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Senator the Honourable Robert Hill
Federal Minister for the Environment

Australian Centre for Environmental Law Third Outlook Conference, 9 October 1997: opening address


Sydney
9 October 1997

Thank you for inviting me to open ACEL's Third Environmental Outlook Conference.

I am pleased that this Conference will address issues relevant to the COAG review of Commonwealth/State roles and responsibilities for the environment and the related review of Commonwealth environmental law. In my address this morning, I would like to initiate discussion on these issues by outlining some of my thoughts on the reform of Commonwealth environmental law.

My first observation is that the Commonwealth's environmental law regime is undoubtedly in need of reform. Several key statutes were enacted over twenty years ago and have not been substantially amended since. As you will all appreciate, our understanding of the environment - and our impact on the environment - has changed dramatically during this time. Consider the following two anomalies: firstly, key Commonwealth statutes, such as the Commonwealth's environmental impact assessment Act, do not expressly recognise the principles of ecologically sustainable development (despite the fact that the nations of the world have come together twice during the last five years to pledge their collective commitment to these principles); and, secondly, a substantial body of Commonwealth environmental law, including the Commonwealth's national parks legislation, was drafted ten years before the term 'biodiversity' was widely used.

In my view, the case for reform is a compelling one. We need now to identify the objectives of the reform process. My preliminary view is that, at a very broad level, the reform of Commonwealth environmental law needs to pursue two objectives:

1. Firstly, amendments are required to establish a legislative framework which reflects an appropriate role for the Commonwealth in environmental matters. A review of Commonwealth/State roles and responsibilities for the environment is currently being undertaken through COAG. At a macro level, an objective of the legislative reform process will therefore be to translate the outcomes of the COAG review into a conceptually sound legislative framework.

2. Secondly, within this new legislative framework, the Commonwealth must be able to discharge its responsibilities in an effective and efficient manner. Commonwealth environmental law must integrate our environmental, economic and social goals and so promote ecologically sustainable development. It must deliver better environmental outcomes, and it must do so in a manner that promotes certainty for proponents and minimises any potential for unnecessary delay or duplication.

I hope that the outcomes of this Conference will contribute to the review process by helping to define objectives and by exploring options for implementation. Before your work begins, I will expand a little on my views.

The Commonwealth's Role - Implementing the COAG outcomes

At the NELA conference in April this year, I outlined in some detail the Commonwealth's position in the COAG negotiations. In summary, the Commonwealth believes its role should be focused on matters of national environmental significance. The Commonwealth should not be involved in matters of only local or State significance. This is, I believe, consistent with the broad principles enunciated in the InterGovernmental Agreement on the Environment - principles which have not yet been fully implemented.

In my address to NELA, I nominated the protection of internationally protected areas (such as world heritage areas and Ramsar sites) and the protection of internationally and nationally endangered and vulnerable species as examples of matters of national environmental significance. However, the Commonwealth does not currently have the appropriate legislative capacity to adequately discharge its responsibilities for these matters. A project which will have a significant impact on a Ramsar site does not, for example, trigger the Commonwealth's environmental impact assessment legislation. Accordingly, reforms to Commonwealth legislation are required to ensure the Commonwealth can discharge its responsibilities for matters of national environmental significance.

Conversely, under existing legislation the Commonwealth does become involved in development proposals which raise issues of only local or State significance. This is because Commonwealth involvement in environmental issues is currently triggered in an ad hoc manner by Commonwealth decisions that are not related to environment criteria - such as foreign investment approvals and funding decisions. So, for example, Commonwealth legislation is triggered in relation to the development of a mine for which foreign investment is required even if the mine raises environmental issues of only local significance. Reform is necessary to ensure the Commonwealth is not involved in such cases.

Relying upon ad hoc and indirect triggers, such as foreign investment decisions, contributes to unnecessary delays in the development approvals process, creates uncertainty for proponents and may create unnecessary duplication of Commonwealth and State processes. Reforms which proscribe Commonwealth involvement by reference to a precise definition of national environmental significance will substantially address these deficiencies.

For matters of national environmental significance, reforms should also seek to maximise the potential for Commonwealth reliance on State processes and, in some cases, State decisions. This will require legislative amendments to establish a transparent, accountable and certain framework within which Commonwealth accreditation of State processes (and vice verse) can occur.

The Commonwealth is pursuing, through COAG, reforms which will deliver better environmental outcomes for Australia. By focussing its legislative attention on matters of national environmental significance, the Commonwealth will be better equipped to contribute to improved environmental management and protection of world heritage areas, Ramsar sites, nationally endangered species and other identified matters. Importantly, the Commonwealth's approach will also deliver a more efficient and certain framework for business.

Bringing Commonwealth Environmental Law into the 21st Century

The initial challenge in reforming Commonwealth environmental law is therefore to establish a conceptual framework which focuses Commonwealth legislation on matters of national environmental significance. However, the challenge at the micro level is to ensure that, within this framework, the Commonwealth's environmental law regime works effectively and efficiently to promote ecologically sustainable development.

The current suite of Commonwealth legislation developed in a fragmented way. It does not adequately equip the Commonwealth to address current and emerging environmental issues, nor does it embrace the full range of contemporary approaches to environmental management. Basic principles such as the precautionary principle and the principle of intergenerational equity are generally not recognised. Such omissions need to be remedied.

The reform process must critically reappraise existing regulatory strategies. There are a range of policy approaches available to assist in achieving environmental goals - these include a 'command and control' regulatory approach (the lawyer's favourite), market based approaches (the economist's choice) and voluntary measures (industry's favourite). Within each broad approach there are a variety of instruments - for example, a market-based approach could involve the use of economic instruments such as covenants, individually transferable rights, levies or taxes.

Reliance upon a single approach or single instrument will not work. Voluntary approaches build community support and economic instruments help correct the market failures which lead to environmental degradation - however, neither will operate effectively in the absence of a regulatory safety net. A new Commonwealth law regime should therefore promote the use of an optimal combination of instruments.

In summary, we need a package of reforms that will transform the existing Commonwealth environmental law regime into a dynamic and flexible system that promotes ecologically sustainable development, which is equipped to deal with current and emerging environmental issues and which embraces contemporary approaches to environmental management.

In giving effect to these broader aspirations, I believe the legislative reform package should focus initially on three key areas:

  1. biodiversity conservation;
  2. environmental protection, including environmental impact assessment and approval; and
  3. heritage protection.


Biodiversity

Perhaps the greatest environmental challenge facing our society today has been stated by Edward O Wilson with absolute clarity:

"The one process now going on that will take millions of years to correct is the loss of species and genetic diversity by the destruction of natural habitats. It is the folly our descendants are least likely to forgive us."

Biodiversity is essential for the maintenance of human life on earth because it supports the life-sustaining processes that purify our water, fertilise our soils and manage our climate. In addition, irrespective of any utilitarian benefit to humankind, many people would recognise an ethical obligation to protect biodiversity. Australia, as the only developed nation that can be characterised as 'mega-diverse', bears a special responsibility to protect biodiversity.

For this reason, the protection of biodiversity is one of the goals of the Natural Heritage Trust. It must also be a focus of the review of Commonwealth environmental law.

There are several existing Commonwealth statutes that are directly relevant to biodiversity conservation - - in particular, the Endangered Species Protection Act 1992, the National Parks and Wildlife Conservation Act 1975 and legislation giving effect to the CITES Convention. Each of these Acts needs to be examined to identify amendments that need to be made to enhance our ability to protect biodiversity.

The Commonwealth will also consider integrating each of these statutes within a new Biodiversity Conservation Act. The Howard government could, therefore, be the first Australian jurisdiction to enact such biodiversity legislation.

A new Biodiversity Conservation Act would not be a mere compilation of existing legislation. It could also contain provisions discharging Australia's obligations under international treaties for the protection of migratory birds (eg, JAMBA) and other migratory species (Bonn Convention), as well as whales. In addition, other provisions could integrate the objectives of a Biodiversity Conservation Act with the Commonwealth's environmental impact assessment legislation and with relevant programs under the Natural Heritage Trust.

It is important to signal that, while I believe the Commonwealth has an important role to play in protecting biodiversity, it does not intend to assume land management responsibilities that are more appropriately the province of State governments. Commonwealth biodiversity legislation and corresponding State laws should be mutually supportive.

In assessing the options for biodiversity conservation, we should consider whether there are lessons to be learnt from the operation of the United States Endangered Species Act and other similar legislation. The operation of the US Act, and the debate over its re- authorisation by the US Congress, raises many issues relevant to any Australian biodiversity legislation. Consider the following issues which are the subject of intense debate in the US - what is the most effective mix of instruments to achieve off-reserve biodiversity conservation, what role should voluntary conservation agreements and/or compensation play in promoting protection of biodiversity on private land, how do we ensure that 'cute' species do not achieve protection at the expense of less charismatic species, what is the appropriate role for the community in listing decisions and in development assessment and approvals processes, how do we balance adverse impacts on biodiversity against socio-economic considerations? Perhaps the single most significant issue involves deciding how to effectively and equitably achieve protection of eco- systems, rather than focusing only on endangered and vulnerable species. In this respect, we already have valuable provisions relating to endangered ecological communities and key threatening processes in our existing Endangered Species Protection Act.

Environmental Impact Assessment and Approval

The Commonwealth's environmental impact assessment legislation - the Environment Protection (Impact of Proposals) Act 1974 - is perhaps the statute which could benefit most from reform.

As I indicated earlier, it is envisaged that the Commonwealth's environmental impact assessment legislation will be amended so that it is no longer triggered by environmentally irrelevant decisions such as funding decisions. Instead, it should be triggered by environmentally significant projects which affect matters of national environmental significance. For example, an environmentally significant project occurring in a world heritage area (such as a tourist development) would trigger the Commonwealth's environmental impact assessment legislation, irrespective of whether FIRB approval or some other Commonwealth action is required.

This represents a fundamental change to the Commonwealth's environmental impact assessment regime. Many projects which currently trigger the EPIP Act will no longer be subject to Commonwealth environmental impact assessment. However, some projects which would not currently trigger the EPIP Act will be potentially covered by an amended Commonwealth environmental impact assessment law.

Amendments to Commonwealth environmental impact assessment legislation should also provide a transparent statutory mechanism for accrediting State processes and, in some cases, State management plans. For projects that trigger Commonwealth legislation under the national environmental significance test, there should be a capacity for up- front Commonwealth accreditation of a corresponding State process (and vice verse). While, the Commonwealth will only accredit State processes that meet agreed standards, there will be significant scope for reliance on State processes.

Action in accordance with accredited State management plans need not trigger Commonwealth environmental impact assessment. For example, if a State management plan for a world heritage area meets the requirements of the Commonwealth then a project conducted in accordance with that agreed management plan should not trigger Commonwealth environmental impact assessment. Instead, environmental impact assessment should be carried out in accordance with the provisions of the management plan.

Reforms to Commonwealth environmental impact assessment law will be accompanied by a new development approval process which will deliver major benefits to industry in terms of efficiency, certainty and timeliness. These reforms can be delivered without compromising the level of environmental protection. Features of the new development approval process should include:



Protection of Heritage Places

I believe the third key area of reform should be heritage protection. In the time available, I will address this topic only briefly.

Currently, there are approximately 11,600 places listed in the national estate under the Commonwealth's Australian Heritage Commission Act 1975 ('the AHC Act'). Yet the Commonwealth has no real legislative ability to protect these places.

In many cases, the responsibility for protecting these places should lie appropriately with the States and Territories. However, some of these places are clearly significant to the entire nation and one option to ensure their protection is to create a national list of places over which the Commonwealth has greater protective powers. Places on the national list would preferably be managed and protected under accredited State management plans.

The Commonwealth is committed to establishing a National Heritage Places Strategy in co-operation with the States, local government and the community. The Strategy would set national standards for identifying, listing, managing and protecting heritage places. Responsibility for national estate places that do not qualify for a new national list of heritage places could be devolved to States and Territories as each jurisdiction implements a heritage regime consistent with the National Heritage Strategy.

Conclusion

I have previously indicated that I would release, in the second half of 1997, a discussion paper on the review of Commonwealth environmental law. This paper is currently being prepared and will be released, preferably after COAG has concluded its review process but, in any event, before the end of 1997.

I note that industry groups and environment NGOs have made submissions to the COAG process. Your input was appreciated and has been valuable in developing positions on key issues. I look forward to your input on the review of Commonwealth environmental law - in particular, the areas of biodiversity conservation, the environmental impact assessment and approval process, and heritage protection.

Commonwealth of Australia