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100 years of Federation - Where to from here?
An Environmental Perspective

Senator the Hon Robert Hill
Minister for the Environment and Heritage

Address to the Environment Institute of Australia
National Conference (2000)
7 December 2000

A quarter of a century ago, the Australian National University hosted a seminar with a similar theme to this year's Environment Institute of Australia Conference.

That seminar was titled: 'Environmental Law: The Australian Government's Role'. We have been debating the issues ever since.

That seminar in 1974 was opened by the then Attorney-General Senator Lionel Murphy QC. At one point in his opening address Murphy referred to 'the explosion that is about to occur in our environmental law'. He was, of course, referring to what I describe as the first generation of Commonwealth environmental law:

The enactment of these first environment statutes by the Commonwealth Parliament was a pivotal moment in the development of our Federation, at least in terms of its response to the environmental challenges faced by Australia.

An equally historic initiative - often overlooked - was the appointment in 1971 of Australia's first ever Commonwealth Minister for the Environment. The Hon Peter Howson MP was appointed by Prime Minister Billy McMahon as Minister for the Environment, Aborigines and the Arts in May 1971.

Before that, Prime Minister John Gorton had proposed to the States that an Australian Environment Council be formed. Would it surprise anyone to learn that this initiative was blocked by the States, particularly Victoria and NSW?

I mention these early events because, from an environmental perspective, they represent early signs that, within the framework of our Federation, the Commonwealth Government would respond to the community's growing concern for environmental issues.

There is not a lot to discuss in relation to the first 70 years of Federation. Our Constitution, as you are all aware, does not grant the Commonwealth Parliament plenary power to legislate with respect to the environment. This simply reflects the fact that the environment was not an issue in the late 19th Century.

I have noted previously that one participant in the Convention Debates of the 1890's stated in relation to the Darling and Murrumbidgee rivers:

"Australia would be the gainer if every drop of water were taken out of those rivers for irrigation and conservation, and the river beds were dry."

This particular participant was a Victorian. These days you would be forgiven for assuming he represented a State that is a little further to the north.

Clearly, if the Constitution was being drafted today there would be a reference to the environment. From Burkina Faso to Uzbekistan, almost every Constitution drafted in the last twenty years deals with the environment.

In any event, in the absence of an express Constitutional reference to the environment, the enactment of the four 'first generation' Commonwealth laws more than 70 years after Federation was ground-breaking.

However, despite Murphy's prediction of a flood of new laws dealing with the environment, the development of Commonwealth environmental law largely stalled for the two decades after 1975.

By 1996, the four statutes that Lionel Murphy referred to in 1974 were still in force, largely unamended and hopelessly out of date. As a result, the Commonwealth had virtually no capacity to effectively address environmental issues of national significance. In addition, when Commonwealth legislation was triggered, the result was an inefficient and unfriendly process for proponents.

In response, the Commonwealth government has since 1996 embarked on an ambitious and, to date, successful reform agenda. The goal is to ensure that Australia is well equipped to meet the environmental challenges of the 21st century.

I think it is fair to say that we have transformed Federal environmental law. In terms of our Federation and the environment, it has been an era of significance matched only by the early-mid 1970's.

For the purposes of this address, I will focus on what has been achieved - and what we hope to achieve - in terms of environmental law reform. However, several of the government's non-legislative initiatives must also be regarded as significant in terms of our Federation's approach to environmental issues. The Prime Minister's National Action Plan to tackle salinity and water quality - Australia's first truly national plan to address these issues - is one example.

The centrepiece of our law reform program has been the passage of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The EPBC Act has been applauded by international experts. It has been described by one leading Australian conservation group as 'the biggest legislative win for the environment in 25 years'. Even the IUCN - with whom we have had our differences - have advised that the world heritage provisions in the Act are a model for other countries.

Most importantly, the EPBC Act is also user-friendly. It establishes an assessment and approval process that provides certainty and that is governed by tight time frames.

The most significant reform associated with the EPBC Act is the introduction of direct environmental triggers - matters of national environmental significance. These triggers replace the previous indirect (environmentally irrelevant) triggers - such as foreign investment approval - which formed the basis of legislation such as the EPIP Act.

The matters of national environmental significance identified in the EPBC Act were agreed by all States and Territories through the Council of Australian Governments - demonstrating the capacity of our Federation, after 96 years, to adopt a fresh approach to the role of the Commonwealth in environmental matters.

The use of direct environmental triggers by the Commonwealth offers benefits for the environment, for governments and for industry. While it may have taken nearly a century, the decision to use direct environmental triggers establishes a framework for the future which will enable the Commonwealth to demonstrate national leadership on the environment in a manner that also respects the role of the States in delivering on-ground management.

Another feature of the Act is the robust framework it provides for Commonwealth-State cooperation in relation to the environmental assessment and approval process.

For over 20 years, the Commonwealth has been 'accrediting' State assessment processes in an inefficient and ad hoc manner. This 'accreditation' has had no legislative underpinning and has occurred on a case-by-case basis, resulting in significant uncertainty for government and proponents. There has been no scope for community input on accreditation decisions.

Now, through bilateral agreements, such accreditation will occur in a secure and transparent manner. Best practice criteria for accreditation have been set out in regulations, after taking into account public comments. State processes meeting these criteria can be accredited 'across-the-board', avoiding the need for case-by-case review. The benefits are profound:

The EPBC Act has now been in force for around 4 months. I am pleased to report that the transition to the new regime has been a smooth one. 17 actions have triggered the Act to date. These include infrastructure development in a Ramsar wetland, proposed clearing of a threatened ecological community for a residential subdivision, and the flooding of habitat for an endangered species.

Decisions are being made in a timely and transparent manner. Assessments under the EPBC Act are being effectively integrated with State processes, avoiding delay and duplication.

In addition, draft bilateral agreements with all jurisdictions have been released for public comment. I expect to enter into the first bilateral agreements in the near future.

As I indicated earlier, perhaps the greatest strength of the EPBC Act is that it provides the statutory architecture within which the Commonwealth and States, in partnership, can address emerging environmental priorities into the future.

In this respect, I am pleased to announce that legislation to reform the Commonwealth's heritage regime, including amendments to the EPBC Act, will today be introduced into the Senate.

In 1975 the enactment of the Australian Heritage Commission Act 1975 (AHC Act) represented an important step in demonstrating Commonwealth leadership in relation to heritage conservation. Within this framework, the Australian Heritage Commission has performed its role with distinction over the last 25 years. But the need for reform is now compelling.

The Register of the National Estate, maintained under the AHC Act, now contains over 13,000 places. Some of these places are of national heritage significance, but many should properly be regarded as places of State or local significance. As a result of these 13,000 entries, the Commonwealth is often involved in matters that are not appropriately the responsibility of a national government.

It is also important to recognise that the AHC Act provides no substantive protection for heritage places of national significance. The limited procedural safeguards in the AHC Act fall well short of contemporary best practice in heritage conservation.

While the AHC Act pioneered the identification of heritage, the States and Territories have since introduced heritage protection legislation. The AHC Act fails to recognise and accommodate the development of these State regimes.

All of these factors combine to produce a regime that involves unacceptable duplication and delay and which creates confusion in the community about the respective roles of different levels of government.

The reform package introduced into the Senate will give effect to the outcomes of the 1997 Council of Australian Governments (COAG) Agreement on Commonwealth/State Roles and Responsibilities for the Environment. COAG agreed on the need to rationalise existing Commonwealth/State arrangements for the identification and protection of heritage places. In this context, COAG agreed that the Commonwealth's role should be focussed on places of national heritage significance.

Consistent with the COAG Agreement, the Heritage Bills introduced today will establish a mechanism for the identification of heritage places of national significance. Such places will be inscribed on a National Heritage List. This List will consist of natural, historic and indigenous places that are of outstanding national heritage significance to the nation as a whole.

The listing process will be open and transparent and will include a mechanism for consideration of public nominations. Most importantly, the Minister will be guided in his or her decision-making by advice from an independent body of heritage experts - the Australian Heritage Council - established as a separate statutory authority.

Places on the National List will be identified under the EPBC Act as a matter of national environmental significance. This will ensure that, for the first time ever, heritage places of truly national significance receive appropriate statutory protection.

With the repeal of the AHC Act, the Register of the National Estate will no longer be a statutory register. However, the information on the Register will continue to be publicly available as a heritage information resource.

Through the reforms, the Commonwealth government is demonstrating ongoing national leadership in relation to heritage conservation. There is a range of other initiatives that we are pursuing in parallel with the proposed heritage reforms. I will mention some of these briefly today.

Greenhouse: Draft regulations defining a greenhouse trigger under the EPBC Act have been provided to the States for comment. A decision on a possible greenhouse trigger will be made by the Federal government after considering comments from the States, and the input of industry and the community. The trigger being considered has been designed to ensure that an adequate environmental assessment is carried out for new developments that are major emitters of greenhouse gases. The assessment would address matters such as the extent of likely emissions and whether the project design represents 'best practice'.

Wildlife trade: In the first half of next year, I propose to introduce legislation which will incorporate existing wildlife trade laws into the EPBC Act. As our laws already implement fully the CITES Convention, I do not anticipate major policy changes. The primary purpose of the reforms will be to simplify existing provisions, and increase the emphasis on biodiversity and animal welfare considerations.

Access to Biological Resources: I will also be releasing for public comment draft regulations under the EPBC Act dealing with access to biological resources in Commonwealth areas. The regulation of access to biological and genetic resources, including the regulation of bioprospecting activities, is one of the most important environmental issues for the next decade.

I would like to close by making a few general comments about what will be required to address the environmental challenges we will inevitably face in the future.

I have focussed today on the development of Commonwealth environmental law. I could easily have focussed on other mechanisms for influencing individual and corporate behaviour. For example, economic instruments could be employed and government programs implemented. All of these mechanisms have their place, but they also have limitations.

Ultimately, what is required is the development of a stronger ethical approach to the environment. If a relationship between humanity and the natural environment is to develop which safeguards the future of both, then our laws and programs need to be supplemented by an ethical framework that places greater emphasis on ecological sustainability.

The argument for such an environmental ethic is compelling.

Our survival as a species depends upon the protection of our environment, and the continuation of the planet's natural life-support systems. We cannot replicate these systems. It is, for example, reckless to assume that we can continue to diminish biodiversity without ultimately threatening humanity itself.

But even if we could replicate the planet's natural life support systems, we still need the environment and, particularly, the other species with which we share the planet.

"Only in the last moment of human history has
the delusion arisen that we can flourish apart
from the rest of the living world."

Edward O Wilson
Commonwealth of Australia