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Commonwealth Must Retain Its Responsibility

By Rob Fowler - posted Thursday, 15 July 1999

The Environment Protection and Biodiversity Bill was passed by the Commonwealth Parliament at the end of June, with some 511 amendments and new clauses added at the very last moment as a result of negotiations between the Government and the Australian Democrats. The Bill may not become law for another 12 months, however, whilst various regulations and agreements which it contemplates are developed.

By far the most contentious aspect of the Bill is the effect it may have in the future on Commonwealth involvement in environmental matters. Until now, Commonwealth involvement in the assessment and approval of projects has been relatively ad hoc as it has depended on whether some other type of approval is required from the Commonwealth. For example, export approval for minerals or woodchips has been a common trigger for Commonwealth environmental assessment. Foreign investment approval has also served as a regular trigger in the past, especially for tourism projects. All this will change in the near future.

The Bill introduces a new scheme for the assessment and approval of various "activities" that involve "matters of national environmental significance". The list of such activities includes those that will impact on a World Heritage property, or on wetlands identified as having international significance, or on listed threatened species, ecological communities or migratory species. It also covers nuclear actions and activities involving the marine environment. Whilst the list is quite limited, and excludes for example land clearance, a wide range of forestry activities and greenhouse-related actions, there is nevertheless a broader and more appropriate basis for Commonwealth involvement in environmental approvals than at present.


The practical operation of the new scheme however could be quite different in that the Commonwealth may hand over to the States the bulk of its assessment and approval responsibilities under the new legislation. This is because the Bill also provides for the making of bilateral agreements between the Commonwealth and the States under which the Commonwealth can "accredit" State processes for environmental assessment and approval. By this means, the Commonwealth can effectively hand back to the States the full responsibility for the consideration of activities which involve the listed matters of national environmental significance. In other words, the Commonwealth could in the near future completely withdraw from the field of environmental assessment and approval of projects as significant as sand-mining on Fraser Island or the Franklin dam by executing a series of bilateral agreements with the States.

The amendments to the Act which were agreed by the Democrats and the Government have not eliminated this possibility, despite the claims of their authors to the contrary. The amendments have added another procedural hoop to the already complex process for producing bilateral agreements, by requiring management plans to be produced and tabled in the Commonwealth Parliament - where they could possibly be rejected. But this procedural step will leave the States in charge of the final decision where accreditation has been provided by the Commonwealth under a bilateral agreement. If a State exercising accredited approval powers concludes that it is acting consistently with Australia’s obligations under the World Heritage Convention in approving a mine or a dam in a World Heritage area, there is a serious prospect that such a decision would not be able to be legally challenged or reversed.

It is unlikely that the Commonwealth will be able to ensure sound outcomes from State approval processes through reliance on management plans, in whatever form they may take. Such plans cannot completely dictate all possible outcomes when States make development decisions. They are guidelines, and no more than that, and their legal effect on State laws remains unclear under the amendments introduced at the last moment.

There is no persuasive or credible rationale for this approach. It reflects political accommodations reached largely behind closed doors in recent years by the Commonwealth and the States out of a perceived mutual interest in excluding the Commonwealth from active involvement in environmental decision-making. The States could be left free to pursue their own economic development agendas and the Commonwealth would be freed then from the burden of making decisions of an often difficult and controversial nature.

On the other hand, there are very strong reasons for having the Commonwealth continue its involvement in major project approvals. Firstly, it is the Commonwealth which has to honour the international obligations it has assumed across a wide range of matters concerning the environment. Secondly, the contribution of a national perspective in relation to major projects proposed at the State level is often critically important. States are frequently promoters of major projects and espouse development goals vigorously, even to the extent of competing with each other to attract development. There is a greater likelihood of fair and objective decision-making at the Commonwealth level. Thirdly, the public expects that the responsibility for the grant of environmental approvals where matters of national significance are involved should remain firmly in Commonwealth hands – this has been reflected in opinion polls repeatedly in recent years.

It is difficult to understand why the Democrats endorsed this approach, unless they simply failed to understand the legal and political implications of their own amendments. It defies belief that the Democrats also colluded with the government to keep secret some 511 amendments to the legislation, then gagged all debate on them in the Senate in order to procure the passage of the Bill in just over 24 hours.


The end result is likely to be greater uncertainty and heightened conflict across Australia in relation to environmental decisions - precisely what the Act was supposed to avoid. Litigation to challenge State decisions as being in conflict with the relevant management plan could become a common practice. There certainly is little prospect of either the government or the Democrats being accorded any environmental kudos for having adopted what will prove to be fundamentally flawed legislation.

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About the Author

Associate Professor Rob Fowler teaches in the Faculty of Law at the University of Adelaide and is the Director of the Australian Centre for Environmental Law (Adelaide).

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