seek leave to have this letter incorporated in Hansard.

The ACTING DEPUTY PRESIDENT (Senator Marriott)- Is leave granted? There being no objection, it is so ordered. (The document read as follows)-

Dear Ralph,

I write concerning several matters which you raised in the debate last Wednesday night on the Environment Protection (Impact of Proposals) Bill. I did not answer them at that time because of the time constraints of which you were aware.

You raised concerns about the Bill that have been conveyed to you by the Premier of Queensland and the Minister for Conservation in Victoria. Their principal concern appeared to be that the Bill might be used in relation to Loan Council approvals. In this respect, in the course of drafting the legislation, the First Parliamentary Counsel expressed the view that the Bill does not cover proposals for the application by States of funds, the borrowing of which have been approved by the Loan Council, unless some agreement or arrangement with the Australian Government is involved. In the latter respect, it is my understanding, from discussions that have occurred within the Standing Committee of the Australian Environment Council, that the States would not be prepared to enter into any such agreement or arrangement.

In respect of the Queensland Premier's concern that hearings held under this legislation could prejudice the operations of the Local Government Court or the Land Court I assure you that, within the constraints imposed by the legislation, every endeavour will be made to ensure that our procedures are compatible with those of the State and local authorities concerned.

Turning to the other issues raised by the Victorian Ministry for Conservation, I too am concerned about the duplication of the Australian and State Government activities in this area, having regard, in particular, to the very scarce resources that are available for our use. It is for this reason that I am encouraged by agreement that has so far been reached in the Australian Environment Council on this matter. I am also encouraged that nearly all of the State Governments are adopting this E.I.S. technique. You might recall that I mentioned the role of the States in relation to this legislation in the Second Reading Speech. I feel sure that as procedures develop and as each Government becomes more familiar with the requirements of the other, the opportunities for duplication will be reduced. I might say, that in respect of Victoria, my departmental officers advise me that already they are relying very considerably on advice received from the Victorian Ministry of Conservation in assessing the environmental effects of proposals being developed in that State.

On the question of the practicality, or otherwise of the procedures that it is proposed be established under Clause 6 of the Bill, I am aware that we are, in a sense, pioneering and that we shall have to tread warily. It is for this reason that we are specifying our detailed requirements in the form of Administrative Procedures rather than including them in the Act itself. Whether the Procedures turn out to be impractical will depend very much on how they are administered. In this respect, I am very conscious on the need to match our demands for impact statements with the resources we have available.

Yours sincerely,


The Honourable R. J. D. Hunt, M.P.,

Parliament House,

Canberra, A.C.T. 2600

The Opposition has sought to do 2 things in relation to these matters. Firstly, it has endeavoured to ensure that there would be no duplication and that the Commonwealth would always seek to have the States undertake these studies if the States were the responsible bodies and that there would be no duress. In the Committee stages the Opposition will be moving an amendment with the hope of lessening the possibility of duplication. Secondly, we are worried about a number of procedural matters- the powers of procedure by the commissioners in seeking to obtain evidence and to inspect property. The Opposition proposes to amend clause 24 which states:

For the purposes of an inquiry under this Act, a Commissioner, or a person acting with the authority of a Commissioner, may, after giving reasonable notice to the occupier of any land, building or place-

(a)   enter and inspect the land, building or place; and

(b)   inspect any material on the land, or on or in the building or place.

In the Committee stages the Opposition will move for the inclusion of the ordinary civil liberties provision- one which the Government, when in Opposition, strongly advocated- which is that before any commissioner or person acting with the authority of the commissioner shall go upon private property they shall make a proper application before a justice of the peace, satisfy the justice of the peace of their right to enter the property and of the necessity to do so and get a warrant from the justice of the peace. We will be moving that amendment because otherwise there is inherent in the Bill the danger that we will have a massive infringement of civil liberties. It must be kept in mind that in the interests of the environment, in the interests of ecology, we are seeking to allow officials to carry out widespread and virtually open-ended inspections in virtually every function of life. If this is so, some protection for the private citizen should be written into the legislation.

Basically the principle of carrying out an impact study is good. The States have been undertaking those sorts of studies. The Opposition agrees with the idea that the carrying out of such a study should not be mandatory or litigated continuously in the courts. The Opposition fundamentally would be opposed to these studies if they were to be an intrusive thing or if they were to be a toe-hold device of the Government. The danger running through this Bill is that, using the device of section 96 grants or other devices, the Commonwealth Government will seek to intrude into all sorts of processes of the States and force inquiries. In this regard the Minister has made statements, both by letter and otherwise, that this is not intended. I have included in Hansard the text of the Minister's letter which deals with the Loan Council and other matters, and particularly with the Queensland Premier's query. Time does not permit me to warn of the inherent dangers to federalism, the duplication of costs and the duplication of bureaucracy; all that one can do is to warn. It ought to be said, however- the Minister himself has said it- that the obtaining of such an environmental impact study does not of itself give the Minister any necessary weapon. Having obtained the impact study, the Minister has no necessary punitive weapon; he himself cannot take official action. The document goes to the Cabinet and seeks to guide the Cabinet.

We are now entering into an entirely new phase of decision making. In some countries the methodology of obtaining these impact studies and bringing to decision makers the responsibility for the environment has created an immense slowing down of processes and much litigation. We support the principle of the measure. During the Committee stage we will move a series of amendments.

Senator Murphy - If those amendments are small, would you be willing to let them go on the understanding that they might be brought up afterwards, rather than stop this Bill from going through?

Senator CARRICK -We do not regard the amendment we propose in relation to civil liberties as small. We think that it would take 5 minutes to deal with. We have undertaken to give this Bill to the Government by 6 p.m.; we will give it to the Government by 10 minutes to six. If that is the case, we will be keeping faith. Basically we would regard our proposed amendments as being fundamental. We will support the Bill with those qualifications.

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