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3 April 1997
I am pleased to address today the issue of future directions in Commonwealth responsibility for the environment. The division of Commonwealth/State responsibilities for environmental matters is an issue which I confront on a daily basis - in negotiating the delivery of the Natural Heritage Trust programs (such as the National Vegetation Initiative), ensuring appropriate management of world heritage areas, and in overseeing the environmental impact assessment of major projects.
The issue of defining the appropriate role for the Commonwealth in environmental matters is a topical one, given the review of Commonwealth/State roles and responsibilities for the environment currently being undertaken through the Council of Australian Governments (COAG). I will come back to this review later.
However, I think it is fair to say that defining the Commonwealth's role in environmental matters has been a topical issue since at least the early 1970's. One of the first major Commonwealth/State confrontations on the environment occurred in 1976, when the Fraser Coalition government effectively put an end to sand mining on Fraser Island. The then Queensland Government was far from impressed by Commonwealth interference in what it considered to be exclusively a State matter. As you will all be aware, the legitimacy of the Commonwealth's action was confirmed by the High Court in Murphyores v The Commonwealth.
Would it surprise anyone if I noted that even this decision was, at the time, condemned as an example of 'judicial activism', inspiring calls for a referendum to reverse the outcome?
During the 1980's, there were a series of further confrontations between the States and the Commonwealth in relation to the Commonwealth's role in environmental protection. In 1983, the World Heritage Properties Conservation Act was enacted to prevent the construction of the Gordon below Franklin Dam, which would have substantially destroyed the world heritage listed Western Tasmanian Wilderness National Parks. The ensuing High Court decision, gratefully received by law students because it is only a few hundred pages long, confirmed the extent of the Commonwealth Parliament's power to legislate to give effect to the growing number of environmental treaties.
Even young politicians were wrestling with these issues. A brief look at the Senate Hansard for 11 May 1983 reveals that a new Senator from South Australia stated in relation to the Franklin Dam issue:
"But when we have a unique national asset of outstanding universal importance it becomes a national asset. If it is to be preserved for all Australians, all Australians have to bear the cost. If a State government determines to destroy it, all Australians have the right to expect the national Government to take whatever legal action is open to it to preserve that asset."
Its very difficult when young politicians grow up to be Commonwealth Environment Ministers!
However, despite claims by some that the Tasmanian Dams decision would destroy the 'federal balance', the Commonwealth has clearly not relied upon the external affairs power to assume comprehensive control over the regulation of land management and environmental protection. Nor has it relied extensively upon the other heads of legislative power which could enable the Commonwealth to achieve environmental objectives - such as the corporations power.
Of course, as you will all be aware, the Constitution does not grant the Commonwealth Parliament plenary power to legislate with respect to the environment.
This is not surprising - the environment is simply not an issue that is dealt with in our Constitution. The closest that the Constitution comes to addressing an environmental issue is in section 100, which limits the ability of the Commonwealth to abridge the rights of a State or its residents to the reasonable use of waters of rivers.
A brief look at the Convention Debates will put this section in perspective. A Victorian participant in the Convention Debates stated, in relation to the Darling and Murrumbidgee rivers, that:
"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."
Clearly, at least some of our 'founding fathers' were not committed conservationists.
In contrast, Australia is now a world leader in recognizing the importance of environmental flows, having learnt - the hard way - from past mistakes in places such as the Murray-Darling basin. Programs such as Rivercare demonstrate just how far we have come since the drafting of the Constitution.
Our Constitution is a product of its time and, in the late 1890's, the environment was not a major issue. To the extent that the environment or land management was recognized as a distinct issue, it was certainly not regarded as an issue which required a specific grant of legislative power to the Commonwealth.
How might the environment be addressed if the Constitution was being drafted today?
The Parliamentary Library recently compiled for me a report identifying those nations which have provisions relating to the environment in their Constitutions. I was surprised to learn that over eighty nations have recently adopted Constitutions which include provisions relating to the environment.
In my view, there is no doubt an Australian Constitution drafted in the 1990's would expressly recognize a role for the Commonwealth Parliament in relation to the environment.
This sentiment is, of course, consistent with the Intergovernmental Agreement on the Environment (IGAE), which recognizes a role for the Commonwealth in environmental matters.
Precisely what role would be allocated to the Commonwealth in a Constitution drafted in 1997 is less clear - this is, in fact, a similar issue to that which is being addressed in the COAG review of Commonwealth/State roles and responsibilities.
It is clear that when the community thinks of major national responsibilities it now thinks of the environment as well as the economy.
And, as my previous examples demonstrate, the Commonwealth has accepted its responsibility for environmental matters notwithstanding the absence of a direct head of constitutional power. It is apparent that the Commonwealth does not need a distinct head of power relating to the environment - the contemporary interpretation of the available heads of power demonstrates that the Commonwealth has sufficient power to address environmental issues.
The need to protect the environment and to promote ecologically sustainable development is one of the greatest challenges faced by this generation.
Environmental issues such as the loss of biodiversity, climate change, pollution and land degradation are issues which need to be addressed globally, nationally, regionally and individually. In this context, it is self evident that the Commonwealth has a role to play in addressing environmental issues. However, the States, the local community and the individual also have critical roles to play.
The real issue is therefore not whether the Commonwealth has a role but how do we define that role to ensure that, in cooperation with the States, the best possible environmental outcomes are delivered.
The issue of precisely what is the appropriate role for the Commonwealth should not be allowed to degenerate into a turf battle between the States and the Commonwealth as may have occurred in the past. A new maturity is needed to ensure that the combined resources of the States and the Commonwealth are efficiently and effectively utilized to address the degradation of our environment.
As I have indicated earlier, the task of defining and implementing the appropriate role for the Commonwealth and the States is being addressed through the COAG process. The advantage of utilising the COAG process is that whole of government positions are brought to the negotiations, ensuring appropriate consideration of environmental, social and economic factors. However, it is important that Environment Ministers play a leading role and, for this reason, I have facilitated input from Environment Ministers through a parallel ANZECC process.
The Commonwealth's position in the COAG negotiations is that the Commonwealth's role should be focused on issues of national environmental significance. This is, I believe, consistent with the broad principles enunciated in the IGAE. It is also a role which, I believe, could be accommodated by the existing provisions in the Constitution combined with, where necessary, cooperative State legislation.
I acknowledge that defining the concept of 'national environmental significance' will not be straight forward. However, there are some issues which are clearly of national environmental significance - for example, the protection of internationally protected areas such as world heritage areas and Ramsar wetlands and the protection of internationally and nationally endangered species. Yet, the Commonwealth does not currently have the appropriate legislative or administrative capacity to adequately give effect to its role in relation to such matters. For example, the recent proposal to develop a major cotton project in Queensland, irrigated from the Cooper's creek, had the potential to damage the Ramsar-listed Coongie wetlands. However, notwithstanding its international responsibilities, the Commonwealth's environmental impact assessment legislation would not have been triggered by the proposal.
Conversely, the Commonwealth often becomes involved in matters which are clearly not of national significance. This happens because Commonwealth legislation - some of which is over twenty years old - is triggered in an ad hoc way by events which are not related to environmental significance - such as export controls or foreign investment decisions. To give you an example, Commonwealth assessment processes are triggered in relation to the development of a mine for which foreign investment approval is needed even if the mine raises environmental issues of only local significance. In my view, this should not occur.
In short, the Commonwealth is suggesting that it step back from areas of local or State significance but consolidate its involvement in matters of national environmental significance. Overall, the Commonwealth would be involved in fewer projects and matters. However, the quality of its involvement in matters of national environmental significance would be greater.
The benefits of this approach would be substantial and would include a more efficient and effective approach to environmental protection and so improved environmental outcomes. Importantly, the approach should deliver increased certainty about the timing and extent of Commonwealth involvement. In addition, there should be reduced duplication and an improvement in the efficiency of approvals processes.
The COAG process will also address accreditation issues, the integration of Commonwealth and State heritage regimes and Commonwealth compliance with State environmental laws.
Implementation of the outcomes of the COAG process will require amendments to Commonwealth legislation. Accordingly, I expect to formally initiate a review of Commonwealth environmental law by releasing a discussion paper on possible reforms in the second half of 1997.
The review will also pick up on the public consultation process being carried out by the Australian Heritage Commission on possible reform of the Australian Heritage Commission Act. The options being canvassed by the Commission include focussing Commonwealth involvement in heritage protection on natural and cultural heritage of national significance. Commonwealth involvement in protection of indigenous heritage raises complex issues beyond the scope of my address today. These issues are addressed in the Evatt review of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act.
A key objective of the Review will be to improve the level of protection for the environment. Much of the Commonwealth's legislation is twenty years old and no longer reflects best practice - it must be amended to incorporate the principles of ecologically sustainable development and address in an integrated way the Commonwealth's global and national responsibilities.
The Commonwealth's existing environmental legislation largely reflects a first generation approach to environmental protection - for example, it provides for national parks management but does not address off-reserve conservation of biodiversity. The Review will need to ensure that Commonwealth environmental legislation embraces contemporary approaches to environmental protection including off-reserve conservation, environmental auditing and the use of economic instruments.
The Review must also reduce duplication, improve certainty for proponents and increase the efficiency of approvals processes.
I look forward to NELA's contribution to the process of reviewing Commonwealth environmental law. As a national, multi-disciplinary association dealing with environmental law, I expect your views will be particularly valuable.
I would like to conclude by referring again to the absence from our Constitution of any reference to the environment. In contrast, the recently drafted Constitution of the Republic of South Africa deals explicitly with the environment. It is worth quoting the relevant clause from its Bill of Rights:
Everyone has the right -
(a) to an environment that is not harmful to their health or well being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
This is a vision which I share. It is also a vision which, notwithstanding the absence of our own Bill of Rights, we will realise. We will realise such a vision through processes reflecting our own constitutional and jurisprudential history and through governments and individuals accepting the obligation to respect the integrity of our environment and the need to protect it for future generations.