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Resource Assessment Commission Coastal Zone Inquiry - Final Report November 1993

Resource Assessment Commission, November 1993
ISBN 0 64429457

CHAPTER 8 INSTITUTIONAL ARRANGEMENTS

8.01 It is not easy to get several governments and numerous agencies to adjust existing programs to operate as coordinated parts of a broader and single program. New and improved institutional arrangements are required. This chapter discusses the institutional arrangements necessary to implement and manage the National Coastal Action Program.

8.02 Section 8.1 canvasses a number of issues relating to these arrangements including the need for new executive agencies, the form of the proposed agreement between governments, and the need for new legislation. National institutions-those required to deal with issues affecting all governments-are considered in Section 8.2. Sections 8.3, 8.4 and 8.5 deal with state, local and Commonwealth institutions respectively. Section 8.6 contains the Inquiry's conclusions and recommendations for institutional arrangements.

8.1 INTERGOVERNMENTAL ISSUES

8.03 Inquiry participants put forward a number of proposals for achieving greater integration of existing coastal zone policies and programs. At one extreme was the option of transferring responsibilities for overall coastal management from the considerable number of existing agencies within each state government and the Commonwealth government to a single national agency to manage all coastal zone resources.

8.04 This would be unrealistic. The range of government functions performed in the coastal zone is so great that the case for dividing functions up into individual agencies in any government-to achieve efficiency-applies equally in the coastal zone.

8.05 A more efficient way of achieving integration of policies and programs is to seek to coordinate existing programs of Commonwealth and state agencies and local authorities so that they retain their current responsibilities while ensuring that their programs and policies serve the objectives of the Program. These agencies and authorities can then use their expertise and experience to deal with issues within their jurisdictions. All spheres of government would therefore need to review existing structures to ensure that they will be able to contribute effectively and efficiently to the objectives of the National Coastal Action Program.

8.06 To secure the required commitment to support the common program, it will be necessary for governments to enter formal agreements. They should take into account the responsibilities for and interests in coastal zone management of the three spheres of government, acknowledging the Commonwealth's responsibility for meeting national and international obligations and the responsibility of state and local governments for the greater part of coastal resource management.

8.07 Several different forms of agreement have been used to implement other national programs and policies. Inquiry participants identified various other forms that might be used. Some states and a number of organisations favoured the use of a schedule to the Intergovernmental Agreement on the Environment (1992); others were opposed to this, either because they believe that the states should retain principal responsibility for coastal zone management (for example, Australian Mining Industry Council, Submission 307) or because they have strong reservations about the effectiveness of the Intergovernmental Agreement on the Environment (1992) in coordinating the activities of Commonwealth, state and local governments in the area of environmental management and therefore question its capacity to perform this function for the more diverse requirements of coastal zone management (for example, Australian Conservation Foundation, Submission 589, app. B).

8.08 The Intergovernmental Agreement on the Environment (1992) is a significant agreement dealing with pressing environmental and related issues, but it would detract from the importance of coastal zone issues to subsume them in that Agreement. It is preferable that separate agreement be reached between governments for implementing the National Coastal Action Program. This agreement should be endorsed by the Council of Australian Governments and, to ensure that integrated coastal zone management is achieved without delay, governments should aim to reach such agreement by the end of 1994.

8.09 There was considerable divergence of views among Inquiry participants about the Commonwealth's role in management, including the possible need for Commonwealth legislation to implement the National Coastal Action Program. Some participants argued for a continuance of the current situation, in which most management responsibility rests with state and local governments. Other participants were in favour of a stronger Commonwealth presence, supported by new Commonwealth legislation. The Australian Conservation Foundation submitted to the Inquiry that a legislative package, including tied funding arrangements, would be critical to the achievement of many of the objectives of the National Coastal Action Program, although its proposals did not encompass assumptions by the Commonwealth of responsibilities previously performed by state governments.

8.10 Although the Commonwealth has considerable powers under the Constitution to take action in relation to various aspects of coastal zone management, there would probably be much debate about the extent of these powers; any attempt by the Commonwealth to undertake directly activities that are currently the responsibility of the states could result in considerable delays in implementing the National Coastal Action Program.

8.11 The Inquiry examined the potential use of legislation to achieve greater integration of coastal zone management and considered several overseas examples as a guide to ways in which such integration might be achieved (Taberner et al. 1993). The United StatesCoastal Zone Management Act 1972 was one such example.

8.12 Rather than attempting to impose a uniform national regulatory scheme, the United States Act provides for a voluntary incentive-based program under which participating states develop their own management programs to protect their coastal resources. The Act does not authorise the United States Government to develop coastal zone management programs for states that choose not to develop their own, nor does it provide for sanctions against states that choose not to participate.

8.13 To encourage states to participate voluntarily, the Act provides two powerful incentives: federal financial and technical assistance; and federal 'consistency' provisions. Under the Act, federal funding is available for coastal zone management plan development and for implementation. Once a state coastal zone management plan has received federal approval, the Act's consistency provisions require that federal agency actions affecting the state's coastal zone be consistent with the state's approved coastal zone management program, allowing participating states to retain control over all developments within their coastal zones.

8.14 In recent years the preference in Australia has been to seek agreement between the states and the Commonwealth, frequently without legislation, on matters for which joint action is required (Galligan & Fletcher 1993). The Inquiry agrees with the view put by several states and other Inquiry participants that this is the preferred overall approach to coastal management issues, but it also takes the view that such an approach may founder unless the Commonwealth takes the lead and enacts legislation to support the National Coastal Action Program. For the purpose of implementing and supporting the Program, the Inquiry proposes that, in addition to an agreement being reached between governments, the Commonwealth enact a Coastal Resource Management Act.

8.15 This Commonwealth legislation would have some elements in common with the United States Coastal Zone Management Act. It would provide for the initiation, implementation and review of agreed national coastal zone management objectives and principles; it would not attempt to impose a uniform national regulatory scheme.

8.16 The proposed Coastal Resource Management Act would, among other things, provide that Commonwealth funding of coastal resource management activities-whether in the form of direct expenditure by Commonwealth agencies on coastal zone management or as grants to state and local governments for specific elements of coastal zone management-be confined to activities consistent with the objectives and principles of the National Coastal Action Program.

8.17 This legislation would differ from the United States legislation in providing that the objectives and principles endorsed by the Council of Australian Governments form the basis for determination of priorities and funding allocations by the Commonwealth to coastal zone management. By virtue of discussions within the Council, the states as well as the Commonwealth would have a say in determining the provisions of the Act. The endorsed objectives and principles should be reviewed periodically by the National Coastal Management Agency. It may be appropriate therefore for the objectives and principles to be set out in a schedule to the Act.

8.18 The effectiveness of the Commonwealth Act would be enhanced by, but would not be reliant on, the enactment of complementary state legislation. Any consideration of broader legislation or complementary state legislation should not delay the enactment of the proposed Coastal Resource Management Act.

8.19 Should national agreement on coastal zone management objectives and principles not be achieved by the end of 1994, an alternative to the legislation proposed by the Inquiry would be legislation more akin to the United States legislation. Such legislation could link Commonwealth expenditure in the management of the coastal zone (including expenditure through the states and local government) to the achievement of clearly defined coastal zone objectives developed by the states and subject to Commonwealth approval rather than to compliance with agreed national objectives and principles. This approach would undoubtedly be inferior to the proposal to involve all states in the development of the National Coastal Action Program and the supporting legislation: a cooperative approach between governments is preferable.

8.2 NATIONAL INSTITUTIONS

8.20 Implementation of the National Coastal Action Program requires the development of administrative arrangements that integrate the efforts of the three spheres of government and non-government bodies. The Council of Australian Governments provides a framework for intergovernmental decision making. Existing ministerial councils cannot provide such a framework since the 'whole of government' nature of coastal zone management requires the participation of at least three ministerial councils, and regular coordination between councils would not be effective and efficient.

8.21 The Council of Australian Governments is serviced by a Standing Committee that has created an Ecologically Sustainable Development Steering Committee to examine resource and environmental matters of national importance. Although the Steering Committee can play a valuable role leading up to agreement on the National Coastal Action Program in 1994, it does not have the time or the expertise required to implement the National Coastal Action Program.

8.22 A new national agency, which would include a small secretariat, is required to manage the National Coastal Action Program: the Inquiry proposes the creation of a National Coastal Management Agency. This Agency would be responsible for guiding the implementation and continuation of the Program and would report to the Council of Australian Governments. It is essential that peak stakeholder groups have direct access to the Agency: a National Coastal Consultative Council should also be established. Figure 8.1 summarises the framework within which the proposed national institutions will operate, including their relationship to the existing Council of Australian Governments framework. These new bodies are to be national institutions and not Commonwealth-controlled bodies; institutional arrangements at the Commonwealth level are examined in Section 8.5.

8.23 The following are functions of the National Coastal Management Agency:

8.24 To perform these functions, it is essential that both the National Coastal Management Agency and the National Coastal Consultative Council have high profiles, in both government and non-government spheres.

8.25 The National Coastal Management Agency should comprise two parts: a part-time board representing state, local and Commonwealth governments and indigenous people; and a full-time secretariat. The Agency should have an independent chairperson who is also its chief executive officer. This person should have exceptional leadership qualities and a sound knowledge of bureaucratic processes.

8.26 Secretariat staff of the National Coastal Management Agency should be officers selected on the basis of their experience in coastal zone management and their ability to understand coastal zone issues in the variety of jurisdictions represented in the National Coastal Management Agency. Staff may be seconded to the secretariat from state and local government agencies.

8.27 All states should have one representative on the board of the Agency; the representative would preferably be the head of the state coastal coordinating committee. The Commonwealth would also have one representative on the board. Local government should have two representatives, nominated by state local government associations. Australia's indigenous people should also be represented. The Agency's members would meet on a regular basis; in the initial stages of implementing the National Coastal Action Program it will probably be necessary for them to meet more frequently than at later stages.

8.28 The principal role of the National Coastal Consultative Council will be to provide professional and technical advice to the Management Agency. It is therefore essential that the Council have access to the various categories of expertise necessary for this purpose, including managerial, scientific and other expertise. Membership of the Council should not exceed 25, and members should be chosen for their ability to contribute to the discussion of technical and professional issues. Membership should

Figure 8.1

Figure 8.1 Proposed national institutional arrangements

include representatives selected from nominees of peak bodies, including, for example, the Australian Conservation Foundation, the Business Council of Australia, the Australian Mining Industry Council, the Australian Petroleum Exploration Association, the Australian Tourism Industry Association, the National Fishing Industry Council, the National Farmers Federation, and research institutions such as CSIRO, the Australian Institute of Marine Science, the Great Barrier Reef Marine Park Authority and universities.

8.29 The expenses of the National Coastal Management Agency and the National Coastal Consultative Council should be met by arrangement between governments. The proposed Coastal Resource Management Act may provide an appropriate basis for any legislative support that might be necessary to establish the National Coastal Management Agency and the Consultative Council.

8.3 STATE GOVERNMENT ARRANGEMENTS

8.30 As discussed in Chapter 4, most state governments have already developed mechanisms for coordinating various aspects of coastal management. At present the composition and roles of committees employed for this purpose vary considerably between the states. State governments should review the composition and roles of these committees to ensure that they are in the best position to integrate the states' participation in implementing the National Coastal Action Program.

8.31 State committees should have the following characteristics:

8.32 One of the most important roles of the state coordinating committees will be to oversee and facilitate links between state agencies and local authorities. It would also be advantageous if each state established an advisory committee, similar to the National Coastal Consultative Council and comprising representatives of industry, conservation, indigenous, union, research and professional groups, to provide advice to coastal coordinating committees.

8.33 In addition to these coordinating mechanisms, some benefit could be derived from reviewing the current distribution of management functions between state agencies. As discussed in Chapter 4, management functions are currently distributed between a wide range of agencies. When similar or complementary responsibilities are discharged by different departments responsible to different Ministers the task of integrating decision making is needlessly complicated. This is particularly the case in relation to public and private land use management. This problem can, in part, be resolved by placing similar resource management functions within a single Minister's area of responsibility, thus reducing the number of management agencies. The Inquiry does not underestimate the difficulties that may be associated with doing this, but functionally efficient administrative arrangements are necessary if coastal resource management is to be improved.

8.4 LOCAL GOVERNMENT ARRANGEMENTS

8.34 Most states have recently revised or are currently revising their legislation dealing with local government powers, responsibilities and related matters. The resultant changes in the organisation of local authorities are expected to lead to greater management efficiency. In addition, the Integrated Local Area Planning approach being promoted by the Australian Local Government Association (ALGA 1993a) provides the opportunity for reviewing organisational structures so that they are more amenable to integrating local authority activities.

8.35 As part of the National Coastal Action Program, all local authorities should review the manner in which they deal with coastal management issues within their own jurisdictions, so that they are in the best position to carry out their very important role in the Program's implementation. Many smaller authorities may need assistance from other authorities or state governments to review their coastal zone management arrangements.

8.36 The models identified by the Australian Local Government Association in relation to Integrated Local Area Planning and the approaches being taken by some authorities, such as establishment of interdisciplinary groups for strategic planning and interdepartmental coordinating groups (ALGA 1993b, p. 44), provide a good base for such review. Local authorities should also review the facilities for community, industry and indigenous involvement in coastal zone resource management within their jurisdictions (see Chapters 9 and 10).

8.37 Many local authorities are now involved in regional cooperation: approximately 50 voluntary regional organisations of councils, covering 40 per cent of all councils, have been formed in the last decade. Some of these organisations have been specifically formed to deal with coastal issues; for example, in Sydney, Melbourne, Adelaide and south-west Western Australia. They have been assisted by Commonwealth programs such as the National Voluntary Regional Cooperation Program conducted by the Department of Health, Housing, Local Government and Community Services. Local and regional aspects of the National Coastal Action Program could be coordinated through these voluntary regional organisations of councils.

8.5 COMMONWEALTH GOVERNMENT ARRANGEMENTS

8.38 As noted in Chapter 4, the Commonwealth's management responsibilities in the coastal zone are determined by the Australian Constitution. The Commonwealth Government has responsibility for Commonwealth land in the coastal zone and for marine and seabed resources from 3 to 200 nautical miles from the low-water mark. Constitutional powers enable the Commonwealth to participate in management of matters relating to trade and commerce, defence, customs and excise, external affairs, fisheries in Australian waters beyond territorial limits, indigenous affairs, and other matters set out in or implied by the Constitution. The Commonwealth is also responsible for resource management as a party to international treaties, agreements and conventions.

8.39 The Commonwealth Government has released a draft policy on Commonwealth responsibilities in the coastal zone (DASET 1992b) and established an interdepartmental committee to coordinate activities relating to these responsibilities. This committee should remain in existence and be named the Commonwealth Coastal Management Committee, with the following functions:

8.40 Membership of the Commonwealth Coastal Management Committee should include representatives of all portfolios responsible for programs and policies dealing with the coastal zone-the Department of Prime Minister and Cabinet, the Department of Primary Industries and Energy, the Department of the Environment, Sport and Territories, the Department of Health, Housing, Local Government and Community Services, the Department of Tourism, the Department of Industry, Technology and Regional Development, the Aboriginal and Torres Strait Islander Commission, the Department of Defence and the Department of Transport and Communications. The Committee will provide a mechanism for integrating the Commonwealth's activities in relation to the National Coastal Action Program.

8.41 In view of the responsibilities of the Department of the Environment, Sport and Territories in management of coastal zone resources, that Department should have the role of lead agency in the Committee's activities. The Committee should report to Cabinet and relevant ministerial councils through the Minister for the Environment.

8.6 CONCLUSIONS AND RECOMMENDATIONS

8.42 Creating a single coastal zone management agency or coastal zone management agencies in each sphere of government is not practical. Neither is assigning coastal zone responsibilities to a single sphere of government. What is needed is national cooperation and action.

8.43 Many forms of agreement could be used for implementing the proposed National Coastal Action Program. The Intergovernmental Agreement on the Environment is a significant agreement dealing with pressing environmental and related issues, but it would detract from the importance of coastal zone issues to include them in that Agreement. The importance of the coastal zone and the shared nature of management responsibilities between governments requires a separate agreement.

R.06 The Inquiry recommends that

an agreement between governments for implementing the National Coastal Action Program be endorsed by the Council of Australian Governments.

8.44 In addition to a cooperative agreement between governments for coastal zone management, the Commonwealth should take the lead in initiating and implementing national coastal zone objectives and principles and other components of the National Coastal Action Program. The Commonwealth should not, however, attempt to impose a uniform national coastal regulatory scheme. Rather, it should enact legislation to guide funding allocations by the Commonwealth to coastal zone management. The Act will incorporate the objectives and principles for coastal zone management agreed between Commonwealth, state and local governments.

R.07 The Inquiry recommends that

the Commonwealth enact a Coastal Resource Management Act, which, among other things, would provide that Commonwealth funding of coastal resource management activities-whether in the form of direct expenditure by Commonwealth agencies on coastal zone management or as grants to state and local governments for specific elements of coastal zone management-be confined to activities consistent with the objectives and principles of the National Coastal Action Program.

8.45 To facilitate the implementation of the National Coastal Action Program, it is necessary to develop administrative arrangements that will integrate the efforts of the three spheres of government and non-government bodies to achieve the agreed objectives.

R.08 The Inquiry recommends that

a National Coastal Management Agency be established, with a board representing the interests of Commonwealth, state and local governments and Australia's indigenous people, and a full-time secretariat;

an independent chairperson of outstanding stature and with exceptional leadership qualities be appointed. The chairperson would also be the Agency's chief executive officer;

that the Agency report to the Council of Australian Governments.

8.46 A national consultative group is necessary to provide professional and technical advice to the National Coastal Management Agency.

R.09 The Inquiry recommends that

a National Coastal Consultative Council be established, to advise the National Coastal Management Agency. The Council should include representatives selected from nominees of peak bodies, research institutions and other bodies with major interests in the management of coastal zone resources.

8.47 Most state governments already have committees to coordinate coastal zone management. At present, however, these committees do not have the responsibilities and resources necessary to carry out their functions in a manner that will enable the states to integrate their coastal management arrangements, as proposed in the National Coastal Action Program.

R.10 The Inquiry recommends that

all state governments review the composition and roles of their coastal coordinating committees in light of the characteristics proposed by the Inquiry, to ensure that the committees are in the best position to manage state participation in the National Coastal Action Program;

the review include arrangements for the coordination of local and regional groups participating in the development and implementation of strategies to implement the Program;

each state establish a coastal advisory committee comprising representatives of non-government groups;

all state governments review the existing distribution of coastal management functions between agencies, with a view to incorporating similar or complementary functions in single ministries.

8.48 Various reviews of local government organisational arrangements are under way and various types of committees currently assist local governments in managing coastal zone resources. In addition to these arrangements, it is necessary to ensure that the functional responsibilities within local government authorities be undertaken efficiently and effectively.

R.11 The Inquiry recommends that

all local authorities review existing arrangements for dealing with coastal zone management issues, using the models identified by the Integrated Local Area Planning approach.

8.49 The Commonwealth Government has established an interdepartmental committee to deal with its responsibilities in the coastal zone.

R.12 The Inquiry recommends that

the Commonwealth Government's interdepartmental committee dealing with coastal zone issues be established on a permanent basis and be named the Commonwealth Coastal Management Committee;

the Department of the Environment, Sport and Territories be the lead agency in coordinating the activities of this Committee.