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SUBMISSION TO THE SENATE INQUIRY INTO COMMONWEALTH ENVIRONMENTAL POWERS
27 June 1997

Recommendations

The Australian Academy of Science recognises that the Australian Federation is a dynamic institution and that relationships change with elected Governments. However, the powers of the Commonwealth in Environment Protection (EP) and in Ecologically Sustainable Development (ESD) should be explicit.

At present, there is little apparent consistency and logic attached to the way the system is structured. The involvement of the Commonwealth in EP and in ESD is seldom proactive and more often triggered by the need to make a decision for another purpose e.g. whether or not a proposed major development should proceed. We suggest that some ways forward might include

1. A study which made the rights and responsibilities of the Commonwealth explicit and able to be implemented. The system needs to reflect the structure of the Federation with different responsibilities falling to different tiers of government (subsidiarity). Where possible, one tier of government should have sole responsibility for the final decision (although others may have an interest). Where dual responsibility is unavoidable, then an agreed process for avoiding duplication of process needs to be pursued.

2. The potential involvement of the National Environment Protection Council (NEPC) in clarifying the operational role of the Commonwealth in EP and ESD should be investigated. Use should be made of such diverse, but essential, building blocks as the Interim Biogeographical Regionalisation of Australia (IBRA) and the Intergovernmental Agreement on the Environment (IGAE) to clarify the role of the Commonwealth, and to ensure that responsibility for ESD and EP is shared by all levels of Government in Australia.

3. Clarity is needed in such terms as 'National Interest' and 'National Significance'. The listings on the National Estate should be reassessed and revised against clearly defined criteria. It is felt that many listings are not truly of national significance, whereas some areas of national significance are not listed.

4. Environmental Impact Assessments (EIAs) are, in almost all cases, inadequate, because of the lack of requirement to assess cumulative impacts from a number of developments, and there is often little or no assessment beyond the completion of the project through to the operational function. While monitoring is project dependent it should be sufficiently comprehensive and over a sufficient time period to be meaningful.

5. The role of Government in ESD and EP should be largely facilitative. Government should lead by example in all of its own operations, and also assist and reward best performance by others.

6. A logical first step would be for the Government to replace the Expenditure Review Committee by a Sustainable Development Review Committee. Currently, economic decisions do not require an assessment of ecological sustainability.

Background

These notes provide background to the Academy's recommendations to the review and concentrate on the effectiveness and practicality of existing arrangements. It is necessary to clarify the respective responsibilities of Commonwealth and State relationships

Comment on sections (b) (i)-(viii) has been incorporated into the more general headings.

(a) the powers of the Commonwealth in environmental protection and ecologically sustainable development in Australia, including an examination of case studies

Environmental protection

During the last twenty years, Commonwealth powers have not been applied in a consistent pattern. Because of the way Commonwealth legislation works, the involvement of the Commonwealth has often been triggered by the need to make a decision for some other purpose. It is not always clear if the Commonwealth has a direct role and it often enters the process very late, for example, in the case of Wesley Vale. There appears to be little consistency and very little logic attached to the way the current system is structured with environmental considerations often becoming a bargaining tool in Commonwealth-State negotiations.

States and Territories ignoring Commonwealth powers

The Commonwealth has a clear responsibility for international obligations such as World Heritage listings and is also responsible for those matters of national environmental significance. However, no classification is consistently applied. For example, it is possible for the 'Impact of Proposals Act' to be applied for approval of a small jetty but to totally ignore a very large area of remnant vegetation clearing. This occurs when the Commonwealth is not involved in funding, and the environmental considerations are not triggered.

There should also be a clarification of the meaning of 'national significance'. For example within a State, an area may be of national significance but if there is no legal jurisdictional requirement a State may argue this is not a Commonwealth matter. The challenge has to be made by the Commonwealth.

Commonwealth powers should be applied in a logical way and there should be a clear hierarchy of responsibilities.

There is no consistent arrangement for all States and Territories over the extent of the offshore limit of State jurisdiction.

Great value would be derived from a study which aimed at making the rights and responsibilities of each tier of government explicit and able to be implemented.

Case studies where powers have been invoked regarding ecologically sustainable development (ESD)

ESD is written into State legislation but a test of ESD has not been established by legal precedent. There is also the problem of defining ESD in legal terms.

However, sustainable agricultural practices have been defined(1).

For example, 'property management planning' is a concept encouraged by the Commonwealth and States to improve economic, social and environmental management of agricultural properties. The definition of sustainable agriculture applied is

'......the use of farming practices and systems which maintain or enhance

• the economic viability of agricultural production
• the natural resource base
• other ecosystems which are influenced by agricultural activities'.

In general, ESD is not reflected in economic decision making. Although ESD is concerned with the integration of the economy and the environment, it seems that environmental matters have to undergo an economic test, - a test of economic sustainablity, but economic decisions rarely have to undergo a test of ecologically sustainability.

In the case of Environmental Impact Assessments, ESD is applied sporadically, and often because of some environmental value of immediate public concern. In addition, there is no attempt to examine cumulative impacts.

A proponent for a relatively modest development should not be responsible for assessing cumulative impacts. In State legislation there is the potential to apply this in cases of discharge into a catchment area or ocean but not to logging in private forests.

In the case of primary industries, fishing and forestry limits require joint, multi-jurisdictional approval. In fisheries, State fisheries management authorities and the Australian Fisheries Management Authority (AFMA) work closely with the relevant industry and recreational groups.

The Energy Research and Development Corporation, which is now being wound up, provided a process which encouraged significant energy users to operate more efficiently.

There are many large companies with a working commitment to ESD as they recognize this is in their own best interest. For example, companies such as Cabot Australasia Pty Ltd and Kemcor Australia have comprehensive environmental improvement plans.

The Greenhouse Challenge Program, a joint initiative of three Commonwealth departments which sets out a framework for industry and government to work in partnership. Its aim is to ensure companies and government achieve maximum practicable greenhouse gas abatement performance and, at the same time, improve their competitive advantages.

It should be stressed that any regulation directed towards ESD needs to be facilitative. Governments are unable to achieve ESD on their own. They can only lead, assist and reward. They are unable to command and control ESD.

It would be more workable for responsibility for ESD to lie with the level of government best able to enforce, subject to nationally-agreed guidelines.

There needs to be some way of reflecting the environmental costs of the governments' fiscal policies. Unfortunately, Treasury does not recognize this. One way to address this would be to supplement the Expenditure Review Committee of Cabinet with a Sustainable Development Review Committee.

(b) the practicality, adequacy and application of existing Commonwealth mechanisms, including legislation , to promote the national interest in the protection of natural and cultural heritage, and to achieve compliance with the principles of ecologically-sustainable development

Practicality, adequacy and application of mechanisms for protection of the national heritage

During the last ten years there has been significant progress in the protection of the National Estate through increased numbers of reserves, expenditure through the Australian Heritage Commission, increased community awareness and appreciation of the obligations to protect Australia's natural and built heritage, including pre-European heritage.

However, there is no test for environmental significance and there is no way of assessing if Commonwealth laws are effective.

One of the main problems is caused by conflict between economic development and environmental protection. There are a number of guidelines in the ESD Working Group papers (1991) and in political processes such as the Comprehensive Regional Assessments for Forests and Sustainable Catch Limits for Fisheries. These should be applied more generally to reduce conflict between environmental protection and sustainable economic development.

A huge effort has gone into defining heritage and cultural values with well developed guidelines, and rules which are applied by Federal and State governments. These have worked well in some situations but have not worked at all in the case of the Port Hinchinbrook development.

It would be more workable for responsibility for ESD to lie with the level of government best able to police, subject to nationally-agreed guidelines.

Interim Biogeographical Regionalisation of Australia (IBRA)

IBRA data are being used by the Commonwealth Department, Environment Australia, as the framework for the analysis of priorities for the National Vegetation Initiative. Surprisingly, the highest priorities are in the near metropolitan areas. There are a total of 80 regions (land) and a lesser number for the marine environment. Commonwealth and all State governments have accepted IBRA regions as a basis for forward planning. The IBRA also offers a logical and coherent framework for the review of terrestrial ecosystems and to a lesser extent marine ecosystems.

Adequacy of mechanisms

There are mechanisms to promote the national interest in the protection of natural heritage and to achieve compliance with the principles of ESD but they are are not consistent. For example, the National Environment Protection Council (NEPC) has potential.

The Intergovernmental Agreement on the Environment (IGAE) has achieved much in areas such as biodiversity and data collection.

The Commonwealth has a powerful role through export and import controls and this will become more important as international legislation starts to impact on all countries. Quarantine has become neglected as a national function, and the main findings of the Nairn review of the Australian Quarantine Inspection Service have yet to be implemented by the Australian Government, although additional funds were announced in the 1997-8 Budget.

Government decision-making in both legislation and policy mechanisms must be transparent.

(c) appropriate balance of powers and mechanisms

If explicit statements existed for each level of government, many of the current problems between State and Commonwealth jurisdiction could be avoided.

The National Environment Protection Council (NEPC) is a Council of Governments (not environment Ministers) and has a whole-of-government responsibility and could contribute to this process in a practical way.

With a set of national principles agreed through the Inter-Government Agreement on the Enviroment (IGAE), and with the NSESD strategy and the NEPC mechanism to achieve national agreement, national standards and protocols can be a powerful system to address areas of concern.

Footnotes

1. Sustainable Agriculture 1991, Standing Committee on Agriculture, Working Group on Sustainable Agriculture. SCA Technical Report Series No. 36. Adopted by SCA and ARMCANZ, 1991.