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Senator the Honourable Robert Hill
Minister for the Environment and Heritage


"A New Green Agenda" Conference: Opening Address
14 October, 1999

Thank you very much for the welcome. I appreciate the invitation to be here to open the Conference and to briefly set the scene. Unfortunately I should apologise in advance that I can't stay. I have to go along and open an Environmental Trade Exhibition - the other side of the environment - and then race back to Canberra. Your Conference is important from our perspective, so that's why I appreciate the invitation. You titled it the 'New Agenda' and you say in your publicity that you see it as a conference on the Commonwealth's environmental legislation, and you put it in terms of what has been an interesting and ongoing debate, and that is whether our new legislation reflects an appropriate division of powers between the Commonwealth and the States. There is nothing wrong with that debate continuing; it should in fact continue in terms of wrestling with the issue of what is the appropriate mix of State and Commonwealth responsibilities, and how they should be implemented both in law and in practice.

But whilst that debate should continue, for I think the next short while anyway, what is more important is the second part of your brief, which is really how the new legislation will work and how it will be made to work, and the processes that are going to take place between now and its commencement in July of next year, and then how it can be used effectively thereafter to achieve better environmental outcomes. So, I'll say a few words on the first of your two issues, but I wanted to concentrate on the second, which I think will hopefully be more useful for you.

In terms of the division of power between the Commonwealth and the States, the legislation is by far the most significant piece of environmental legislation enacted by the Commonwealth Parliament. For the first time the environmental responsibilities of the Commonwealth in terms of assessment and approval processes have been finally recognised in legislation. After July next year the Commonwealth legislation with rely on direct environmental triggers, and not the ad hoc and ineffective triggers, such as foreign investment approval, relied upon by existing law. We believe that this reform, the replacement of indirect triggers with direct environmental triggers, will deliver substantial benefits for the environment, the community and for industry. The direct environmental triggers are of course referred to as matters of national environmental significance. These triggers are world heritage properties, Ramsar wetlands, nationally threatened species and ecological communities, migratory species, Commonwealth marine area and nuclear actions. The Government is also committed to consulting State Government, industry, environmental groups and the community at large on the issue of a greenhouse trigger as an additional specified area of national environmental significance. We are also committed to amending our new legislation to include provisions dealing with the assessment of environmentally significant releases of genetically modified organisms, and we'll do that in conjunction with the new regulatory environment that's been developed for GMOs. We'll change our environment law to complement that.

Of course the new legislation provides also for additional matters of environmental significance to be added in the future by regulation, after consultation with the states. So, to some extent, it will be an evolving situation reflecting community attitudes and what really is seen as the best and most appropriate mix at the time. In terms of the provision of powers reflected in the new legislation the debate is largely focussed on two issues: whether there are too many or not enough, and whether there should be fewer triggers or whether there should be additional triggers. And of course, the other area of significant debate has been whether the Commonwealth should be able to delegate to the States the responsibility for conducting assessments and in limited cases making approval decisions for the Commonwealth. I presume that the latter will be debated in some detail today.

My experience to date has been, and I guess it will be repeated again today, that the representatives of industry and State Governments will argue that the triggers of the EPBC Bill represent, if anything, an extension of the Commonwealth's powers in relation to the environment. Perhaps they will also argue that the Act provides for a strengthening of the role of the Environment Minister. In fact I notice that the Local Government Association of Queensland issued a press release two days ago saying it was a Commonwealth takeover of all their functions! On the other hand I am equally confident that representatives of environment groups will argue today, as they have in the past, that the new legislation is an abdication of Commonwealth power and tips the balance too far in favour of the States. The suggestion will be put to you by representatives of these groups that additional matters of national environmental significance should have been included in the new legislation, and the Commonwealth should never be able to delegate responsibility for certain matters to the States.

So it probably won't surprise you when I say think we've got the balance about right. In my view the new legislation provides for Commonwealth leadership on environmental matters and respects the primary role of the States in relation to on-ground natural resource management. State agencies and areas of local governments are clearly the best places to write on ground delivery of environmental management, with both the practical expertise and the experience of local conditions. There is however also a critically important role for Commonwealth. The Commonwealth is ultimately responsible for ensuring that Australia meets its international environmental responsibilities and in our view must also demonstrate leadership on environment matters by, for example, working with the States to set national standards. The EPBC Act recognises the need for Commonwealth leadership and the reality that on-ground delivery should be carried out as far as possible by the States. It allows this carefully balanced partnership between Federal and State Governments to be expressed through bilateral agreements. Under these agreements responsibility for certain matters may be delegated to the States subject to various safeguards contained within the new legislation and other safeguards identified in regulations under the Act. Under this model the Commonwealth and the community can be confident that the matters of national environmental significance are being protected by processes we believe meet best practice.

In my view, because it reflects an appropriate division of powers between the Commonwealth and the States, and because it contains numerous other significant advances, the new legislation represents an enormous improvement in the Commonwealth's environmental law regime. It will enhance the protection of the environment and promote the development of nationally consistent standards; it will reduce intergovernmental duplication, and it will provide a more timely and efficient assessment and approval process for proponents. I am pleased to say that a wide range of commentators, internationally and nationally, have supported my assessment of the Act. However, I suspect that some speakers today will dispute my view, and argue about the merits of the legislation. As I said at the outset, I think that - an interesting debate though it might be - it is really time to move on.

The new legislation enters into force on 16 July of next year, a date which is fast approaching. My view therefore is that today's conference will achieve more by focussing on the issue of how the EPBC Act will work in practice. How the new Act works in practice will to a significant extent depend on the nature and contents of the bilateral agreements to which I've just referred. Other instruments such as the guidelines on when the impact on a matter of national environmental significance should be considered significant, will also be important in determining the practical implications of the Act.

I'm pleased therefore today to be releasing a Consultation Paper addressing the development of bilateral agreements and guidelines on significance, together with proposals for the content of regulations dealing with key steps in the environmental impact assessment process. The Consultation Paper discusses in some detail the Commonwealth's proposed approach to the development of bilateral agreements under which state assessment processes will be accredited. It therefore sets out, amongst other things, what I would describe as benchmark criteria for assessment processes. A State process can be accredited only if it meets these benchmark criteria. The benchmark criteria deal with matters such as the level and the scope of environmental assessments, the transparency of the assessment process, and the need for appropriate levels of public consultation and input. Public comments on the paper will be considered before assessment bilaterals are drafted with the States, although our negotiation with the States has commenced. Draft bilateral agreements will then be published in order to seek further public comment.

The Consultation Paper does not deal with approval bilaterals, that is, bilateral agreements under which State approval decisions can be accredited. The Commonwealth has always indicated that it will consider delegating responsibility for making approval decisions only in limited circumstances. The EPBC Act reflects this position by including strict safeguards in relation to approval bilaterals. The Commonwealth intends initially to focus its resources on the development of assessment bilaterals rather than approval bilaterals, and this is reflected in the Consultation Paper released today.

There are a whole range of other matters that will be addressed between now and the commencement of the new legislation in July of next year. As I indicated earlier, I proposed to release a Consultation Paper on the issue of approving a greenhouse trigger before the end of this year. That is, release the Consultation Paper before the end of this year, when we will seek public input, and then obviously, pursuant to our obligations in the legislation, and of discussions with the States. The government is also committed to developing, as I said earlier, amendments to the legislation to incorporate provisions dealing with the assessment of proposed releases of genetically modified organisms. Related to the Act, an inquiry will be initiated in relation to issues associated with access to biological resources. Also on the agenda are proposals to reform legislation implementing our CITES obligations, reforms to Heritage Legislation, and the issue of Commonwealth compliance with State laws. There will therefore be a whole range of developments over the next six to nine months associated with the implementation of the EPBC Act and its future development. There will be numerous opportunities for stakeholders to contribute to these developments. I therefore urge you to spend, as I said, as much of today as possible looking forward, focussing on how the Act will work in practice, and what sort of contributions you might wish to make over the coming months.

Mr Chairman, thank you again for inviting me to open your Conference. I think I regard it as important conference from our perspective as we take steps towards the implementation of the new law, and I look forward to positive input that you might be prepared to provide to that objective over the coming months. It has been a pleasure opening your Conference and I wish you well.

Commonwealth of Australia