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    Official Committee Hansard


Reference: Environment Protection and Biodiversity Conservation
                          Bill 1998

              THURSDAY, 4 MARCH 1999


                     BY AUTHORITY OF THE SENATE
The Proof and Official Hansard transcripts of Senate committee hearings,
some House of Representatives committee hearings and some joint committee
hearings are available on the Internet. Some House of Representatives
committees and some joint committees make available only Official Hansard
         The Internet address is:

                                           Thursday, 4 March 1999

Members: Senator Eggleston (Chair), Senators Allison, Bishop, Bolkus, Payne and Tierney
Participating members: Senators Abetz, Bartlett, Boswell, Bourne, Brown, Brownhill, George
Campbell, Carr, Colston, Coonan, Faulkner, Harradine, Lees, Lundy, Margetts and Schacht
Senators in attendance: Senators Allison, Bolkus and Eggleston
Terms of reference for the inquiry:
 Environment Protection and Biodiversity Conservation Bill 1998


COCHRANE, Mr Peter Michael, Deputy Executive Director, Australian Petroleum
 Production and Exploration Association Ltd . . . . . . . . . . . . . . . . . . . . . . . . . 145

WELLS, Mr Dick, Executive Director, Minerals Council of Australia . . . . . . . .                                     145

FURNASS, Dr Bryan, Coordinator, Nature and Society Forum . . . . . . . . . . . . . . 159

ODGERS, Mr Brett James, Committee Member, Nature and Society Forum . . . . 159

HISSINK, Mr Michael Hans, former centre coordinator, Canberra and South-East
 Regional Environment Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

DWYER, Mr Mark, Chair, Australian Planning and Environmental Law Committee,
 General Practice Section, Law Council of Australia . . . . . . . . . . . . . . . . . . . . . 168

HARVEY, Ms Christine Susan, Deputy Secretary-General, Law Council of Austral-
 ia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

BRADBURY, Mr Alan, National President, National Environmental Law Associa-
 tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

ROSE, Mr Gregory Lawrence, Secretary, National Environmental Law
 Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
CRAIK, Dr Wendy, Executive Director, National Farmers Federation                                     . . . . . . . . 178

NAGLE, Mr Bill, Chief Executive Officer, Australian Seafood Industry Council . 178

HIGGINS, Mr Ian Arthur, Chief Executive Officer, Greenpeace Australia Ltd . . 192

RATTENBURY, Mr Shane Stephen, Political Liaison Officer, Greenpeace Australia
 Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

PITTOCK, Mr James, Program Leader—Nature Conservation, World Wide Fund for
  Nature Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

DELANEY, Mr Ian, Commissioner, Aboriginal and Torres Strait Islander Commis-
 sion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

ELDRIDGE, Mr William John, General Manager, Social and Cultural Division,
 Aboriginal and Torres Strait Islander Commission . . . . . . . . . . . . . . . . . . . . . . 206

HEWSON, Dr Helen, Council Member, Friends of the Australian National Botanic
 Gardens Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

BODEN, Dr Robert William (Private capacity) . . . . . . . . . . . . . . . . . . . . . . . . . . 213

ANDERSON, Professor Derek John, Chair, Centre for Plant Biodiversity
 Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

WEST, Dr Judith Gay, Director, Centre for Plant Biodiversity Research . . . . . . . 220

MARSDEN, Dr Susan Elizabeth, National Conservation Manager, Australian Council
 of National Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

JONES, Hon. Dr Barry Owen, Vice-President, Australia ICOMOS . . . . . . . . . . . 226

MARSHALL, Mr Duncan Anthony, Honorary Treasurer and Executive Committee
 Member, Australia ICOMOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

BAMSEY, Mr Howard, Deputy Secretary, Environment Australia . . . . . . . . . . . 238
BEALE, Mr Roger David, Secretary, Department of the Environment and
 Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

FLETCHER, Mr Wayne William, Director, Legislation Reform Taskforce, Department
 of the Environment and Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

HIGGINS, Dr John William, Executive Level 1, Legislation Reform Taskforce,
 Environment Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

TUCKER, Mr Mark John, Assistant Secretary, Legislation and Environmental Data
 Branch, Environment Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Thursday, 4 March 1999             SENATE—Legislation                             ECITA 145

  Committee met at 8.43 a.m.
COCHRANE, Mr Peter Michael, Deputy Executive Director, Australian Petroleum
Production and Exploration Association Ltd
WELLS, Mr Dick, Executive Director, Minerals Council of Australia
  CHAIR—Welcome. The committee prefers all evidence to be given in public but you may
at any time request that your evidence, part of your evidence or answers to specific questions
be given in private and the committee will consider any such request. I point out, however,
that evidence taken in camera may subsequently be made public by order of the Senate.
The committee has before it submission No. 335, dated 24 August 1998. Are there any
alterations or additions you wish to make to the submission at this stage?
  Mr Wells—No, not at this stage.
 CHAIR—I now invite you to make an opening statement. At the conclusion of your remarks
we will proceed to questions.
   Mr Wells—I will begin. Mr Cochrane, speaking on behalf of the Petroleum Production and
Exploration Association, may wish to make his own opening remarks. The Minerals Council
of Australia is the national body representing the exploration, mining and minerals processing
industries. We are responsible for about 90 per cent of Australia’s mineral production, which
is totalling something in the order of $36 billion, so you can see the scale of the operations
that we undertake in this country.
  The legislation we are dealing with here today has significant implications for the approval
and management of projects in Australia and our capacity to maintain that performance. As
an industry group, encouraging continual improvement in environmental management is a key
objective. As an indication of that, the industry a couple of years ago adopted its own code
of environmental management which has been widely heralded as leading the way in terms
of public openness and public environmental reporting. A key factor in achieving these higher
levels of performance is obviously the legislative framework.
  The industry welcomes and has welcomed publicly the opportunity for reform of the
Commonwealth environment legislation. We have been supportive of the framework as set
out in the discussion paper in February 1998. The framework, as far as we are concerned,
provides an opportunity for very positive and potentially significant benefits for industry and
for environmental protection in Australia. We think there is significant potential proposed to
reduce duplication between Commonwealth and states and to streamline project approvals. The
proposed accreditation of state processes and the codification of matters of national
environmental significance could be a substantial step forward in the Commonwealth-state
handling of environmental issues.
  In general terms, we consider the framework is okay. We think it is an opportunity, probably
once in a lifetime, to actually do something significant about environmental legislative
proposals in Australia. But we have some significant difficulties with the detail, which I
suspect you have heard at previous hearings so I will be very brief.
  There are aspects of the drafting we consider are major weaknesses that are going to stop
the bill achieving its key objectives, which we have supported. Fundamentally, we think the
philosophy brought to the bill is inappropriate. The bill, as we see it, does not adopt a

ECITA 146                           SENATE—Legislation                Thursday, 4 March 1999

framework that is going to encourage cooperation and openness between industry, governments
and the community. It fails to create a flexible framework that will encourage the pursuit of
high levels of performance whilst protecting the community’s interests. This approach does
not support and foster a culture of progressive improvement in environmental performance.
I will be happy to elaborate on that in question time if you so wish.
   The bill, as drafted, could result in a fundamental extension of the scope and involvement
of the Commonwealth in environment matters, which I think is contrary really to one of the
stated objectives when we set out. The key area of concern to us is obviously the bilateral
agreements. I have seen from the Hansard that you have had plenty of representations on this.
A lot of the benefits that will eventually come from such legislative reform in this model will
be with the bilateral agreements. We cannot see how you can make a judgment at this stage
about whether it will really deliver until you actually see some bilateral agreements. The
absence of bilateral agreements is going to result in a significant increase in Commonwealth
intervention in state and territory approvals processes, with major resource implications in the
environment portfolio.
   In terms of the impact of assessment processes, we think the process for obtaining approvals
is complex and potentially duplicative. There is a large range of actions and decisions that are
subject to approval and decision by the Commonwealth environment minister, alone and
without appeal.
   In terms of compliance and enforcement, again, this goes to the philosophy of the legislation.
We see the compliance and enforcement provisions of the bill in many places as heavy-handed
and not consistent with contemporary practice. The bill contains numerous examples of non-
specific powers, including provision for regulations that potentially extend the ambit of the
bill—for example, section 25, which provides for additional matters of national significance
to be added by regulation.
   In terms of the way forward, we think the overall philosophy of the bill needs to be more
closely aligned with the proposed framework and the key criteria. We think a more rigorous
and comprehensive assessment is required of the impacts and implications of the bill. And we
think we need to reduce the emphasis on the creation of a series of offences in favour of a
process which will encourage and promote good environmental performance, including
progressive improvement. I will close my comments there, thank you.
   Mr Cochrane—I represent the Australian Petroleum Production and Exploration Association,
the national representative of oil and gas explorers and producers in Australia. Our association
dates back to 1959, representing then an infant industry. We now produce over $8 billion
worth of crude oil, condensate, natural gas and liquefied petroleum gas for both domestic and
export markets.
   Some 90 per cent of our oil and gas production originates from under the seabed in
Commonwealth waters. A number of these offshore developments are linked to coastal
facilities through subsea pipelines. We therefore have a considerable interest in both
Commonwealth and state regulatory regimes and their processes for project approvals in
biodiversity conservation, given our marine focus, joint assessments and the accreditation of
state processes.
   We have taken in the past and currently a keen interest in marine protected areas. For
example, in 1997 we put forward a proposal to the Western Australian government for a
multiple use reserve around the Monte Bello Islands region. We have signed the first and, to
my knowledge, only cooperative agreement between an industry association and Environment

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 147

Australia which has led to the current secondment of a senior Environment Australia officer
to the APPEA secretariat.
  We have taken environmental issues seriously for a very long time. Our code of
environmental practice, for example, is now over 20 years old, having gone through a number
of revisions over that time. We are particularly proud of our environmental performance, and
the industry does pay particular attention to ongoing improvement in that area. We do seek
to ensure that the industry is not subjected, however, to costly and timely processes,
particularly if they do not really contribute to environment protection.
   We have been critical in the past of Commonwealth environmental assessment processes
and we have called for some time for simpler, more efficient and more certain procedures.
We do support strongly the reform framework set out in the Commonwealth’s consultation
paper issued in February last year. The framework and the key principles are very positive.
If implemented efficiently and effectively, they would represent a major step forward. The
advantages would include reduced duplication and greater clarity and efficiency in approvals
processes, and reduced cost and risk for industry.
  We were one of the 13 signatories to the industry submission you mentioned before and we
contributed significantly to the development of that. In addition, we have a range of other
concerns and comments about the bill. Given the bill’s size, scope and complexity, we are still
in the process of refining our position on many of these. I would like to address five topics
briefly. Before I get to that, I should say that we do not believe the bill is workable in its
current form, either practically, legally or within the existing resource allocation to
Environment Australia.
  The first topic I will address is the scope of the bill and the criteria for national
environmental significance. We believe the scope of the bill is enormous, potentially triggering
Commonwealth involvement in areas and issues that have not previously been examined. While
this matter is up to the government to determine, we would draw the committee’s attention
to two consequences: firstly, the resource implications for the portfolio of a significantly
increased scope of work, particularly in impact assessment; and, secondly, the potential for
increased duplication of assessment processes. We believe this is particularly likely if bilateral
agreements cannot be negotiated or implemented. Our concern is the potential for delays in
impact assessments and approvals if adequate resources are not available to undertake the
additional tasks.
  APPEA supports the development of clear criteria to define a Commonwealth role in impact
assessment. The current indirect triggers under the EP(IP) Act are unsatisfactory, unpredictable
in their application, timing and effect, and often bear little practical relevance to environmental
protection. We do not consider, however, that the criteria set out in chapter 2 of the new bill
are clear, unambiguous or remove the potential for duplication with the states and territories.
In particular, we believe the provision under section 25 of a power to extend the scope of the
bill by regulation is bad in law. Any extension of the scope of the act should be the subject
of legislative debate and amendment.
  Even with bilateral agreements in place, it is possible that some of these matters of national
environmental significance will actually institutionalise duplication, requiring Commonwealth
involvement in circumstances that it may not wish to be involved in. In addition, the bill is
framed to trigger Commonwealth consideration of matters that may already be agreed and
defined to be assessed by a state or a territory under a bilateral agreement. I refer to section

ECITA 148                            SENATE—Legislation                 Thursday, 4 March 1999

47 in particular. This Commonwealth consideration actually requires the minister to approve
an action as if it were a Commonwealth assessment under part 9.
   My second heading is environmental impact assessment. A major strength of the bill is its
specification of relatively clear time lines in the environmental assessment process. There is
one failing: to establish a time line for the issuing of guidelines for impact assessment; and
this has been a problem in the past. The bill attempts to establish a simple, clear and certain
impact assessment process, and we support that aim. Some provisions will create considerable
flexibility in how assessment processes proceed, and that may or may not be a good thing.
We share widely expressed concerns about the lack of detail regarding bilateral agreements.
Without effective bilateral agreements the workload on the Commonwealth can only be
   We have particular difficulties with condition setting—that is section 134. It says the minister
may attach a condition which may be convenient for repairing or mitigating damage, whether
or not the damage has been, will be or is likely to be caused by the action for which approval
is being sought. In addition, there appears to be no room for the minister to discuss conditions
with a proponent before deciding on them, or for the proponent to offer more cost-effective
ways of achieving the same objective or even to appeal the condition set by the minister. In
fact, section 136 (5) appears to actually rule this out.
   Protection of biodiversity is my third heading. Again, our major concern is with the
practicality and workability of the provisions in chapter 5. Bioregional plans, for example, may
be a good idea and they would feature in oceans policy quite significantly. But there is no
requirement to consult with interested parties or even the states if coastal waters are involved.
While the minister may have regard to a bioregional plan in making any decision under the
act, it is not clear what the practical effect of this might be, if any.
   I mention two examples of how the bill takes too far the issues that genuinely need tackling.
There is an offence for killing, taking, trading, keeping, moving or interfering with a cetacean
anywhere in the world. We have some difficulty with the extraterritoriality dimensions of this
provision. An Australian company would be guilty of an offence potentially if a whale was
directed off course by an offshore seismic survey vessel, say, off the coast of Africa without
a permit issued by the minister, unless it was an unavoidable accident, in which case the
defendant bears the evidentiary burden. Interestingly, section 246 vests cetaceans that are
killed, injured or taken anywhere in the world by Australian citizens, Australian companies,
Australian vessels or aircraft, amongst others, in the Commonwealth. Furthermore, section 246
seems to create a Commonwealth liability for any matter related to such a cetacean after it
is vested in the Commonwealth. I am not quite sure this effect is intended, if we understand
it correctly.
   Secondly, section 248 and following creates a new category of listed marine species. It is
an offence to kill, injure, take, trade, keep or move a member of these species without a
permit. Given that the proposed list of marine species includes seagulls, this may make walking
along a Commonwealth beach somewhat risky unless the moving of a seagull was the result
of an unavoidable accident, in which case the offender has seven days to notify the secretary
of the department of the particulars of the act. I am sure this sort of literal application of the
bill is not intended.
   With respect to enforcement and compliance, we believe these provisions are imported from
existing acts and are designed properly to protect against trade in endangered species and to
properly manage national parks. But we consider their wider application to contraventions of

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 149

other provisions of the bill—for example, in breaching permit conditions—will actually
discourage a culture of business responsibility for and increase transparency and open reporting
of good environmental management. Powers to board vessels, search, seize goods and dispose
of them and arrest seem excessively confrontational to us and heavy handed. A ship bringing
in an exotic organism, for example, could be seized and destroyed with very limited capacity
for its owners to recover its market value.
  APPEA is opposed, lastly, to the wide definition of standing in sections 475 and 487,
particularly when read with an adjacent section 478, which directs the Federal Court not to
require any undertaking to damages and another provision allowing the Federal Court to grant
an injunction whether or not there is a significant risk of injury or damage to the environment.
  We have a greater list of issues and sections with which we have difficulty and we will be
taking these up with the government in the near future. We will be endeavouring to suggest
amendments that reduce the emphasis in the bill from such a wide array of offences in favour
of approaches which promote and foster good environmental performance and management,
particularly those focusing on progressive improvement. We believe the bill can and should
be significantly improved through the active engagement and participation of all stakeholders.
   CHAIR—I would like to ask you two questions. The issues have been raised elsewhere by
your colleagues. The first one is the question of compliance and enforcement provisions in
the bill, which you have objected to in your submission. Would you not agree that the bill
must contain a complete legislative scheme to allow the Commonwealth to undertake
assessments and approvals when it cannot rely on state processes alone—for example, because
those processes do not meet Commonwealth benchmarks or a bilateral agreement has been
suspended or cancelled due to non-compliance of a state? And would you not agree that, if
the Commonwealth does not have a complete compliance and enforcement scheme in such
situations—for example, one must wonder how the Commonwealth would deal with a person
who refuses to refer a proposal with a significant impact on, say, a world heritage property—
there are a lot of situations where a so-called command or coercion regime is probably going
to be necessary even though your colleagues talk about best practice and discussions and
consensus agreements? Isn’t that perhaps a little naive and other worldly? Don’t we, in fact,
need to have a bit of teeth in the legislation?
  Mr Wells—Perhaps I can describe what I would consider to be model legislation in this
area, and then we will come back to the compliance aspects, if we may. A good example of
this, quite frankly, is in safety legislation. We have seen, over two or three decades in
Australia, very detailed legislation about workplace safety, prescriptive regulations, manuals
and so forth. We have seen no significant improvement in safety in some industries as a result
of that. It is widely recognised that unless you have ownership of the objectives at the
shopfront, the workplace, you will not ultimately get the high levels of performance which
we seek.
   Within the resource sector and certainly in the minerals industry, our pursuit is of high levels
of environmental performance in management. The only way we are going to achieve this is
to get the cultural change within industry, from management right down to the worker, and
basically a pride in achieving these sorts of things. You need a legislative framework which
is not going to put people in a situation where they are defensive but rather where they are
actually seeking to innovate and find the best forms of protecting the environment whilst
protecting their commercial interests at the same time.

ECITA 150                           SENATE—Legislation                Thursday, 4 March 1999

  If you set up a regime where people are concerned about being prosecuted—inspectors
looking over their shoulder—they will tend to become conservative about the way they do
things; they will tend to collect information for defensive reasons. You will defeat, to some
extent, the desire we have in industry to be more open with the community about the pluses
and the minuses of our operations.
  We have a major drive in terms of public environmental performance reporting. If you put
companies in a situation where they are threatened by prosecution for minor breaches of
conditions and those sorts of things, you do not get the process of internalisation of
information to improve performance. You actually get people collecting information for the
potential event at some stage that they are prosecuted. So the concern is that to have general
compliance procedures which resort to penalties, as prescribed in the bill at the moment, will
work against this general thrust in terms of improving environmental performance.
  There are some circumstances and bottom lines that the governments of Australia have to
have in terms of protecting community interest. The challenge is to have legislation that has
some minimum levels there so that people who genuinely do abrogate their responsibilities
can even be prosecuted, in remote circumstances, but generally you do not cap performance.
  This is what we describe as model legislation. What you have in this bill are compliance
provisions, penalties and so on applying right across. So we would see it as not encouraging
that more progressive and open approach which is necessary to achieve high levels of
environmental performance.
  The answer to your question is that I can understand why it is put, but the generic
application of the compliance and penalty procedures in this, we think, will work against good
environmental management rather than for it.
  CHAIR—In Perth your equivalent body talked about the Canadian precedent. What do you
know about Canadian law in this regard?
  Mr Wells—I do not have detailed knowledge of it, Senator.
  CHAIR—The other question I have is about the environment minister being the action
minister and having to consult with other ministers. Your submission suggests, in part, that
relevant ministers might be left out of consultations regarding approval of a proposal, as the
bill only requires the environment minister to invite comment from ministers who have
administrative responsibility relating to a proposal. That is section 131. Your submission goes
on to say that for some resource developments there may not be a minister with administrative
responsibilities. Would you like to provide us with an example of what you are talking about
there? Where would there not be another minister involved in a resource development project?
   Mr Wells—Mr Cochrane may have a different view, because petroleum obviously involves
some federal responsibilities. But from the minerals industry’s point of view, quite clearly
minerals legislation is largely the responsibility of the states, so an application for a lease
would largely go to a state minister. But there may be some aspect—endangered species or
whatever—where the Commonwealth minister sees there is an issue of Commonwealth
responsibility or of national significance, so that he wishes to take an interest. At that stage,
strictly speaking, the federal resources minister has no administrative responsibility whatsoever
for that matter.
 CHAIR—Would he not, therefore, probably be satisfied with a state accreditation process
which would have involved, presumably, a broad group of state officials and departments in

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 151

coming up with the assessment and proposed approval which would then go through to the
federal minister?
   Mr Wells—That would be consistent with the objectives that we set out but I do not think
it is a necessary precondition. At this stage we have no understanding of the bilateral
agreements, but we would have hoped that under a bilateral agreement you would have those
sorts of provisions. But there is nothing we can see in this legislation to stop the federal
minister, at a subsequent stage, from changing his mind on advice and seeking to intervene.
What we have always wanted to stop is duplication or forum shopping in these sorts of areas,
which lead to uncertainty.
   CHAIR—But the purpose of the accreditation process in the bill is that the state would carry
out the approval process, and the minister would have the right then to accept or reject the
advice on approval. If he was not satisfied with the level of consultation, one must presume
that would be a ground for rejection and he could then require broader consultation. So surely
that answers the problem that you have raised, in theory anyway.
   Mr Wells—I am not sure it does. Peter may want to comment.
   Mr Cochrane—It may in theory. First off, your assumption is that these accreditation
processes or bilateral agreements are in place. That may be quite a big ask.
   CHAIR—They will be, one hopes. Otherwise the system will not work, will it? So they
will have to be. Please proceed.
   Mr Cochrane—I guess we have very similar concerns. You may have an onshore gas
development, for example, such as we are facing at Moomba—a new project. It is entirely
within the province of the state but there may be related wetlands which would trigger a
Commonwealth involvement. And again, as Mr Wells has said, there would be no
Commonwealth minister with a direct responsibility. Our view, given your scenario, is that
the state has been accredited to look after these matters and those issues would be very
properly handled by the state.
   But the act as it stands provides a line directly back to the Commonwealth environment
minister, irrespective of whether a process has been accredited to a state. I see this bill a bit
like a spider web, with the environment minister sitting in the centre of it. There are lines back
to him or her at every point. We are very concerned that that will give rise in some instances
to duplication, or, as Mr Wells has said, forum shopping.
   Senator BOLKUS—I will say at the outset that—and I am sure Senator Allison feels this
as well—it is quite a frustrating moment, in a sense. We have got eight minutes to ask each
of you guys, from two important parts of industry, questions which from our perspective could
go to some 30 or 40 pages. And from your submissions it could go longer. So I will try to
keep my questions to about four minutes, to allow Senator Allison the same amount of time.
   CHAIR—We did start late, so I will extend this session till 9.30.
   Senator BOLKUS—That gives us a bit longer, but even so—
   CHAIR—I take your point, but the process of committee hearings is always short.
Regrettably, that is the way it is.
   Senator BOLKUS—This bill has been around for a little time now. Would you indicate
whether there has been any consultation in recent days, for instance on bilaterals, draft
regulations or the like, that you might have been involved in?
   Mr Wells—Not with us, Senator.

ECITA 152                           SENATE—Legislation                Thursday, 4 March 1999

   Senator BOLKUS—Neither of you? Is that why you say that there is still an amount of
detail outstanding in respect of the whole regime?
   Mr Cochrane—Absolutely.
   Senator BOLKUS—In our previous engagements, on the native title legislation, we had
the opportunity to have round table discussions with industry and stakeholders. Would you
imagine that such a process in respect of this bill could be productive? I gather from talking
to some of the environment groups, and also from industry, that there might be a meeting on
common ground in respect of some issues. Would you imagine that sort of process would be
   Mr Wells—For the level of detail that we need to go to in some areas here, round tables
with big forums are not necessarily the best way to go. I certainly think there is a need for
additional consultation and understanding about some of the potential ramifications of what
is currently in the bill. Further consultation, yes, but whether at round tables is the best way
is another matter.
   Senator BOLKUS—That could take some time. Is industry prepared to wait another six
months to try and get this right?
   Mr Wells—I think we had better get a right outcome rather than a difficult one. We see
a significant opportunity here. We think it could be done faster than in six months if there was
a will, but there is a long list of issues to be dealt with.
   Senator BOLKUS—In respect of those issues, you say that the explanatory memorandum
to the bill does not reflect industry view and you do not accept the financial impact statements
that say the new regime will not cost more than the existing regime. Can you tell us what your
evidence is for those two statements? Can you also tell us how you anticipate there will be
increased costs? Is it essentially through duplication or are there some processes that you find
might have to be tested in court and drag out the process even longer?
   Mr Cochrane—We do not have any evidence for those statements because we did not make
those statements. Our interpretation of the bill is that it does considerably extend the scope
of Commonwealth involvement in environmental issues and that alone will require significantly
increased resources to the environment portfolio.
   Senator BOLKUS—You mentioned best practice environmental legislation. You drew the
analogy between legislation and the workplace. You mentioned that one has to take control
of the culture of the workplace. Short of heavily buying into some of the mining companies,
how do you anticipate those with environmental concerns having those concerns embedded
in the culture of the outlook of a company? It is a hard call, for instance, if you are about to
drill off the Great Barrier Reef and you believe there might be billions to be made, to go
through the proper processes or at the end of the day to make a decision not to drill there. Is
it Alice in Wonderland stuff to anticipate the culture of major corporations being changed in
that aspect?
   Mr Wells—No, not at all. I think that is an extreme example. In any situation, it is unlikely
that you will get 100 per cent agreement from any population on whatever test you want to
put to them. But you must acknowledge that industry generally—and I would say the resource
sector, in particular—has accepted that sustainable development has an overriding framework
of principles for its operation. It is accepted that community values and acceptance by the
community are an important element of continuing operations. I think you can see that in terms
of recognition of the need to know there is public environmental performance reporting.

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  There is a lot of evidence to show that major corporations in their processes—whether
dealing with Aboriginal people or environmental concerns in regional Australia—go to extreme
lengths these days to consult communities and take into account those community views in
the way in which they are going to undertake that project. You will never get 100 per cent
agreement, but I think the progressive model does seek to do that. Basically, what we do not
want to see is legislative or statutory processes which drive companies back to old ways of
doing things where you do things by minimum requirements.
  Senator BOLKUS—But if you have that outlook from some companies, and if you have
that degree of participation and concern, aren’t they the companies that will not be really
affected by this legislation? If they are doing the right thing in terms of their—
   Mr Cochrane—Except to the extent that there is this incredible array of offences where
you may not know whether you are guilty or not. For example, as I mentioned before, there
is this list of marine species. How are you going to know whether you actually kill or injure
a sea snake or a seahorse in the course of some offshore operation? It seems to us to be an
excessively legalistic approach to the issues we are talking about. Other than some of the
flexibility mechanisms in the bill—and it is pretty unclear as to how they might work—it does
not foster a culture of good attention to environmental management.
  Environmental management these days is just part of good business. This bill does not seem
to recognise that at all. As Senator Eggleston started off, it is a very detailed safety net to trap
poor performers. We accept that there does need to be some sort of safety net. But on the other
hand, you have to recognise that a very large part of industry is not at that end where you are
bouncing on a safety net; you are up the other end of good performance. We would be looking
for elements in this bill which fostered, promoted and encouraged that approach.
  Senator BOLKUS—I will skip to the next general issue. You talk about a safety net. Would
you prefer a safety net or safety nets? Is it easier, for instance, for industry to have one
national regime as opposed to having to work with differential regimes from state governments
and so on? I would have thought a degree of national certainty might have been preferable.
  Mr Wells—We have a lot of debates around these things as well. Generally, what we ask
for is national consistency, not uniformity. We think you come from a framework of principles
and criteria which should have some adherence across Australia, but in terms of direct
application and implementation within the states, there needs to be some flexibility for local
  Mr Cochrane—Desirably, we seek, as a principle, national consistency, but if trying to
achieve a national regime leads us to years of constitutional debate and legal challenges and
uncertainty about who is in the box seat, then that is not the outcome that we would seek.
  Senator BOLKUS—I would have thought a lot of those constitutional issues had been
resolved by now, so we may have got over the worst of it. Did you say you have had no
consultation in respect of the bilaterals at this stage?
  Mr Cochrane—None.
  Senator BOLKUS—What is your advice to us, then? There is a lot of detail unclear—the
regulations, for instance, and the bilaterals. Should we have the bilaterals on the table so that
we know what we are talking about before we debate this legislation? Should there at least
be draft bilaterals and regulations around so that people from your side and the parliament
know the final details?

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   Mr Wells—I think it is unlikely you will get final bilaterals because of the state processes,
but certainly it would be advantageous if we had an opportunity to see the outlines of the
bilaterals and the sorts of things that are going to be taken into account. The greater the detail,
the greater the certainty, from our point of view.
   Mr Cochrane—We would like a transparent process where all the relevant stakeholders
were involved in discussions on the development of bilateral agreements.
   Senator BOLKUS—Have you had a chance to look at the consequential bill?
   Mr Cochrane—Only briefly.
   Senator BOLKUS—You said you would be making submissions to government. I wonder
if you could keep this committee in the loop, so to speak, in respect of that. You will
obviously be going through the bill in finer detail and with all the resources you can muster,
so we would like to be kept informed. I have one final question at this stage before Senator
Allison has her chance. Are there any areas that you would imagine should not fall under
bilateral arrangements? Are there any matters that you would argue should be kept national,
out of that level of arrangement?
   Mr Wells—I frankly cannot see why even the provisions relating to Australia’s international
obligations under various treaties could not be dealt with under the bilaterals. It is not beyond
the wit of man to draft those things with sufficient safeguards so the Commonwealth minister
can be satisfied that the procedures in the states are adequate to meet those obligations, which
is clearly his responsibility. From the Minerals Council’s point of view, we cannot see specific
matters at the moment which could not be covered.
   Senator BOLKUS—But you would understand that, for instance, a lot of the major
environmental battles over the last 20 years or so have happened nationally because the states
have not picked up the ball, have not protected areas. As a consequence, a whole list of areas
would not have been protected and would not be there now for the great economic tourist
potential they provide, amongst other benefits. Can you actually trust the states? Do you find
it easier, for instance, to deal with the states than the national government?
   Mr Wells—There are a number of questions you have asked there, and I will not answer
the last one. In terms of the previous ones, it is clear that we have not had bilateral agreements
between the states and the Commonwealth to handle these matters in the past, so naturally
they have migrated to the Commonwealth. We are talking about a new era of partnership in
this area between the Commonwealth and the states. One would hope that, through the bilateral
agreement process, we are going to end up with a more streamlined process by which more
matters can be dealt with in land administration and so on where they appropriately are, in
the states.
   Senator BOLKUS—Yes, but it is a big ask, isn’t it, to say, ‘We would hope that this is
going to happen,’ when the history of the last 20 years has been that governments have had
to intervene to make it happen.
   Mr Wells—But we have not had bilateral agreements.
   Senator BOLKUS—Bilateral or not: bilateral, in essence, means that the states take over
administration, which is where we have been for the last 20 years on those issues that I
referred to without listing.
   Mr Wells—Our view is that, quite clearly, we think it is not beyond the wit of man to draft
those agreements in such a way that it should be a rare occurrence for the Commonwealth
minister to need to go around it. Quite frankly, if the bilateral agreements are going to continue

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 155

to give opportunity for the Commonwealth minister to revisit issues, they will not be delivering
what was intended in terms of removing duplication.
   Senator BOLKUS—That might be right. In essence, you are suggesting that states do have
final control under bilaterals. My concern is that it is not beyond the wit of man or woman
to avoid obligations that otherwise should be met to ensure adequate protection.
   Mr Wells—There are clearly provisions in the bill as it is drafted—depending what the final
form is—for the Commonwealth minister to ensure that those agreements are being pursued
in a way consistent with his expectations and if, in terms of his federal responsibilities, those
international obligations are not being adequately dealt with, there is an opportunity for
intervention. Mr Cochrane would like to comment.
   Mr Cochrane—There have been a number of developments recently in offshore oil and gas
which have required joint Commonwealth-state assessments. They have in recent years worked
exceedingly well; our companies have not had any major difficulties with the efficiency of
those processes. It is quite possible to undertake joint assessments, even with the current, very
limited framework for joint assessments that exists. Our view is that if governments are willing
to cooperate and work together on these matters they can do so, and part of our argument
would be that you do not need an excessively legal framework to achieve that.
   Again it is probably a safety net for circumstances where governments do not get on all that
well. However, if that is the case, we are not quite sure how well bilateral agreements will
work either, given the various out clauses there exist for the Commonwealth minister to
suspend or revoke them, pretty well at will.
   Senator BOLKUS—Thanks for now, and let us hope we get a chance to discuss these issues
   Senator ALLISON—I come back to the bilateral agreements question. We are all in the
dark about that process because we have not actually seen one yet, so we do not know, but
a number of submitters to this inquiry have said that they feel bilateral agreements have the
capacity to see competition between the states to lower the environment protections in place.
They seem to have a concern which is the opposite of yours, that we will have states
competing with one another for industry and bilateral agreements will be a useful tool to
achieve that. Is that something you disagree with?
   Mr Wells—I had not actually thought about that line of argument, to tell you the truth, but
I think it is unlikely. From our point of view, we do not seek that in bilateral agreements.
Basically, what we are seeking is certainty of process and understanding of the respective roles
of the two governments in these situations. To the extent there is a variance in the application
of principles and key criteria that might be agreed at the national level, there will be some
potential benefits in one state as against another, I guess, but I would think that that was a
rare situation and I cannot actually think of an example for you.
   Mr Cochrane—I would quite strongly disagree with the argument that you have just
outlined. I think the bilateral agreements actually are an extraordinarily powerful lever for the
Commonwealth to achieve a high degree of consistency in matters of impact assessment,
protection of world heritage, et cetera. It is completely within the purview of the Common-
wealth minister to accept or reject those agreements, and he or she may suspend or revoke
them pretty well at will. So, far from standards being reduced, I actually think it is a very
powerful mechanism for the Commonwealth to raise standards. That in itself is somewhat of
a concern for us, because if the bar keeps rising without regard to the on-the-ground effects,
which in many cases the states are best placed to judge, then that is why we would want to

ECITA 156                            SENATE—Legislation                 Thursday, 4 March 1999

be involved in having some input into the development of bilateral agreements, so that there
is an element of realism in their practical application.
   Senator ALLISON—The RFA legislation and process has often been cited as a bilateral
agreement. We do not know if it is close to the model the government has in mind or not. If
it were, would you see any problems with the framework for the RFAs? Have you had a
chance to look at that legislation? I know it is not mining but it is extraction of sorts.
   Mr Wells—Certainly we have had an involvement with the forest agreements. Whilst
implementing it has been somewhat problematic in respect of jurisdictions, for a variety of
reasons, the general approach of resource assessment and better decision making about the
zones, and how they are managed in a more holistic way, is an approach we would support.
Certainly it recognises the different uses of those lands and the different values that
communities might have in those areas.
   So as a general approach in terms of a consultative, information based approach to these
sorts of issues, we think it has a lot to recommend it. But I am not sure I see a direct parallel.
The overarching environmental legislative relation is perhaps more complex, I would suggest.
   Senator ALLISON—In your submission you say that the question is whether competing
proposals in different states would result in some sort of preferential treatment to the state with
the bilateral agreement. Does that suggest that, once a bilateral agreement has been reached
with a state, it would attract industry there because it has been through a process? I do not
quite understand what you mean by that.
   Mr Wells—I am not sure I have the right comment you are addressing in our submission.
I think we are concerned about the potential progressive implementation of bilateral agreements
in different areas. The concern is, obviously, that until a bilateral agreement is in place, the
Commonwealth act will operate in such a way that the Commonwealth minister will be
involved in making a whole range of decisions. We see some delay in getting the bilateral
agreements in place, so to the extent that a bilateral agreement is in place in one state ahead
of others, it may give some advantage.
   Mr Cochrane—Certainly, if we do not have a clear duplication of processes and if there
is one single process resulting from a bilateral agreement, I would imagine that would make
that state somewhat more attractive.
   Senator ALLISON—And what are the implications of that?
   Mr Cochrane—You could only analyse that on a case by case basis, because some projects
may only take place in one state. Resource projects depend very much on where the resources
are. If it was, say, a manufacturing project though, it may make a difference, but that is beyond
our area of expertise.
   Senator ALLISON—Do you think that is perhaps what these groups are talking about?
   Mr Cochrane—I think so. If you are offering a simpler, more efficient process in one state
over another, that must make that state more attractive. If there is a risk of the Commonwealth
running a separate process in another state, I would have thought that would add to the risk
of investment in that state.
   Senator ALLISON—Mr Cochrane, I wonder if you can expand on the comments in the
submission about extending the role of the federal government beyond the exclusive economic
zone. You give, in particular, an example of the activities of an Australian corporation in
Indonesia and then talk about the Timor Sea. Can you just explain why you have a concern

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 157

about that? Do you think that the federal government should have no role in terms of the
activities of Australian corporations, either just outside our own zone or beyond?
   Mr Cochrane—Our major concern is the practicality of those provisions. There is an issue
of the philosophy of the extent to which the Commonwealth should hold its citizens and
companies responsible for their actions beyond the Australian jurisdiction. I guess our major
concern is just how practical these things are.
   In my opening statement I cited the example of an Australian company conducting offshore
operations off Africa. Perhaps, at least in my reading of the bill, the company would
require a permit from the environment minister here. That, in itself, would require an
assessment report from his department for him to make a decision on that. It strikes me as
being not particularly practical and adds to the argument about the additional workloads that
would be placed on the portfolio to assess actions taking place anywhere in the world.
   Senator ALLISON—But would you agree that mining activities overseas, in particular, have
caused Australia some grief in terms of international relations in recent times? How does the
government deal with them?
   Mr Cochrane—I am not going to comment on mining matters, but I am quite prepared to
acknowledge that the oil industry has had some bad history in other parts of the world without
a doubt. These days shareholder interest and overall attitudes to corporate responsibility have
meant that companies are increasingly adopting the same approaches wherever they operate.
That is increasingly the case and is a matter which we, as an industry association, actively
promote. That is very much in our members’ interests and the interests of the industry.
   If you have an industry which is well regarded wherever it operates, then it will face fewer
impediments to its operations. So we would rather not dwell on the history. I think we have
all learnt from history; what we need to do is encourage those approaches.
   Mr Wells—I have a comment there. Equally, there are obviously some instances that we
regret and have learnt from. For example, our code of environmental management is not just
bounded by Australia. It is a philosophy and an approach to environmental management for
companies that are signatories to apply all around the world. There are something like 264
mineral development sites around the world being operated in consistence with this code now.
We advocate a philosophical approach where companies take on board this risk based
management approach to the environment and they take that with them wherever they go. But
there needs to be some flexibility.
   The problem with the extraterritoriality aspects of this is that, if you go for command or
control, as has been characterised, or a more rigid punitive approach to these sorts of things,
you put the federal environment minister in a position where his officials are potentially going
to have to be monitoring and checking on things right around the world, which I do not think
is intended. It is not a philosophy that encourages improvements in environmental performance;
it encourages people collecting information and being in a defensive position, which is not
positive for the environment.
   Senator ALLISON—Are you saying that in this legislation there would be the capacity for
the minister, say, to intervene in a situation like Ok Tedi? I am thinking of the worst possible
mining environment damage. Are you saying that would be inappropriate?
   Mr Wells—Frankly, this gets back to the practicalities and legal questions about how we
would actually seek to do so because it is within the laws of another country.
   Senator ALLISON—Do you think that is what is in the bill?

ECITA 158                            SENATE—Legislation                  Thursday, 4 March 1999

   Mr Wells—The opportunity in relation to cetaceans, as Mr Cochrane was outlining, has
provisions which strictly will require companies to be reporting back to the secretary to the
department. If they do not do so within seven days, they will be subject to penalties. That,
to me, is impractical and, frankly, way beyond the intent of this sort of legislation. As we read
it, that is what some of the implications are.
   Mr Cochrane—Although at the beginning of the bill it does say that it does apply to
Australian citizens and companies incorporated in Australia, et cetera, I believe the only part
of the bill where that then is specifically taken up is in the section on cetaceans.
   CHAIR—Unfortunately, I think we are going to have to leave it there.
   Senator ALLISON—Could I ask one other question?
   CHAIR—Yes, Senator.
   Senator ALLISON—This is not something I had realised, but you say that a ship could
be destroyed if it was found to carry exotic species, presumably in the ballast water. Australian
waters have suffered enormously from exotic species being introduced by ships and we seem
unable to do anything about this. Why do you think that is a heavy-handed approach, given
the past damage that has occurred and the lack of will by the shipping industry or the mining
industry to deal with this question?
   Mr Wells—Let me comment. I do not think there is a lack of will at all. I think there are
some quite significant programs and there is research going on into ballast water in Australia.
It does not just relate to the mining industry. Australia is an island state relying on its shipping
and, if we were to have provisions which potentially risked foreign shipping to that sort of
exposure, we would damage this nation’s capacity to trade. There is no doubt that there is need
for continuing research to try to reduce the risk of introduction of exotic species.
   Senator ALLISON—We know how to eliminate it. There is just not the will or the money
to do it.
   Mr Wells—I do not think that to punish future operators for past ills is good legislative form
   Mr Cochrane—The Australian Shipowners Association, as I understand it, have entered
in with Environment Australia to do a two-year research program on ballast water and exotic
organisms. There are voluntary guidelines which apply at the moment and my understanding
is that those will become mandatory once the results of this research are in. There are other
   Senator ALLISON—It is true what you say, but we keep doing research. We know the
answers. We just will not do anything about it.
   CHAIR—Thank you very much for your appearance and your comments, I assure you, will
be taken into account in consideration of the report.

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 159

[9.35 a.m.]
FURNASS, Dr Bryan, Coordinator, Nature and Society Forum
ODGERS, Mr Brett James, Committee Member, Nature and Society Forum
HISSINK, Mr Michael Hans, former centre coordinator, Canberra and South-East
Regional Environment Centre
   CHAIR—Mr Hissink, do you have any comments to make on the capacity in which you
   Mr Hissink—I was the centre coordinator for the Canberra and South-East Region
Environment Centre. Personal problems with my parents have forced me to go to Sydney, so
I am no longer employed with that organisation. I would like to point out that I also put in
a submission myself, which is what I thought I was being invited to address here until I
realised that I was representing the environment centre. I feel a bit uncomfortable about it,
because I am not employed by them, but I am quite happy to—
   CHAIR—If you are authorised to do that, that is quite satisfactory.
   Mr Hissink—Thank you.
   CHAIR—The committee prefers all evidence to be given in public but you may at any time
request that your evidence, part of your evidence or answers to specific questions be given
in private and the committee will consider any such request. I point out, however, that
evidence taken in camera may subsequently be made public by order of the Senate.
   The committee has before it submissions No. 295 dated 24 August, No. 282 dated 24 August
and No. 258 dated 21 August 1998. Your personal submission is included, Mr Hissink. Are
there any alterations or additions that any of you wish to make to your submissions at this
   Dr Furnass—I wish to make a supplementary submission to our original submission.
   CHAIR—Do you want to submit that or do you wish to speak to that? I am going to give
you an opportunity to speak to your submissions in a minute.
   Dr Furnass—I would like to speak to it and then submit it.
   CHAIR—Would you like to do that separately to speaking to your general submission?
   Mr Odgers—We thought if we each made a brief opening statement they would be
complementary, mine coming first and Bryan’s second.
   CHAIR—We will go to opening statements. We note that you will make an additional
submission, Dr Furnass, and now we will go to opening statements in which you can address
your additional submission. I now invite the submitters to make opening statements before
being questioned by the senators.
   Mr Odgers—Our perspective might be seen to be unusual because our concern about
contemporary human behaviour in relation to their own health and the health of the biosphere
is founded on human biological history. We have endeavoured as an organisation originally
to build a bridge between the more academic world and the general community. Over a period
of seven years our membership has grown to over 150 within the Canberra community and
spread a little wider to some of the other capital cities.
   A basic precept, however, is that humans have the cultural ability to fashion institutions to
suit particular purposes. Today those purposes are environmental challenges. In addition, in
1995 we held a conference on survival, health and wellbeing and arising from these

ECITA 160                           SENATE—Legislation                Thursday, 4 March 1999

proceedings we determined upon a central theme of sustainability for our work. Australia is
fortunate in having formulated a national strategy for ecologically sustainable development
which is now showing up more and more in statutes and in the thinking of community
organisations and government.
   This bill purports to be a comprehensive reform of Commonwealth environmental legislation.
It is 25 years since this last happened when the principal statute, the Environment Protection
(Impact of Proposals) Act was enacted. It was a major advance at the time and it remains
largely in its original form.
   That statute enshrined most of the elements of an ESD agenda. Within the ambit of federal
powers, it aspired to integrate environmental with economic and social assessments. The act
achieves this by a broad definition of environment and providing for an environmental impact
assessment to be applied to policies and programs as well as projects. The act does not limit
the scope in terms of the type of proposal or the kind of environmental problem which could
be examined by the Commonwealth. It makes ample provisions for open government and
public participation in the processes of assessment and decision making.
   The prospect with this bill is that, 25 years later, with many new and more pressing
environmental problems, plus the sustainability imperative of the integration with economic
and social factors, plus more extensive measures nowadays in government of public
accountability and community involvement in policy formulation, Australia could go backwards
from the achievement of 25 years ago.
   There are three points which I wish to specify as arising from our submission. One, we
would emphasise the very meagre provisions for strategic environmental assessment, that is
environmental impact assessment for policies and programs. We suggest that these very meagre
provisions—less than a page—need to be replaced by the 1974 inclusion of policies thereby
mandating the inclusion of environmental considerations in the formulation of policies in such
crucial sectors as energy, agriculture, transport, trade and the tax system. A just issued draft
report of the Productivity Commission on the implementation of ecologically sustainable
development by Commonwealth departments and agencies indicates widespread failure and
inconsistency. Those words are chosen carefully.
   Secondly, the goals and principles of the national strategy for ESD are, with some difficulty
and some ambivalence, to be found late in the act, whereas we would argue that they should
be the guiding, overall and binding clear purposes of the legislation. Thirdly, there can be
no level of confidence, at least at this point in time, that the more pressing environmental and
sustainability challenges will be encompassed in the administration of this bill in its present
form. The definition of national significance is far too restricted, and the accreditation
processes for delegation to the states do not stand rational or historical scrutiny.
   Environmental impact assessment is a powerful instrument for implementing policies. This
bill contracts its scope in the Commonwealth’s sphere thereby handicapping its potential
leadership or intervention in such test areas of sustainability as land degradation, transport,
water resources management, forestry, pest management, vegetation decline and greenhouse
   CHAIR—Thank you.
   Dr Furnass—I think one of the concerns that we both have is that any legislation should
be preceded by a clear statement of the present environmental situation. That was not given
in the report. I was thinking in terms of a clear statement such as that made by the State of

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 161

Environment Australia published in 1996. The editor is Ian Lowe. It gives a comprehensive
assessment of Australian environmental problems. No reference was given to that.
  We are concerned that, while the document pays lip-service to ESD, it fails to recognise
the existing magnitude of the environmental degradation in Australia. I would like to make
the following comments in reference to that.
  Australia is the most arid of all vegetated continents. It has shallow soils and limited water
supplies. Indicators of the extent of current environmental degradation include widespread
salinisation and acidification in lowland areas, loss of topsoil, reduction in biodiversity and
diminution of water flow, together with excessive nutrients, herbicides and insecticides in river
systems. The present situation has resulted from the application of 19th century agricultural
practices which may be appropriate to the fertile and deep soils of Europe but not to
Australia’s arid and semi-arid soil conditions.
  We believe that the duty of any government should be to ensure best practice towards
ecologically sustainable development. In recent years, the unbridled market forces have led
to environmental worst practice in pressing for high water use agribusiness through irrigation
of monocultures such as cotton, rice and viticulture, with associated massive insecticide,
herbicide and inorganic fertiliser use. A recent example of this tendency is an application to
the New South Wales government to dam the Lachlan River for irrigation of massive cotton
plantations. While such applications may be appropriate to the Mississippi basin, they can be
disastrous to Australia’s limited water lifeline of the Murray-Darling basin. It can lead to local
soil degradation and downstream pollution. The Nature and Society Forum believes that the
Murray-Darling system, which runs through four states and one territory, should be subject
to more, not less, Commonwealth control through legislation for integrated management.
  Australia currently enjoys one of the highest material standards of living in the world. Our
per capita consumption of non-renewal natural resources and production of greenhouse gas
emissions are second only to those of the United States and many times higher than those of
developing countries. Paradoxically, with such a large area of land, we are the most urbanised
nation in the world, with the ecological footprint of our cities extending far into the outback.
By way of contrast, the rural sector, on which our national prosperity rests, is in deep
ecological, economic and social crisis, with large numbers of people vacating the land out of
despair. How am I doing for time, Senator?
 CHAIR—This session was due to finish at 10 o’clock, but we will run on through the
morning tea break till 10.15 and just keep going. We will be finishing this session at 10.15.
  Dr Furnass—Our ecological situation has been well presented by the State of Environment
Advisory Council. Our point is that we should take, as Brett emphasised, a biological and
historical view of history, not only in Australia but globally. We are the subject now of the
product of industrialisation and agriculture, and this has resulted in major problems with
population, poverty and pollution. We believe that the survival, health and wellbeing of
humans and our environment really rest on a third stage of human development, which is that
of ecological sustainability.
  The challenge of choice for Australia is clear. Either we drift towards being a desert island
or we invest massively in ecologically sustainable practices such as sustainable agriculture,
recycling of water and nutrients, cessation of land clearing, with associated replanting
programs. These developments in the long run would lead to full employment and economic
growth and would more than fulfil our international obligations to reduce greenhouse gas

ECITA 162                           SENATE—Legislation                Thursday, 4 March 1999

emissions. Moves in this direction would provide an example to the world on how to prosper
in a harsh environment. Thank you.
  CHAIR—Thank you.
  Mr Hissink—I will not pretend to say that I am on top of this subject matter, because there
are many issues that I have been involved with. I think it is a positive move for the
government to be looking at creating a new act but, as we know, it is very complex and there
are many shortcomings. The three major points I have picked up on are: that the Common-
wealth environment minister can intervene in destructive environmental developments by the
states; that penalties for environmental protection infringements are of a substantial order and
enforcement procedures can be significantly powerful—however, I understand from past
examples that infringements are often not really enforced—and that, in the bill, protection of
wetlands seems to be quite well covered.
  I tend to view environmental problems in a global fashion. I would like to reiterate what
the Nature and Society Forum representatives have said about the impact of high energy
consumer lifestyles that impact on biodiversity. Over the 20 years or so that I have been
involved with the environment movement, I still do not think many people realise the impact
our high energy lifestyles have on biodiversity. We do have recycling, energy efficient light
globes, gas-powered cars and so on. There are a lot of great initiatives that have been
implemented over the years because people have become aware of the environment, and
government and business are starting to implement these things. However, I think the next
stage will be for people to address their lifestyles to see if they can minimise the impact on
biodiversity, on the environment, through changing their lifestyles. I do not think that the bill
really addresses that issue.
  I am also very concerned that the bill will leave Australia wide open to the impact of the
Multilateral Agreement on Investment, which I am glad to say was questioned and rejected
to some extent by the government and also the GATT process. I think global massive
consumer economic growth is going to put a huge impact on the environment, and I think there
are many areas of the bill that are wide open to problem areas. The list of matters of national
significance is very narrow, for instance. I am really concerned that the government is
abrogating responsibility to the states. Hinchinbrook has been mentioned already. Jabiluka in
Kakadu is another problem area where the states allow certain developments, and ESD
processes are often insignificant and overridden.
  Personally, I have been involved with coordinating the anti-woodchipping campaign since
about the 1980s, and it concerns me that the regional forest agreements have negotiated only
minimum standards for environmental impact assessment. If the RFA—the regional forest
agreements—are in place, the forestry commission can now go into a forest and carry out
logging on quite steep country through creeks and so on and the public has no recourse—as
they have had in the past—no legal way to stop the forestry commission from doing that sort
of damage. That is my understanding of the problems the act has in regard to protection of
  Again, as I say, I am not an expert on all of these. I have a broad view of protection of the
environment and I think the priority these days has to be for all of us to address our standard
of living to try to ensure that we adopt standards of living that will have a minimal impact
on the environment. I hope that the act will come up with those sorts of guidelines.
  CHAIR—Thank you very much, Mr Hissink. Mr Odgers, in your submission you say that
the bill provides almost no environmental standards in relation to accreditation of state

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processes, but aren’t you aware that the bill contains a number of rigorous standards in relation
to bilateral agreements? For example, the minister can enter into a bilateral agreement relating
to listed threatened species and ecological communities only if he is satisfied that the
agreement accords with the objects of the bill, is not inconsistent with Australia’s obligations
under the Biodiversity Convention, the APIA Convention or the CITES Convention; will
promote the survival and/or enhance the conservation status of each species or community to
which it relates; and is not inconsistent with any recovery plan for the species or community
or threat abatement plan.
   These in themselves are very stringent safeguards, but in addition there can be further
requirements listed in the regulations. So surely, wouldn’t you agree that the bill does contain
a lot of safeguards? In view of that, can you really justify your assertion that the bill provides
almost no standards for the accreditation of state processes when all of the above conditions
have to be met? That is a pretty broad statement that you have made, and it is certainly not
consistent with what the bill actually contains—or so it would seem to me.
   Mr Odgers—I wrote this. I would not have wished to make such a broad statement, and
I cannot find it for the moment. Certainly the accreditation process has been of major concern
to us, because it is founded upon heads of national significance which are restricted in the
extreme with respect to just a few headings of national interest. I refer to a second order list
of national interest which we would like to see in the legislation because it expands the scope
of such accreditation agreements and provides a broader range of thinking, a more integrated
whole-of-government approach to the thinking of what are environmental problems of national
   Secondly, the accreditation process is certainly founded upon this sort of quasi constitutional
acknowledgment of respective roles, responsibilities and functions, but the proof of the pudding
is in the eating; it is in the detail. We have not seen the fine detail of these agreements yet.
They certainly have not been made available for public scrutiny. It is an objective at this stage.
We would like to see them exposed to public scrutiny as they evolve.
   CHAIR—But, as I said, the bilateral agreements do have to meet the criteria which I
mentioned. They are fairly strict.
   Mr Odgers—Yes, I am familiar with the bill. It is typical of environmental legislation that
the subordinate legislation or rules or codes are sometimes even more important than the
primary statute itself.
   CHAIR—Dr Furnass, you criticised the bill for not really providing enough commitment
to principles of ecologically sustainable development. Again, wouldn’t you agree that the
promotion of ecologically sustainable development as an objective is set out in the bill in
clause 3(1)(b)? The minister must also consider ecologically sustainable development principles
where this is appropriate—for example, in relation to approvals and conditions relating to
proposals, clause 136(2)(a); making recovery plans, clause 273(c); threat abatement plans,
clause 271(3)(c); wildlife conservation plans, clause 287(3)(c) and making a conservation order,
clause 464(3). So there seems to me to be a lot of emphasis on ecologically sustainable
   Also, wouldn’t you agree that applying ecologically sustainable development principles
indiscriminately to all decisions would not be appropriate? For example, how would the
principles of ecologically sustainable development be relevant to the listing of an endangered
species where the bill currently requires the minister to consider only matters that relate to
the survival of a species? There are really two questions there: firstly, don’t you agree that

ECITA 164                           SENATE—Legislation                 Thursday, 4 March 1999

there is already a lot of reference to the ESD principles in the bill and that ESD principles
are not always appropriate to a decision as required under this bill in terms of the example
that I gave?
  Dr Furnass—The burden of my argument is that, while it is stated in the document, I agree,
that ESD principles are followed or said to be followed, there are two things that do concern
me: firstly, there is the tendency of the Commonwealth to devolve authority for decision
making to the states. The other thing that concerns me is the lack of recognition of the
importance of the environment.
   I talk now really from the biological point of view. I believe that, if the environment packs
up, the economic systems pack up. We are still inheriting a system from the 1980s in which
we have economies, the central focus of political activity, and attached to the economy are
human welfare and ecological matters. We believe that in the next century, as Professor Lowe
said in his State of Environment Australia report, we have to radically change that to have
ecological sustainability as a primary focus and the economy contained within that focus. In
other words, a lot of decisions are still made on economic grounds and that is why we think
it is absolutely crucial that sustainability should be built into every economic decision—in
other words, a long-term decision not a short-term decision. I referred to the worst practice
which is cotton farming: damming a river where the flow is already restricted and irrigating
local farmland. It is very good for the economy of the few people who own the cotton; it is
very bad for the total economy of the country.
  I think your second point about biodiversity is crucially related to ESD questions. For
example, it is usually thought that forestry, for example, is simply a question of logging and
woodchipping and the economic profits from those. It is not generally recognised that forestry
really destroys ecosystems. So the decision on ESD must take into consideration the fact that
one is destroying not just trees but also the whole biodiversity around the trees. There is great
biodiversity in the forest, and this is not only for the animals and plants for their own sake
but from the point of view of harvesting medically potential pharmaceutical products in old-
growth forests. I think biodiversity is crucial for the future and it should certainly be included
in the ESD principles.
  CHAIR—Thank you very much.
  Senator ALLISON—You say in your submission that the environment minister making the
decision about whether the approvals process is triggered is a good thing. You would have
heard the previous witnesses who regarded the lack of appeal for those decisions as being a
major flaw in the bill. Could you comment on that, please?
  Dr Furnass—I heard Peter Cochrane and the mining industry representative referring to that
anxiety, and it is one that we share. We are apprehensive, too, that there is no consistency
across the bill with respect to appeal provisions. They are there, commendably, in some
sections but they are absent without obvious reason in other areas. We think there should be
consistency with respect to appeal provisions and with respect to the general provisions for
community participation—which one might see as preventive appeal provisions—as early as
possible in the process. We think the bill could be improved in those respects.
   Senator ALLISON—Most witnesses have come to the committee and said that they would
like at least to see the framework of bilateral agreements before the legislation is addressed
by the parliament. Is that your view as well, or do you hold the view that we should have all
of the bilateral agreements on the table before the bill is dealt with? What is an appropriate

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process for these agreements? Should we agree on the framework of them? Are you
comfortable with the way in which they are not part of the bill?
  Mr Odgers—I think we share apprehension with other community organisations—but I
know the minister takes a different view, that there has been adequate public consultation. But
some of the cornerstones of the bill, namely COAG agreements on roles and responsibilities,
for example, or the heads of national interest or national significance, were formulated behind
closed doors. There was no public review process with respect to that. Those provisions have
become entrenched in the bill which, as we argue, narrows its potential effectiveness in terms
of Commonwealth leadership and powers. Therefore this anxiety arising from the earlier closed
door formulation of the principles and guidelines affects this. Accreditation is so important.
  I know we share with other groups the feeling that we would like to see some more
guarantees of what would be in these agreements, otherwise we are forced to interpret them
in the light of past experience where you have this traditional tension between a conserver
and the Commonwealth and a developmental state. In those areas like transport and agriculture,
the states with their natural resource responsibilities have first call on environmental impact
assessment and could well, under these accreditation agreements, run with them. It would be
helpful to get some more information of a less general and vague nature than we have in the
bill at the moment.
  Mr Hissink—Let me just add that a lot of the information I have gleaned comes from work
that the ACF and Greenpeace and other major environment groups have done on the bilateral
agreement. They say here that, where a bilateral agreement between the Commonwealth and
a state territory is in place, the national environment minister comes to an arrangement with
the state minister that they can give approval or run the environment impact assessment
process. The bill does not require the national minister to insist on certain standards. The
agreement is not required to be available for public scrutiny. I think that speaks for itself there.
That needs to be tightened up.
  Senator ALLISON—A number of groups have come to the committee—and it is not in
your submission but I want to ask you about it anyway—with concerns about standing. Do
you believe that individuals ought to be able to have standing under this legislation? How
would you like to see the bill modified, if at all, in that respect?
  Mr Odgers—Michael, you may have a view on this.
  Mr Hissink—Yes. I need a bit of clarification. When you say—
  Mr Odgers—I must say that I have looked at provisions for standing. I am no lawyer but
I have looked at provisions in here. With the shift from governments to community
organisations with respect to participating in the formulation of issues and public policies, the
democratic processes are such that the more effective participation is group participation. So
I think that standing ought to be readily accorded to the public interest and advocacy and
community based groups. But perhaps for practical reasons there should be some restrictions
on open standing for individuals.
  Senator ALLISON—I think the concern was that a group which came together for the
purpose of taking action would not have standing. So whilst conservation groups with a history
of involvement and activity in a particular area would, others would not.
  Mr Hissink—Using the ACT as an example, the tendency for the ACT government now
is to provide grants to community based organisations across the board. Rather than just
focusing on peak traditional organisations, they have found it more fruitful in terms of

ECITA 166                           SENATE—Legislation                Thursday, 4 March 1999

feedback to governments and assistance with governments to look at applications that come
forward from a diverse range of grassroots organisations—community groups and councils,
for example, which have proliferated in recent years. I think it would be an unnecessary
restriction to confine it to established political organisations.
   Senator ALLISON—You say that coverage of Ramsar wetlands and migratory species is
one of the positive aspects of the bill. You also say that the enforcement regime is strong and
penalties are substantial but that history has shown that prosecutions are rare and the penalties
are usually much less in the courts than they have been legislated for. Is it possible that under
bilateral agreements, where at least some agreement has been reached between the states, the
enforcement regime will be strengthened rather than reduced? It seems to me that what the
government has tried to do under this legislation is to allow them to move towards being able
to be effective in terms of enforcement. Whether they have succeeded is another question, but
do you at least concede that is an attempt that has been made with this bill? Do the bilateral
agreements—given that we do not know what they are, of course—offer a possibility for
bringing about stronger enforcement measures?
   Dr Furnass—Under the role of the Commonwealth—section 1.1 on page 3 of the
document—it says, ‘The most significant outcome from the COAG review is the agreement
that the Commonwealth role should be focused on matters of national environmental
significance. The Commonwealth should not be involved in matters of only local or state
significance.’ The issue is that the Murray-Darling system runs through four states and by the
time it gets to South Australia the degree of salination is such that it is almost undrinkable.
Do you believe the Commonwealth should leave it to all the states to legislate for their little
bit of river, or do you think the Commonwealth should have an overriding say in what is, after
all, Australia’s major waterway? Is it good enough to leave it to the states to make decisions
about this?
   Mr Odgers—The other thing in Michael’s submission too, is that under the wetlands—
   Mr Hissink—Yes, that was one of the positive aspects of the protection of wetlands. That
is well known in the Ramsar agreement. But I just want to allude back to your comments on
standing, that community groups represented will be ‘consulted’—the term usually used. I think
that should be replaced by ‘there should be community participation’, not just consultation.
You can be consulted and then what you say or what you write about an issue will be buried
in paperwork. Being an active participant in the process is what we should try to achieve. Also,
there should be as broad a spectrum of representation as possible from the community, not
just the peak groups.
   Dr Furnass—Who is responsible for the Murray-Darling system?
   Senator ALLISON—I think we all know that there are too many people responsible, Dr
Furnass, but at the same time I suppose you could ask realistically what sort of monitoring
and involvement the Commonwealth can have. Presumably we do not want the federal
government involved in every small application for irrigation.
   Dr Furnass—No, but the federal government could put out a strategic plan relating to the
quality of the water. Any infringement of that quality, such as massive irrigation, should be
of concern to the Commonwealth.
   Senator ALLISON—I would agree.
   CHAIR—Senator Bolkus was going to ask you some questions on the standing, but he has
decided to leave them.

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  Mr Hissink—I was not able to respond to your question about the system for accreditation
of the states. Again a major part of the new legislation rests on matters of national
significance—and I think that is a major point here—being managed on the ground by states,
and I think that is abrogation by the federal government of a responsibility to protect the whole
nation and not leave it to the states. And that management is to be according to accredited
processes and standards. However, the bill provides almost no details about how accreditation
would work, what standards would be required and how the public would be involved. We
really need to know that to know how good this bill is going to be.
  CHAIR—We dealt with the question of standards when I asked a question of an earlier
submitter about that. The Commonwealth proposes to lay down fairly strict standards and, of
course, apart from the matters listed as triggers, the Commonwealth does cover a lot of other
environmental issues, for example under the hazardous waste legislation, the Ozone Protection
Act, the Environment Protection (Sea Dumping) Act, the Great Barrier Reef Marine Park Act,
the National Environment Protection Council Act, the Quarantine Act, the Agricultural and
Veterinary Chemicals Act and the industrial chemicals legislation. The Natural Heritage Trust
involves the Commonwealth in a wide range of things too. So the scope of Commonwealth
involvement is far wider than the listed triggers, I assure you.
  Thank you, Mr Hissink and the other witnesses, for your submissions this morning. I assure
you that the evidence you have given will be taken into consideration when we are drawing
up the report, and we thank you for being here today. Thank you very much indeed.

ECITA 168                            SENATE—Legislation                 Thursday, 4 March 1999

[10.17 a.m.]
DWYER, Mr Mark, Chair, Australian Planning and Environmental Law Committee,
General Practice Section, Law Council of Australia
HARVEY, Ms Christine Susan, Deputy Secretary-General, Law Council of Australia
BRADBURY, Mr Alan, National President, National Environmental Law Association
ROSE, Mr Gregory Lawrence, Secretary, National Environmental Law Association
  CHAIR—Welcome. The committee prefers all evidence to be evidence to be given in public,
but you may at any time request that your evidence, part of your evidence, or answers to
specific questions be given in private, and the committee will consider any such request. I
point out, however, that evidence taken in camera may subsequently be made public by order
of the Senate.
  The committee has before it submissions Nos 522, dated 31 August 1998, and 610, dated
7 October 1998. Are there any alterations or additions you wish to make to your submissions
at this stage? You will get an opportunity to make an opening statement as well, but this is
just for alterations and additions.
  Mr Rose—An additional information sheet was circulated to members of the committee
yesterday, on behalf of the National Environmental Law Association, providing dot points to
today’s presentation.
  CHAIR—Yes, it is before us.
  Mr Rose—There is an error in it. The Audit Act 1901 is referred to in the second set of
dot points, near the end. That should be the Auditor-General Act 1997. The provisions of the
Audit Act have been taken up into the superseding act. It is just a technical point.
  CHAIR—Thank you very much for making that correction. I now invite each of you, in
turn, to make an opening statement. At the conclusion of your remarks we will proceed to
questions. I point out, however, that there is a time limitation on each set of witnesses. In your
case, it is 45 minutes. The longer the opening statement, the shorter the period for questions,
so I will leave it to you. Who wishes to go first?
  Mr Bradbury—I am happy to start on behalf of the association, but I do not want to steal
the Law Council’s thunder. I want to emphasise a couple of important points in the written
submission that the association has submitted, and then Mr Rose has some comments to make
in relation to some administrative issues.
  First of all, the association sees a risk in the way that the issue of national significance has
been defined. The risk is that, somewhere down the track, an issue is going to arise which the
Commonwealth thinks it really ought to be involved in but, because of the way that the bill
is drawn at the moment, it will slip through the cracks. The association sees it as very
important that there be an easier way than is proposed in the current bill for some sort of
catch-all provision to be included so that the environment minister can form a view that a
particular matter that is not otherwise dealt with in the bill is a matter of national significance
that ought to attract Commonwealth attention.
  The process at the moment, which enables additional matters to be included through the
regulations, involves a process of consultation with each of the states and territories. That is
appropriate as a matter of principle but the quality that the Commonwealth might think is
important and worthy of preservation may be gone by the time the processes have been gone
through to add the additional matter of national significance to the list. That is the first point.

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 169

   The second point, which I think the previous submitters were also raising, was the issue of
involving all of the principles of ecologically sustainable development in the bill. It is good
to see, and we applaud, the inclusion specifically of the precautionary principle as one of the
things that need to be taken into account in making decisions under the proposed act. But there
are other aspects of ESD that ought also to be referred to specifically in the bill. Issues of
intergenerational equity and the polluter pays principle are things that could be incorporated
in a meaningful way in the bill but are not at the moment.
   Thirdly, in relation to the bilateral agreements, our point to emphasise, at least in relation
to those, is a simple one. Because the effect of the bilateral agreements can be to remove
particular types of development from the environmental assessment process and the approval
process under the bill, it is important that there be included in the bill a requirement for public
participation in the preparation of the bilateral agreements.
   Lastly, you would be surprised if an environmental law association did not have something
to say on standing. The proposed provisions in the bill in relation to standing do not go far
enough, we say. There is always the old chestnut of opening the floodgates to litigation, which
the Commonwealth seems to have taken very much to heart. As an environmental lawyer I
must say it is quite sad to see that the body of environmental case law in the Commonwealth
area comprises more cases concerned with whether people are entitled to bring their actions
to the courts than with elucidating the provisions of the legislation that the actions have been
brought under. Certainly, leads taken in other jurisdictions enable any person to bring
proceedings to enforce the provisions of the act—the Commonwealth’s own Trade Practices
Act enables the same sorts of proceedings to be taken—and the experience in New South
Wales with section 123 of the Environmental Planning and Assessment Act demonstrates that
the floodgates argument holds no water at all, if you will excuse the pun.
   The other aspect to enforcement and standing is the possibility of enabling people, in their
own capacity, to take proceedings to prosecute people for breaches of the act. I am going one
step further than civil enforcement. This is a measure that has been taken in other jurisdictions
overseas and is something that we think is worth looking at.
   The other aspect of the bill that we wanted to comment on relates to NELA’s proposal that
the Commonwealth consider the appointment of a commissioner for the environment. Mr Rose
is going to address that point and some related issues.
   CHAIR—Can you do it very quickly, Mr Rose, because we still have to hear from Ms
Harvey, and it limits the time for questioning.
   Mr Rose—My comments are confined to chapter 6, the administration of the act, and in
particular the appointment of a commissioner. Perhaps the best way to illustrate the point is
if you as senators were to consider yourselves as life peers in the House of Lords—
   CHAIR—I am a republican, I am afraid. That is completely impossible for me to even begin
to contemplate.
   Mr Rose—There are great advantages to being a life peer because one is not particularly
accountable for one’s actions or to an electorate. There is a similar situation applicable at
present in relation to administration of environmental policies, where the policies are created
and often sit on the shelf and when they become defunct they are not officially even declared
defunct—there is no process of monitoring their implementation. In fact, in its review of
Australia’s environmental performance, the Organisation for Economic Cooperation and
Development pointed out that there was a need for quantifiable goals and clear criteria against

ECITA 170                           SENATE—Legislation                Thursday, 4 March 1999

which performance could be measured and that we lacked that in our current environmental
policy administrative structure.
   One approach to remedying that is the creation of a commissioner for the environment. That
has been taken up in Canada, which was recently recognised by the UN as having adopted
best practice in that regard. The commissioner is an officer of the Auditor-General’s
department and he basically audits environmental performance. In Australia we already have
provisions for what is called performance auditing, value for money auditing, under the
Auditor-General Act 1997. That is basically what the environment commissioner does—he
looks for value for money in the performance of responsibilities by government in fulfilling
its environmental commitments. The commitments that are looked at are those set out in
legislation, in published policy, under international obligations. Bilateral agreements, as
proposed under the current bill, would be another example.
   An important plank in the commissioner proposal is the adoption of sustainable development
strategies. I was reading earlier this morning the submission that was made by the
Environmental Defenders Office and I noticed they had made the same point so I will not
belabour it. I was in Ottawa a few weeks ago as part of a research project, meeting with the
commissioner, the Auditor-General and so on and gathering information, and the advantage
of the sustainable development strategy is that it spreads the responsibility for environmental
performance beyond the environment department, beyond Environment Australia. Each
department formulates its own sustainable development strategy in accordance with guidelines
that are about the internal management of the department in terms of its policy process and
its actual resources management. Those sustainable development strategies are audited by the
commissioner. The commissioner reports to parliament annually and he publishes his audits.
That is the essence of our presentation in relation to an Auditor-General.
   There are two other aspects in relation to good administration which I will only say two
things about. One is that state of environment reporting, which establishes baselines and
monitors progress in environmental management, is not provided for in the bill and should
be. The second point is that corporate environmental performance, which is being audited
voluntarily by some of Australia’s major corporations, like BHP, Western Mining, North Ltd,
and published by them voluntarily in reports, is also not addressed in any way in the bill. That
sort of good practice could be fostered. There is always the risk that because it is not provided
for it might be considered beyond Commonwealth powers. It is obviously within Common-
wealth powers under the corporations power in section 51 of the Constitution. We would
therefore like to see provision made in relation to corporate environmental management
systems and reporting.
   CHAIR—Thank you, Mr Rose. I thought your reference to the Canadian legislation was
interesting, so we might ask you about that later. Ms Harvey.
   Ms Harvey—Mr Dwyer is the chair of our specialist committee and will make the opening
address on behalf of the Law Council.
   Mr Dwyer—In the interests of time, can I say that on a number of the issues that NELA
has raised we would simply adopt their general comments. The Law Council has taken a
slightly softer view of the legislation than some other submitters and we would like to note
for the record some of the key positives in this legislation. In reflecting back on the bill
synopsis, this legislation certainly does provide greater certainty for the Commonwealth’s role
in environmental matters and certainly in a number of areas improves the processing, creating
earlier triggers, and triggers which can be followed through by the relevant environmental

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 171

minister rather than other ministers. If the key objectives that are set out at the front end of
the legislation are met, then the Law Council would give warm support to this legislation.
  The problem is that we do not see that all of the benefits that are suggested to follow
through in this bill will in fact be achieved and we are not convinced that it will necessarily
ensure higher environmental standards than under the existing legislation. Perhaps I can just
mention two essential parts of our submission, then we can follow those through with
questions, if that is appropriate.
  We have some concerns with specific issues of detail: the limitations on issues of national
environmental significance, which has been raised by a number of submitters; and the
limitations on bilateral agreements, how and when they will operate, what the detail of them
might be and the fact that they will really only operate in relation to the states’ consideration
of Commonwealth type issues rather than necessarily leading to an improvement of state
environmental impact processes generally. We have a concern with the breadth of ministerial
exemptions allowed for under the act and, in line with NELA, we have some concerns about
the potential limitations on standing.
   The key concern of the Law Council is if the bill represents an abrogation of the
Commonwealth’s involvement in environmental decision making without passing on to the
states or being part of a COAG agreement with the states to improve their environmental
impact assessment procedures, then there are too many issues of national or regional
importance that could fall between the cracks. What are needed as part of this legislation—and
it should not be brought into force until then—are appropriate state environment impact
processes in a sort of nationally uniform, consistent or codified form. At present there are
insufficient moves amongst the environment ministers in that direction, and vast differences
of approach and detail amongst the states. In fact, some states have almost no formal
environment impact assessment processes. That would leave us with a concern that issues of
national significance will drop out of the Commonwealth legislation and will not be
sufficiently picked up in appropriate state processes.
  CHAIR—Thank you very much. I will now open the forum to questions.
  Senator BOLKUS—Just on that last point, can you identify for us the states that do not
have the formal EIS processes?
  Mr Dwyer—It is a question of what the level of the process is sometimes, rather than what
the extent of the process is. Certainly in some states it is simply left to ministerial discretion
in terms of informal panels that are not backed by significant legislation. That occurs in, for
example, the Northern Territory and, to a lesser extent, in Western Australia. Even in the states
that do have formal processes, like Victoria and New South Wales, they are very different
processes in terms of levels of public consultation, whether the process occurs at the front end
of the proposal or at the tail end, whether it is a recommendation that triggers a process of
further investigation or whether it is the tail end of that investigation. There is really just no
  Senator BOLKUS—I wonder if you can take on notice a request to provide us with a
critique of the state EIS processes? It is going to be a critical part of the debate as we have
been asked to potentially off-load a lot of responsibilities to the states. If you could do that
for us, that would be appreciated.
  Mr Dwyer—I am happy to do so.

ECITA 172                            SENATE—Legislation                  Thursday, 4 March 1999

  Senator BOLKUS—I turn to the question of judicial standing. It has been put to us that
New South Wales has a much more open system. There is a two-year limitation which is
embodied in the government’s proposals here. Maybe both submitters could discuss this for
us. Where do you see the major differences between what has been proposed and New South
Wales? Is it just the two years or do you see other subtleties in the differences?
   Mr Bradbury—I think there are other differences. It was not the two years that my
comments were directed at. The provisions in the bill at the moment open up standing to some
extent. They restrict standing to people who have an interest in the matter concerned—which
is essentially the situation we have at the moment—or to people who have demonstrated that
they have engaged in some relevant environmental activity in the previous two years.
  What it misses is borne out by a case a few years ago between the ACF and the
Commonwealth before Justice Davies in the Federal Court. There were two related applications
brought—one by the ACF and one by an individual. The individual shared the same general
concerns as the ACF. His own property interests were not involved. Adopting the rules of
standing that the courts have developed, the ACF was allowed to bring the case but not the
private individual, which seemed a ridiculous outcome. It seems to us that the sorts of
measures that have been included in the bill at the moment just lead one to an unduly technical
review of what people have been up to in the last couple of years to determine whether or not
they are entitled to bring the action. If they have a legitimate concern, and they are prepared
to put the dollars up to run it, we would say they should be allowed to do that.
  Senator BOLKUS—When did the New South Wales legislation come into force?
   Mr Bradbury—On 1 September 1980. So there has been a long time for it to have any bugs
worked out. The experience has clearly shown that it has not been abused and that the system
is able to deal with all of the applications that come before it.
  Senator BOLKUS—Have any other jurisdictions come close to the New South Wales
  Mr Bradbury—That is a good question. I do not know that I can answer that.
   Mr Dwyer—Victoria, to a lesser extent, under the Environment Effects Act 1974. There
is no general standing to an ordinary member of the community to trigger the process, although
it is common for them to request that a process be triggered, and the minister can exercise
his discretion in that regard. However, under the Planning and Environment Act in Victoria,
which is a much more recent act, there is an any person provision in relation to enforcement
of environmental issues that relate to land use generally. It is similar but not quite as broad
as section 123 in the New South Wales legislation.
  Mr Bradbury—It has occurred to me, now we have started talking about it, that there are
also similar provisions in the ACT legislation.
  Mr Dwyer—Perhaps I can just expand on that by saying, firstly, that the concern of the
Law Council of Australia in relation to that standing issue is again not just on the two-year
issue. It is the fact that proponents, ministers, state governments and Commonwealth agencies
can trigger the process almost as of right for other people, even those that might pass some
test of standing. There is not even clearly within the legislation a right to request that a process
be triggered or any codification of the circumstances in which that request might be considered
or activated. So we would simply leave it up to the political lobbying by other groups who
might seek to activate the process through a minister or a government agency.

Thursday, 4 March 1999               SENATE—Legislation                                 ECITA 173

   Secondly, in relation to the two-year restriction, in one sense the proposed legislation is not
as bad as it seems in that the section that deals with the two-year rule does say it is an attempt
to add to the existing common law principles of standing by saying that, in addition to anyone
else who might have standing, people that have been in a group for more than two years
almost have automatic standing. That is to remove the doubt or debate about those groups that
have longer term involvement in environmental issues. That in itself is not such a bad thing.
It is just that, why should it be an arbitrary two-year limit? Why shouldn’t any group which
has justifiable standing because of their involvement in environmental issues or their being
specifically aggrieved with a particular proposal have that same right of standing? It just seems
two years is arbitrary and serves no useful purpose.
  Senator BOLKUS—Most, if not all, of the environmental issues that I have known of in
the last 20 to 25 years have had a longer gestation period than two years. So in practical terms,
would it really mean anything having this sort of barrier? There is hardly an issue where
someone or a group of people have not really been agitating for quite some time.
  Mr Dwyer—I guess the only response to that is to say one of the benefits of this act is to
provide for environmental impact assessment more frequently at the front end of a development
proposal rather than very late in the piece, so that there would be less opportunity for that
building up of concern by particular groups. People have to be motivated and in a position
to move fairly quickly. That two-year rule might knock out some people that have legitimate
grievances and have come together as a group to pursue that.
  Senator BOLKUS—You both have concerns about matters of national environmental
significance. You say that the trigger is related to too limited a range. Can you both specify
what your concerns there are? What are the issues that you think should be included that are
  Mr Bradbury—I think in our written submission we have indicated a couple of examples.
One is issues dealt with by the Commonwealth in international treaties that we would have
thought by their very nature are things that the Commonwealth would treat as matters of
national significance. There are also matters that are dealt with by the National Environment
Protection Council which, in a different way, have a national flavour to them. Neither is
specifically drawn out by the bill. That is one part of it.
  I think our major concern is that, whenever you start making a list, you inevitably leave
something out. The process that the bill proposes for adding to the list is such a cumbersome
one that the damage will be done before an opportunity has been taken to fix the problem.
  Senator BOLKUS—It normally takes a long court case before someone interprets the
currently prevailing provisions broadly enough to include what you are trying to do anyway.
  Mr Bradbury—That is true.
  Senator BOLKUS—I will move from that because you do mention them in your
submission. I just wanted to highlight it. The scope of ministerial power, for instance, is
something which you both share concerns about in terms of declarations and exemptions and
unfettered exercise of decision making. Can you both expand on what your concerns there are?
   Mr Dwyer—The concern is not so much that there might be political intervention in the
process. I guess that is always a concern, but it is a matter of political and practical reality.
I think the concern is that the circumstances in which that might occur are not codified or set
out in the act, so that there is an unfettered opportunity for political intervention in the process,

ECITA 174                            SENATE—Legislation                  Thursday, 4 March 1999

particularly in clause 32, that just deals with the opportunity for the minister of the day to
indicate that a particular proposal or issue is not a matter which will be governed by this act.
  There are some other provisions of the act where there is a fetter placed on the exercise of
ministerial power and the minister must consider issues of national security or issues of
national significance. I think clause 28 might be an example of that. They are very limited
in the circumstances in which they apply.
  In too many other cases there is not that fetter on when the minister can intervene and when
he cannot. The corollary of that is that, if there was an issue of national significance—say,
land degradation, salinity, greenhouse gas emissions, one of the areas that is not covered under
the key headings of national environmental significance—and the minister wanted to intervene
or opt out, the circumstances in which he could do that are not clear at all from the face of
the act.
  Senator BOLKUS—That is what you are referring to when you refer to matters of
government initiatives not being included in the definition?
   Mr Dwyer—Yes, I think so. Again, the corollary of that is that there is another provision
further in the bill which suggests that, when the matter does proceed through an environment
impact process concerning matters of national significance, the minister is only bound to
consider, and in some senses can only consider, the issue which has triggered the environment
impact assessment. That is a key issue of concern. If the matter has been triggered because
it is a world heritage listed property, then one would suspect that if there were still other issues
of national environmental significance, such as greenhouse gas emissions or salinity or other
issues, they should clearly be able to be considered as part of that process rather than
arbitrarily removed from the process because only the trigger point becomes the issue of
  Senator BOLKUS—I did notice that. My feeling is that, if you could not consider
everything at once, it would lead to duplicated processes, and more drawn out processes as
well. I suppose that is your concern as well, or one of your concerns.
  Mr Dwyer—It is one of the concerns but, if you are doing a proper environment impact
assessment, it should be covering all of those issues in a proper preliminary environment report
or an environment impact report.
  Senator BOLKUS—My last question at this stage is on the auditing suggestion. Do you
think it would be compatible with the current Auditor-General’s powers to give them the
function that you suggest goes to an independent person?
   Mr Rose—I think it would be. In fact, that is the practice in Canada where it was the
Auditor-General’s act which was amended in order to create the commissioner for the
environment. There are obvious linkages between the commissioner as set up in the Auditor-
General’s office and environmental administration, and he works with Environment Canada
in that context. It would be appropriate to also have references to that role within the
Environment Protection and Biodiversity Conservation Bill. But the actual auditing practice
is as set out in the Auditor-General’s act.
  Our Auditor-General Act provides for not just financial auditing, where you are looking at
the dollar bottom line, but also performance quality auditing, where you look at what they call
‘value for money’. That is basically what this is about.

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 175

  Senator BOLKUS—Okay. You may have to redefine some of the economic imperatives
that the Auditor-General operates under—for instance, whether you are looking at longer-term
benefits to the environment over short-term financial imperatives.
  Mr Rose—I suppose the Auditor-General is basically looking for good governance in
financial management of government agencies and institutions and does not take a policy role
as to what the economic imperatives of a particular policy course are. Similarly, the
environmental commissioner does not have a policy role. Policy is for ministers and their
departments; the inspection of proper execution of functions is what the Auditor-General
examines. He looks to see whether the policy targets have been fulfilled, whether the
improvements vaunted in a particular sector of the environment are being achieved and whether
the government has put in place machinery required under commitment (a), (b) or (c).
  Senator BOLKUS—Thank you.
  Senator ALLISON—If I can pursue that point, I must say that I am attracted to this idea
and I wonder whether in Canada the states have complementary environment auditors too.
Would you need to set up a system of auditors or would the Commonwealth need to have
auditor’s offices in each regional centre in every state? What sort of a spread does this audit
office have, how expensive is it, and how does it relate to the states?
  Mr Rose—Some of these questions I can answer, some I will take on notice and for some
there are no answers yet. The Auditor-General’s office in Canada audits its own costs, so it
subjects itself to the same performance management examination. This particular commissioner
role was created in 1995. The first report that came out in 1997 described how the functions
of the commissioner were being established and were going to be executed. The second report
looked at the sustainable development strategy. So it is just in its early developmental stages.
  Ontario has a commissioner for the environment, but that is largely as an ombudsperson
rather than as an auditor. A commissioner can have various roles. In terms of auditing,
apparently there is a world association of supreme audit offices, of which our National Audit
Office is a member. Within that organisation, they have links between environmental audit
officers within those national departments.
  Senator ALLISON—But we have a blank space in Australia where that—
  Mr Rose—The Productivity Commission did its study of productivity of land management,
which is getting close, but it was not taken as an audit. What the commissioner in Canada
found was that there had been 44 audits performed by the Auditor-General’s department on
things that related to environment matters but which never had the profile and were never done
in a coherent way associated with overall management of environmental policy performance.
So it could be that our National Audit Office has done some before, but I have not had a
chance to investigate that yet.
  Senator ALLISON—I wonder if you are familiar with the rest of the bill too. The mining
councils and industry generally have said to the committee that they think this bill represents
a command and control approach, which they say is located somewhere back in the fifties to
the seventies in terms of best practice, and that it does not recognise where industry is at in
improving performance and being self-monitoring. Is that your view too? Should the committee
take a detailed look at the Canadian legislation? Is it world’s best practice?
  Mr Rose—I suppose an emotional reaction is that it is very sad and disappointing how many
opportunities are missed in this bill, which is largely a consolidation. And if it is an agenda
for taking Australia’s environmental management infrastructure into the next century, we have

ECITA 176                           SENATE—Legislation                 Thursday, 4 March 1999

lost it because it does not take up these opportunities for industry self-management and mixed
use of economic instruments, such as environmental management systems adopted by the
private sector. They are doing that; they are ahead of government. They are self-regulating
in a way that we are not recognising in this legislation. The Australian government is also not
self-regulating in a way that industry is by doing its own audits and reports on its
environmental performance.
  The legislation is therefore behind in two respects: in fostering industry best practice and
in developing its own best practice. I do think that the Canadian example is best practice in
relation to government monitoring its own environmental performance. I am not aware of what
Canadian or other models there are. Actually, there are US models for fostering industry self-
regulation and best practice which the US EPA has adopted, but I would have to take on notice
further material on that.
  Mr Dwyer—Perhaps I could elaborate a little. I am not sure that the Law Council would
agree with a broad industry view that said this was just a move to command and control. The
problem with the bill is it does not tell us what the ultimate process will be through which
environmental decisions will be made or considered, because it relies on a move back towards
state processes. The benefit for industry is that it takes out the prospect of a ‘late in the day’
Commonwealth process, unless it has been triggered early.
  The key to resolving the concerns that industry may have raised is, again, coming back to
some Commonwealth sponsored or COAG agreement in relation to uniform environmental
impact standards which could contain a range of processes relevant to particular types of
environmental decision making. So where there is forward-thinking industry, where industry
has developed certain environmental management plans or has complied with certain
international standards for implementation of environmental standards in projects, they may
get a fast track through an environment impact assessment process, but those that have not
jumped all those hoops and hurdles in the way in which they have structured their industry
should go through a more formal and more considered process. The key here, in our view,
would still be moving towards getting the process which sits below this act right, so that the
act can work as a good piece of umbrella legislation. At the moment, the concern is that this
legislation is going to come in before that groundwork has been done.
  Senator ALLISON—But the groundwork has been the subject of ongoing discussion
between the federal government and the states probably over years. Would you expect that
this may have been raised? This is highly speculative, of course, and I do not expect you to
know. But, given what you have said, it is unlikely that the variation between states in terms
of processes would not have been discussed. Do you think it is likely that the states simply
agreed to disagree in those COAG meetings?
  Mr Dwyer—There has not been enough political will at this stage to do that. Ten years ago
people said we could not have a uniform building act. Ten years ago people said we could
not have national environmental protection measures and they are starting to come through
now. If the will is there to improve the processes and if there is enough pressure from industry
and other bodies to do that, then it can and will and should happen.
  Senator ALLISON—Mr Bradbury, you say on the second page of your submission that
you find it anomalous that the specific limitation on provision of conservation aid in foreign
countries to the conservation of species is anomalous given the range of issues in our
immediate region. Is that something we should look at expanding? Why do you expect it has
been limited to conservation of species?

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 177

   Mr Bradbury—The reality is that at the moment aid is provided in a range of different
environmental areas. Why this one was singled out for specific mention in the bill was really
the only comment that I am making.
   Senator ALLISON—Would it have the effect of limiting conservation aid?
   Mr Bradbury—I do not think it does. But you wonder, with that in mind, why the provision
has been included at all. I would have preferred to have seen a broader provision that
specifically authorised the giving of aid to cover a range of different environmental matters
of concern within the region and not just locally.
   Senator ALLISON—I am not sure whether you were here this morning, but the mining
and exploration industry said they felt that the provision in the bill whereby the minister could
become involved in activities of Australian individuals or corporations beyond the economic
zone would be interfering with other countries’ activities and inappropriate. Is that your view
too? Do you see anything difficult in that provision in the bill?
   Mr Bradbury—I cannot say that it is something that I have specifically looked at.
   Mr Rose—I am not quite clear on the question.
   Senator ALLISON—An example given was the Timor Sea exploration. I guess I took it
a little further and said, ‘What about Ok Tedi?’ Would this legislation assist the minister to
prevent occurrences of major degradation as a result of mining practices by Australian
   Mr Rose—My understanding is that the legislation is silent as to those matters which are
just governed by the customary principles of international law and the extent of national
legislation. The government currently has constitutional powers under the corporations power
to affect the operation of BHP in PNG. It becomes a question of international comity and good
international relations as to how that affects the relationship with Papua New Guinea and what
its expectations of BHP there are.
   The powers exist. They have not been, as a understand it, limited in this act but they also
have not been provided for in it. There was talk in 1994 of establishing a code of conduct for
corporations overseas and that was scotched on the basis that it would interfere too much with
delicate international relations questions. The legal power exists under the constitution.
Whether or not we choose to exercise it is another matter.
   CHAIR—We have come to the end of the time for this session, Senator Allison, so we have
to wind it up. I thank the witnesses for appearing. The evidence you have given has been
interesting, especially with reference to the Canadian law. I assure you that the committee will
take your evidence into consideration in drawing up its report. Thank you. At this stage we
would like to take a short break for a private meeting of the committee.
                    Proceedings suspended from 10.59 a.m. to 11.08 a.m.

ECITA 178                           SENATE—Legislation                 Thursday, 4 March 1999

[11.08 a.m.]
CRAIK, Dr Wendy, Executive Director, National Farmers Federation
NAGLE, Mr Bill, Chief Executive Officer, Australian Seafood Industry Council
   CHAIR—I welcome Dr Wendy Craik and Mr Bill Nagle to the table. The committee prefers
all evidence to be given in public but you may, at any time, request that your evidence, part
of your evidence or answers to specific questions be given in private and the committee will
consider any such request. I point out, however, that evidence taken in camera may
subsequently be made public by order of the Senate.
   The committee has before it submission No. 530 dated 26 August 1998 and submission No.
154 dated 21 August 1998. Do you have any alterations or additions you would like to make
to your submission at this stage? I now invite you to make an opening statement and, at the
conclusion of your remarks, the senators will question you.
   Dr Craik—Thank you, Senator. I will start off firstly by saying that the National Farmers
Federation welcomes the opportunity to appear before the Senate committee. In principle, the
National Farmers Federation supports the need to update legislation on the environment to
make it relevant to current environmental understanding. Also, it seems valuable to us to
clarify roles and responsibilities in the environmental area. All that seems to be highly
desirable to reduce duplication and to undertake streamlining. We have no problem with the
six criteria the Commonwealth uses for the legislation.
   I should say that as a general principle the NFF supports legislation that is really based on
a cooperative and voluntary approach. There are already something like 500 pieces of land
management legislation in this country, and it is our experience that we get a lot more
cooperation and a lot more positive response if the legislation is encouraging and seeks a
cooperative approach rather than a command and control approach. I suppose we have a
concern with the tenor of this legislation that seems to have a command and control approach
with the emphasis on penalties without a great deal of clarification on what might incur those
   A concern that we do have at the NFF is the brief consultation period that has been
permitted for this legislation. Clearly our constituents are particularly concerned and I think
a lot of that concern results from the fact that they feel they have not been adequately
consulted. There is some uncertainty still in the legislation, so I think it is the not knowing
that clearly causes them concern.
   We see that there are a number of critical questions that remain to be answered and remain
to be elucidated in this legislation. Firstly, what is going to be the content of the regulations,
what is going to be in the administrative guidelines and what is going to be in the bilateral
agreements? All those things are going to determine the impact, outcome and the operation
of the legislation. NFF believes that bilateral agreements ought to be negotiated before the
legislation passes through the parliament so that everybody has an opportunity to see what
is in those bilateral agreements before it actually goes through the parliament.
   Secondly, we do believe that the regulations ought to be available for consultation, again,
before the bill goes through so that we can see what is in those regulations. Thirdly, we also
believe that the administrative guidelines ought to be available for comment.
   In terms of the bilateral agreements, we believe that they should be negotiated rather than
imposed. We do support the removal of ad hoc triggers for environmental assessment and
approval. We are concerned that accreditation of state processes actually leads to streamlining

Thursday, 4 March 1999               SENATE—Legislation                                 ECITA 179

and not duplication. We would support the notion of clarification of the issues that the
Commonwealth is involved in, but we do believe that any additional matters of national
environmental significance ought to be subject to parliamentary scrutiny.
   Another issue that is important to our constituents is that of compensation. It is our view
that land-holders need adequate compensation, not only for acquisition or biodiversity
incentives but where their property rights or amenity of their property is affected by various
restrictions or management plans, we believe that compensation ought to be payable and the
responsibility for paying that compensation ought to be specified in the legislation.
   In terms of the Commonwealth’s commitment to areas of national environmental
significance, again the emphasis there ought to be on compensation for land-holders affected
and also compensation for the states and territories where their activities are affected.
   Another issue of concern to us is the lack of definition of some terms in the legislation, such
as what a significant impact is. How can a land-holder tell if their activity is going to be
significant or not? Another term we believe needs defining is that of action. The lawful
continuation of an activity is not defined as an action, but intensification of a particular activity
is not a continuation. Does that mean that farmers may be restricted from diversifying their
operations without going through an extraordinary bureaucratic process?
   Finally, on the issue of world heritage, it is our view and it has been for a long time that
management plans ought to be negotiated before a world heritage site is actually listed or
proposed for listing. We have all seen the Willandra Lakes issue where it dragged on for 15
or 17 years before all those issues were resolved. We believe in the interests of certainty for
everybody involved that management plans ought to be negotiated beforehand. Thank you.
   Mr Nagle—I represent the seafood industry. For the purposes of this discussion, I will be
referring to the commercial fishing sector or commercial fishermen, so you can think of our
organisation essentially as the NFF for fish, if you are unfamiliar with our group.
   The commercial fishing industries have a vital interest in environmental issues. In our
association we spend about half our time dealing with a myriad of environmental issues.
Therefore, we dearly would like to see clear and transparent environmental regulations and
processes established, particularly sorting out the overlapping mess between the state and
Commonwealth levels of environmental regulation whilst at the same time maintaining the
core principles that currently govern fisheries management arrangements in this country, which
are based on co-management arrangements. I will come back to that later.
   Our main point is that the fishing industry was a strong supporter of the original COAG or
heads of government agreement on allocating responsibilities for environment management
as between the Commonwealth and the states. This legislation, in my understanding, stems
from a November 1997 COAG agreement which gave in principle endorsement of a range of
points, particularly sorting out the Commonwealth responsibilities and interests, such that they
are focused on matters which are of genuine national environmental significance, and to
streamline and increase the level of transparency and certainty in relation to environmental
assessment and approvals processes. We were 100 per cent behind that framework in the
COAG agreement, back in November 1997.
   We saw this reform as, essentially, keeping the Commonwealth completely out of state
fisheries issues, particularly the nitty-gritty management decisions which are the day-to-day
fare of state fisheries management regulators and the industry itself, and ensuring that the
Commonwealth requirements were streamlined so that industry would not be burdened with
having to deal with multiple agencies. At the moment, the fishing industry is a bit unlike a

ECITA 180                           SENATE—Legislation                 Thursday, 4 March 1999

lot of the other industries around the place, in that we do not have large representative bodies
with a string of full-time employed people looking after their interests. Generally, fishermen
tend to look after their own affairs when they are not on the water, and dealing with multiple
agencies is obviously a major problem to them.
   They are not worried or fearful about dealing with environmental issues head-on. In fact,
they have been dealing with them in a very productive way for many years now. Really, the
difficulties are with the institutional arrangements and the burdens that the industry has to deal
with in its spare time.
   Based on the COAG agreement, the Commonwealth government proceeded to write a
consultation paper which went through a process of consultation and submission writing. That
was put out in January 1998 and reflected the COAG agreement. Even at that stage, ASIC
and fishermen generally were very strongly supportive of the basic premises in that paper that
most of the pieces of legislation in the environment field are currently out of date, mainly
written in the 1970s, and their operations tend to be piecemeal and ad hoc.
   Also, unlike most of the fisheries management legislation that the industry operates under,
the bulk of environment legislation at the Commonwealth level does not recognise or promote
ESD principles. Rather it tends to be more narrowly focused on environmental protection and
disallowing certain activities. So we thought that a move of Commonwealth environmental
legislation towards ESD, similar to the fisheries acts around the country, was a good thing.
   At the time of the consultation paper we queried some aspects in it which we thought were
probably in conflict with the original COAG agreement, but we put it down as a product of
poor or imprecise wording at the time, which would be clarified once the draft legislation was
revealed. We now have the draft bill. That has been around for six or eight months now and
is before the Senate.
   When our industry looked at that legislation, we realised that it had moved significantly
further away from the COAG principles and the consultation paper, and all those things that
we could sign up to. Therefore, the fishing industry finds it difficult at this stage to support
the bill on a range of general issues and, particularly, on some fishing industry specific grounds
which I will go to. We were surprised and disappointed to see that the good bits of the COAG
agreement and the consultation paper were watered down, and the problems that we
foreshadowed in the consultation paper were magnified.
   I could go to a range of general philosophical issues about the bill, but I think they have
been covered by the miners, the oil and gas people and the NFF here this morning. We are
a co-signatory to submission 335, which was a general industry submission and which goes
through the range of problems that have been discussed today. So, for the benefit of time, I
would like to move on to some specific fishing industry matters.
   Just before I do: there was a fair bit of discussion this morning about the command and
control concerns that industry has with the legislation. Just as an example, the fishing industry
considers that this piece of legislation is all about command. We cannot see the lines of control
in this piece of legislation. In the world of commercial fishing we have management advisory
committees, which are made up of industry, scientists, regulators—at both the Commonwealth
and state levels—and environmental groups, and they provide the lines of control. No
commands are given unless there is a consensus about how to move forward so that, when
there are difficult issues to be dealt with and difficult decisions to be made, the control of
those flows. This is the other way around. Philosophically, I find it astounding that the current
government has gone about things that way.

Thursday, 4 March 1999               SENATE—Legislation                                ECITA 181

  An example is that Commonwealth environment agencies approached the fishing industry
to put in marine protected areas. In many respects we do not have a huge number of problems
with some marine protected areas, but they generally get imposed on us and they are
detrimental to our interests at some stage. The environment agencies then turn around and say,
‘Oh, by the way, now that it is in can you help us police it for you?’ So the control lines do
not seem to be there. They are very good at commands but the control lines are missing.
   I will not go to all the specific seafood issues which I have covered in our submission 154.
We have about eight or 10 major concerns but I will just refer to a few here. The main concern
is that the trigger for Commonwealth involvement in the approvals processes is potentially
very broad, particularly for the commercial fishing industry at both the Commonwealth and
state levels.
  The consultation paper originally said that the trigger for the Commonwealth to become
involved in marine environment issues was only going to be related to Commonwealth marine
areas. The legislation actually moves well away from that and has the effect of having state
and territory fisheries decisions potentially included as a trigger for the act. This interpretation
has been confirmed to me by Environment Australia. This means that the limit to
Commonwealth marine areas is not binding. It is highly unlikely that the states and territories
would have signed up to the COAG agreement if they had known that that agreement was
going to be used to write this piece of legislation in such a way.
  The other major concern we have is that the bulk of the power in the legislation rests with
the environment minister. This will see the environment minister having decision making
powers over fisheries management matters as well as oil, gas, minerals, tourism and farming,
etc. The decision making powers will shift towards the environment minister and away from
the line minister—the fisheries minister at the federal or state level. Again I do not think that
was the original intent of the consultation paper or the COAG agreement.
   There is a way of getting out of all of this, which we have pointed out to the government
a number of times. That is, under section 146 of the legislation there is the capability to have
a strategic assessment of fisheries management plans. We have put it to the government a
number of times, unsuccessfully, that the way to use this part of the draft bill is to have a
strategic assessment of the fisheries management planning processes to determine whether or
not they meet the objectives of the act. If they do, then you anoint the process totally. Fisheries
management plans are then designed and constructed by the industry in association with
regulators, environment groups, states and territories, and scientists, and it would be left at
that. That would be a significant improvement on this piece of legislation and would remove
possibly half of our concerns with it.
  There are a series of other concerns about endangered species and the way it operates in
the legislation. We also join with other people about our criticisms of the legislation in terms
of the broad injunctions power.
  The only other point I would make is that often the fishing industry has problems
establishing that the statutory fishing rights which are granted to the industry are a form of
property. It is good to see that the act actually recognises these as a form of property to a
degree. We are comforted by that. However, there is absolutely no guarantee in the legislation
that a fishing right which comes up for regular renewal—unlike a long-term farming or
freehold lease—will be renewed if there is some form of reserve power that the minister
wields. Further negotiations with the minister over recent weeks and months outside of this

ECITA 182                           SENATE—Legislation                Thursday, 4 March 1999

process have bogged down from our point of view. So I can only reiterate that at this stage
we cannot support the legislation.
   CHAIR—I would like to ask both of you a question on the same issue and get you both
to respond to it. You both expressed concerns about the powers of the environment minister.
ASIC, as you have just said, believes that the centralisation of too much power in the federal
environment minister will result in decision making processes over fisheries management
matters to shift away from the minister for resources and energy, state fisheries ministers, and
state and Commonwealth fishery management agencies. Why shouldn’t the federal environment
minister be responsible and accountable for matters of national environmental significance that
impact on Commonwealth waters, keeping in mind that he or she must consider social and
economic as well as environmental matters when making decisions?
   For the NFF I have a similar sort of question because you have expressed concern about
the powers of the minister. Wouldn’t you agree that clause 136(1) does make it mandatory
for the minister to consider economic and social concerns when deciding whether to grant
approval for a project? Why isn’t the NFF happy with that arrangement?
   Dr Craik—Our view is that decisions need to include social and economic issues as well
as environmental issues in the final decision making process and that other relevant ministers
should have a more than consultative role in the final decision making process. It is the
fundamental basis for our view that not only the environment minister should have the decision
making role. We all know what the shades of consultation are possible under the use of that
term. I guess it is our view that there ought to be a more explicit role than just consultation
in that final decision making process with other ministers.
   CHAIR—So you want the legislation to explicitly require a process of consultation to be
gone through in a more detailed way in the legislation?
   Dr Craik—And views to be taken into account. Consultation does not necessarily mean that
views have to be taken into account.
   CHAIR—So that is one thing. What about the role of the environment minister as the
ultimate action minister? Would you change that? If the legislation were changed in the way
you have suggested now to take the views into consideration, would you be happy still with
the environment minister being the ultimate action minister?
   Dr Craik—I would want to reserve an answer on that because it will depend on what the
final make-up of the regulations and administrative guidelines are. It is a hypothetical question
until we know that—
   CHAIR—It is hypothetical, I agree.
   Dr Craik—I would want to reserve a decision on that. It would be something that we would
need to consult with our constituents on.
   CHAIR—So NFF really needs a lot of reassuring about giving the environment minister
the role of action minister as this stage.
   Dr Craik—That is right. There is a real concern about the role of Commonwealth vis-a-vis
the states in terms of land management, and that is reflected in those comments I have made.
   CHAIR—Does the Fisheries Council want to make any additional comment on that?
   Mr Nagle—Yes, thank you, Senator. We certainly welcome section 136, the one that you
referred to, because it actually does explicitly say that the minister needs to be cognisant of
the full range of variables under ESD. The Productivity Commission has put out a report in

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 183

the last few days on that to say that nearly every Commonwealth agency seems to think ESD
actually means environmental issues only when, in fact, there are social and economic issues
as well. It is good that that is in there. History tells us that in terms of the Commonwealth
environment agency’s attitude to the fishing industry, it invariably has much more emphasis
on environmental issues than economic or social issues.
   Our concern with the powers of the environment minister is not an absolute position. We
are proposing in our submissions a way around this, one of which I referred to. We do not
mind the minister and his agencies at the Commonwealth level looking at the fisheries
management planning processes and the way the decisions are brought about, determining
whether that decision making process is adequate to pick up all the variables under ESD—
environmental, social and economic—and anointing or making amendments to that process.
Once that is done, the nitty-gritty of each fishery’s management plan should be left to the
specialist regulators and the industry, the conservation groups and the scientists to sort out.
The final arbitrator being the minister’s office is not a situation that we can live with.
   CHAIR—Wouldn’t you agree though that the bill does establish a clear and practical,
streamlined and whole-of-government approach by requiring the federal minister to consult
with other Commonwealth ministers? It does establish clear responsibility and accountability
for decisions which, I guess, is necessary.
   Mr Nagle—I would like to be able to say, yes, but the answer is, no. Currently we have
a clear, streamlined process of fisheries. There is a memorandum of understanding between
Environment Australia and the Australian Fisheries Management Authority at the
Commonwealth level. That situation is clear, transparent and predictable and involves
consultation and advice from the environment minister and the fisheries minister. All that goes
into a big bucket and it all gets stirred up and out comes the decision. Under this piece of
legislation, the ultimate sanction on whether the fisheries management plan is agreed to rests
with the environment minister and he has not been involved in any shape or form all the way
through the process.
   CHAIR—One must presume that he would be advised though of what had happened. I take
your point. We started this session a little bit late so I think we might take it through an extra
15 minutes until 12 o’clock.
   Senator ALLISON—The bilateral agreements, you say, should be negotiated up front. Do
you accept that there might be a need to develop bilateral agreements over a longer period
of time? Is it, in fact, possible to have them all drafted and agreed to prior to this legislation?
   Dr Craik—Where there is a will there is usually a way. Our view is that if the legislation
goes through and the bilateral agreements are not negotiated, then there is a high degree of
uncertainty for our constituents as to what they might end up having to live with. I think there
is a real feeling that if we are really talking about transparent government and open processes
so people actually know what they are in for, then I think negotiating them up front is not an
unreasonable ask. There is no doubt that probably things will have to be modified down the
track in the light of experience. Proper processes can be put in place to do that sort of thing.
I do not think it is an unreasonable ask to have a bit more clarity as to what is actually going
to be involved.
   Senator ALLISON—Some of the exclusions from the bill, particularly land clearing, have
come up again and again with conservation groups to this committee. How does the NFF feel
about what is excluded from this bill and what is in it? Would you two argue that land clearing
should be a matter that the Commonwealth is involved in given the impact on greenhouse—

ECITA 184                           SENATE—Legislation                 Thursday, 4 March 1999

   Dr Craik—We believe that the states are the pre-eminent land management body. We
believe that the Commonwealth has a coordinating and strategic role. If negotiated agreements
are reached between state and Commonwealth with stakeholder consultation, then that is fine.
We certainly have a view that the Commonwealth should not override state management. We
would prefer to see land clearing kept out of this, yes.
   Senator ALLISON—Even though those bilateral agreements might mean agreement with
the states?
   Dr Craik—If they were voluntarily negotiated agreements, that is a different story, but in
terms of a legislative direction, we would have difficulty.
   Senator ALLISON—Another suggestion this morning was that this bill should not come
before there are more consistent environment impact assessment processes state by state, and
that some states have very little in the way of a process and others have quite well developed
processes. Is that your view as well? Would you like to see some sort of uniformity, if not
   Dr Craik—Could I take that one on notice? I do not think we have actually looked at that
particular issue. I would be happy to get back to you on it.
   Senator ALLISON—Could I put another one that you probably have not thought about
either, and that is the suggestion that there be an environment auditor, and that as part of our
auditor’s role there would be some sort of offshoot that would be in a better position to
monitor environment performance by the states and look at the bilateral agreements and
regulations and all of the other aspects of the bill and actually measure those.
   Dr Craik—There is no doubt a need to evaluate the effects of legislation and the
implementation of legislation. I think that is an essential part of the whole process. But I guess
in terms of agreeing to an environmental auditor, we would want to see what the roles and
responsibilities were and what the powers would be, and the process by which such a person
would be appointed. But in terms of evaluating the effects of the legislation and whether it
is being effective, certainly we would think that that is a sensible and desirable approach.
   Senator ALLISON—I think you have both said it is disappointing that ESD principles are
not more fundamental to the bill. What about intergenerational equity? Is that something else
you would like to see written in?
   Dr Craik—I regard that as one of the ESD principles, one of the three or four principles
that are embodied in the ESD.
   Senator ALLISON—So you would not have a problem with it being explicit?
   Dr Craik—If all the principles of ESD were explicit.
   Senator ALLISON—They were the main questions I had. Mr Nagle, let me ask you about
the comment you made that the good bits of the COAG agreement had been watered down
in the lead up to this legislation. Could you expand a little on which good bits you do not now
see in the bill?
   Mr Nagle—My understanding of the November 1997 COAG agreement was that the
Commonwealth’s responsibilities and interests vis-a-vis the environment were going to be
clearly defined and curtailed to general national environmental significance issues, and that
there would be a significant streamlining and greater transparency and certainty in relation
to environmental assessment and approval processes. The first part of the bill seeks to do that,
where they go through the various triggers for the Commonwealth to be involved in
environmental issues.

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 185

  On the issue of the marine environment, which is the one I am more concerned with and
most familiar with, the trigger for the Commonwealth is actually potentially very broad.
Originally it was going to be purely for Commonwealth marine areas, but if you look at
section 23(2) you find that, yes, it starts out well, that actions in a Commonwealth marine area
affecting the environment are subject to the act. Then it says that actions outside
Commonwealth marine areas, but affecting those areas, are also covered by the act. To me
that says that state and territory waters issues are suddenly subject to a piece of legislation
which was originally predicated on the Commonwealth remaining within Commonwealth
waters. That is what it said. But we have clearly here a power, and if you look at some of the
submissions that the state governments are making, one particular state government went
specifically to the issue of saying that this particular section, section 23(2), basically means
that the Commonwealth minister has the ability to wade into state fisheries matters, or state
land clearing matters, or ribbon development along the coast or outflows from river systems,
or whatever—run-off, urban design, you name it. It all goes ultimately into the marine
environment which, this bill would then argue, will possibly affect the Commonwealth marine
   It is a philosophical issue about whether or not you like that idea or not. We are not here
negotiating and I do not think we are debating that one. The COAG agreement said it was
going to stick to the Commonwealth marine areas but the legislation does not say that. That
is one example. The other area is to do with—
   Senator ALLISON—Before we go on to another example, could I talk about that? I would
have thought a marine environment was one where drawing lines on the maps was more
difficult even than in waterways and the like. An instance recently occurred where the
government was not able to take action on the Great Barrier Reef as a result of an aquaculture
process. I understand the pipeline where the effluent was coming into the waters of the Great
Barrier Reef area was shortened, which then removed any jurisdiction the federal government
had. Is that not a problem in marine areas—to not allow the Commonwealth to move outside
its Commonwealth waters?
   Mr Nagle—There are two questions: the question of whether or not that was a sensible thing
to have done and the question of whether or not it was consistent with the COAG agreement.
It is not consistent with the COAG agreement that the Commonwealth can get involved in state
waters matters. The other issue about whether or not it should is outside of my jurisdiction;
it is an issue between the Commonwealth and states.
  I thought that they had negotiated an agreement which would form the basis of some sort
of historic settlement of the endless disputes between the Commonwealth and states every time
a development process of one form or another comes before either one. We have a history in
this country of forum shopping. If opponents to a particular project do not get satisfaction in
one forum they go to another one, generally state to the Commonwealth, using what has been
in the past an ad hoc series of unclear powers. The agreement in November 1997, I understood,
was an attempt to historically resolve that dispute once and for all. Where the lines were drawn
was supposed to be very clear and that was going to set the basis for the legislation. I am not
going to make any comment on whether or not the lines were sensible, but that was the
agreement and the legislation does not reflect that.
  Senator ALLISON—Can you think of any examples where an activity in a state controlled
area might impinge on Commonwealth waters?

ECITA 186                            SENATE—Legislation                  Thursday, 4 March 1999

   Mr Nagle—In this industry, we have sought to overcome some of those things well ahead
of this piece of legislation. This legislation considers itself to be a radical interpretation of the
way to do things in the future. Within the commercial fishing industry, we have been able in
the past to have the Commonwealth and states sit around tables and negotiate what is called
offshore constitutional settlement agreements on each and every fishery because fisheries do
straddle the three nautical mile state limit. Fish do not recognise lines in water—consistent
with your view, Senator. What we have done in the past is negotiate who is best placed to
handle that fishery from a regulatory point of view, the Commonwealth or the state. Most
fisheries, apart from New South Wales—and that has stalled for political reasons—have now
had those lines on maps essentially dissolved and either the state or the Commonwealth looks
after it, whichever is the most practical. What I think this piece of legislation is going to do
is skip all of that and go deep within the state waters area where there was not even an issue
of the offshore constitutional settlement in the first place. I presume somebody can say that
a state fishery—say a beach seining fishery which has fishermen operating directly off the
beach out in the first couple of hundred metres of the water—somehow impacts on the
biodiversity of that beach which ultimately goes through the food chain and impacts on the
deeper water species. That is the sort of angle I expect people to come at under section 23(2)
which I think will just overturn the whole basis of having a clear delineation of responsibilities.
   Senator ALLISON—It is not so much the Commonwealth’s involvement; it is a third party.
   Mr Nagle—In the history of environmentalism in this country, you will see that the
Commonwealth is nudged off the fence on a regular basis by strongly motivated interest groups
and in the past the Commonwealth has been uncomfortable about that. Hence the COAG
agreement to stop that forum-shopping and political pressure to say, ‘Sorry, that is not our
responsibility.’ But if you then write grey wobbly words in your piece of legislation, you are
back to where you were 20 years ago with all the major disputes. We can name them if you
want—forestry, uranium, Murray-Darling Basin Commission. It goes on and on. There has
been a whole stack of them.
   Senator ALLISON—I just come to that point of forest agreements. If the RFA process and
RFA itself, as an agreement, were a model—and nobody is saying it is, but it is the best we
have in the absence of an actual example or even framework—for bilateral agreements, what
problems would you have with that kind of agreement?
   Mr Nagle—If the offshore constitutional settlement agreements remain as they are in
fisheries, we do not have an issue with bilateral agreements. They are not relevant.
   Senator ALLISON—Could they be the subject of a conservation agreement?
   Mr Nagle—I would have to go back and have a look at the parts of the bill. I am not really
clear on what the criteria of the conservation agreements were.
   Senator ALLISON—Thank you.
   Senator BOLKUS—I just go back to the question of consultation. There was no
consultation on the bill, I gather, with either of you.
   Dr Craik—There was very limited consultation on the bill, as I recollect. Sorry, it is a while
ago, and there has been a bit of water under the bridge.
   Senator BOLKUS—The critical parts are being determined now, I suppose—the regulations
and the bilateral draft agreements or the government’s guidelines or bilaterals. Is there any
consultation with either group at the moment on those issues?
   Dr Craik—Not to my knowledge with us.

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 187

   Mr Nagle—We have not been involved in any discussions on bilateral agreements. There
was consultation around at the time of the consultation paper. The minister took the view that
he had to rush the piece of legislation in the parliament before the last election, which curtailed
any discussion, because I think the bill was only shown to a few people privately, and I
certainly was not one of them. I think they had a few hours before it went into parliament.
We argued against that and said it needed to be floated around a bit more. I do not think it
even went through any backbench committees.
   Dr Craik—We would like to get something out to our constituents so they can actually—
   Senator BOLKUS—Are you doing that now?
   Dr Craik—I cannot answer that.
   Mr Nagle—All our organisations have this piece of legislation and are talking actively to
the state and territory governments.
   Dr Craik—Certainly, I am aware that our state member organisations have been talking
to their state governments about it because of their concerns about the lack of certainty.
   Senator BOLKUS—We are in a difficult situation like you. We have not seen the
guidelines, have not seen the regulations, and the government is still trying to rush it through
a year later. There does not seem to have been much meaningful consultation in that interim
period and we have to work out what to do with it.
   In that context, Mr Nagle, you mentioned that the current arrangements between the
Australian Fisheries Management Authority and Environment Australia seem to be more
workable than has been anticipated under this legislation. Is that your case and, in those
circumstances, would you mind a further deferral of the legislation while people sorted out
the details?
   Mr Nagle—As an individual, I would like to see a piece of legislation go through very soon
that reflects the original COAG agreement, so I am not in favour of stalling the legislation.
From a fisheries point of view, it is totally unacceptable the way it is. If they pull all that out
and get rid of it and remain silent on fishing, we would have to reassess our view.
   Like I said, the bilateral agreements are an issue which do not really impact on us if our
current offshore constitutional settlement arrangements remain in place. The government’s
oceans policy confirmed just before Christmas that they should remain in place. The
arrangements between AFMA and the Environment Australia in terms of consulting on
fisheries management plans are adequate and acceptable to all parties at the moment. If, at
the end of the day, something happens to the piece of legislation and that remains in place,
we would be more comfortable than with what is proposed in the bill.
   Senator BOLKUS—There are issues that are minor; there are issues that are major. There
are issues where there might be conflicting views as well. For instance, you say as part of your
submission that the compensation provisions for acquisition of property seem to be an
expansion on past acts. Mr Nagle, I would like you to explain how you see that. I think the
National Farmers Federation are concerned that the compensation provisions are not sufficient
in their circumstances. I wonder if both of you could address that compensation question?
   Mr Nagle—It is fairly easy and it goes back to the status of statutory fishing rights and
leases and licenses to fish. In the past, many governments and courts have not recognised that
as a similar property right to release or whatever. Any recognition that we have in any
legislation that there is a property right and, therefore, possible compensation if that property
right is disturbed, is an advance from our point of view. We are playing catch-up. We are a

ECITA 188                            SENATE—Legislation                  Thursday, 4 March 1999

long way behind the farmers and the miners who have clearly established property rights. I
do not think our comments conflict with what they are saying. I am just saying that, from our
point of view, any mention is better than none.
  Senator BOLKUS—Sure, I understand that. Maybe Dr Craik can explain to us how far you
are in advance in terms of your compensation rights and how this takes away from them?
  Dr Craik—We welcome the fact that there is some mention of compensation and for
acquisition of property as incentives for biodiversity conservation. Our concern is that land-
holder’s activities might be restricted. Their amenity might be affected either by management
plans or by regulations that are brought in. It is our view that compensation ought to be
payable if their current activities are restricted in anyway by the outcomes of this legislation.
  I guess too that, when the Commonwealth does commit an area to national environmental
significance, it has long been our view that land-holders ought to be adequately compensated.
Given the Willandra Lakes experience, in particular, it is our view that those things need to
be sorted out ahead of time, rather than 15 years down the track.
  Senator BOLKUS—There is one issue that you do raise which will set up the old red
warning lights to a lot of people. You say that the states must be able to devolve management
to the regions under bilateral agreements. I imagine lots of sections of industry will start
thinking, ‘That’s going to mean a lot of different regimes for us to work under.’ Environment
groups will start thinking, ‘If we leave it all to the region, then issues of national consideration
may be ignored.’ Is this an idea that you want to pursue much further?
  Dr Craik—I think there is always going to be that tension between the local knowledge
and the national environmental significance issues. I do not see why, if you have adequately
and properly negotiated bilateral arrangements with guidelines and processes that can be ticked
off on, you cannot leave a lot of management to the regions. There is always going to be
difficulty in making management decisions here in Canberra for remote places in Australia.
I do think that clearly a balance needs to be struck. I do think there has to be an identifiable
and clear role for regional management. After all in the land care area and natural heritage
area, we really are trying to develop regional plans for rehabilitation. At the end of the day,
management at that level also seems reasonably sensible.
  Senator BOLKUS—Is the list of issues of national significance too broad for you?
  Dr Craik—Our concern is that the list of issues of national significance can be added too.
We would like to see that, when there are proposals to add to that list of national significance,
they need to undergo parliamentary scrutiny before they are added.
  Senator BOLKUS—If they do it by regulation, that does allow for parliamentary scrutiny,
does not it?
  Dr Craik—Yes, but I think we would prefer to see it a bit more overt than just regulation
  Senator BOLKUS—Are there any of those issues listed as being of national significance
that you would quarantine from a bilateral arrangement?
  Dr Craik—Can I take that one on notice and get back to you on that?
  Senator BOLKUS—Sure. Mr Nagle, you are concerned about the triggers and you mention
23(2), but you also say that there are other triggers which would act in an uncertain way on
the seafood industry. To the extent that you have not canvassed those already, is there anything
you can add on that?

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 189

   Mr Nagle—They are set out in our submission, but they generally are issues to do with
world heritage and it is that same sort of formula that they talk about in the Commonwealth
marine areas. Actions outside of world heritage areas which impinge on world heritage areas
will be a trigger for the act. That is one of those issues on which we are not quite sure where
the line has gone. There used to be a line, but now it has gone.
   There is also the more general issue of national environmental significance, the catch-all
section 25, which is related to trade, external affairs and corporations powers. It basically
means, ‘Whatever we say the triggers are, we can always add to them whenever we want, as
long as they fit vaguely within those three heads of power.’
   But the one that affects us most is the list of threatened species. We go in our submission
to dealing with the issue of what are called the IUCN categories of endangerment, for want
of a better term. Those are generally based on terrestrial species, when what we are dealing
with here is commercially traded marine species. The application to marine species of IUCN
endangered categories which are terrestrially based is a problem. It is a problem recognised
not just by the fishing industry but by the IUCN itself, CITES and FAO, and they are currently
working towards a review of that formula. What we have got here, potentially, is setting in
concrete a way of dealing with traded commercial marine species under endangered species
criteria which may change in the next six or 12 months. So we are a little bit worried about
   Senator BOLKUS—Are those concerns about the bill identical to your concerns about the
current legislation? Do you have greater concerns in terms of endangered species so far as the
bill treats them as opposed to the current legislation in place?
   Mr Nagle—There was a process of review of the current legislation as well, but that seems
just to have been absorbed into the current legislation. We had a lot of problems with the
original endangered species legislation and they have not been resolved. That was mainly to
do with the ease with which nominations of species and key threatening processes under that
endangered species legislation seemed to meet the registration test. It is very akin to the
argument that we all had on native title in terms of the registration test: how high do you set
the hurdle? It was set very low in the first place and we ended up with a congested system;
the hurdle has now been raised. It is possibly an issue you do not agree with, Senator, but that
is what has happened.
   With the endangered species legislation, we are looking at the same thing. There is a very
low hurdle, so applications for endangered species or key threatening processes meet the
registration test very simply. There is also a fairly secretive nature in the nomination,
assessment and advisory process that follows registration. None of that appears to have
changed in the new bill. That was in the old endangered species protection legislation, which
was up for review anyway.
   So they are more general concerns with endangered species. The specific one I mentioned
there was something where we are likely to see action on overseas internationally on the IUCN
categories in the next six or 12 months.
   Senator BOLKUS—My last question is on something different. You also claim that there
is a major change for the worse, as you call it, in the injunction provisions in the bill. What
do you mean by that?
   Mr Nagle—I understand that the definition of who may take injunctive action has been
broadened, under subsection 475(1). In the separate pieces of environmental legislation
currently in force, which this bill seeks to absorb, the injunctions power is much more

ECITA 190                           SENATE—Legislation                Thursday, 4 March 1999

narrowly confined: I think a delegate of the minister can take injunctive action against
operators who are seen to be breaching the act, whilst this one is that basically anybody can
take injunctive action. The standing provisions are quite liberal.
   Senator BOLKUS—But not as liberal as in New South Wales, and the sky there has not
fallen in over the last 19 years.
   Mr Nagle—I cannot comment on that. All I can say is that they are much, much more
liberal than they were. From our point of view, going back to the creation of fisheries
management plans, our concern is that when we have negotiated compromise fisheries
management plans which reflect what the industry requires, what the scientists tell us, what
the conservation groups require and what government regulators require, they are then subject
to injunctive power by other parties. To us that is recipe for delay, uncertainty and possibly
   Senator BOLKUS—We can take that further, but it is almost 12 o’clock. I have got to say,
though, by way of a comment—and maybe you can answer this—that the team of Cochrane,
Wells, Wendy Craik and Nagle do not often let provisions of such fundamental concern get
through government without being addressed, as I experienced with respect to the Native Title
Act. How come you have got so many concerns now? What has gone wrong for you?
   Mr Nagle—I do not think I will answer that, on the grounds that I may incriminate myself!
   Dr Craik—We have been diverted by other activities.
   Mr Nagle—I think there was a different process involved. An election came up and there
was a decision by the minister, rightly or wrongly—but from his point of view—to put it into
parliament before the consultation process.
   Senator BOLKUS—There are similarities in that respect with native title, too.
   Mr Nagle—Yes.
   Senator BOLKUS—Anyway, we will see how it holds, over the next few months.
   Senator ALLISON—The World Wide Fund for Nature Australia, whose witness appears
next, have put forward a proposal that this legislation should include the trade and management
of invasive exotic species. Perhaps you are not in a position, Dr Craik, to comment particularly
on that, but perhaps we could supply you with a copy of the submission.
   Dr Craik—Yes, could you supply me with a copy of it.
   Senator ALLISON—It proposes establishing some schedules of prohibited taxa and
allowing a person to nominate a species to the schedules; an invasive species scientific
committee; and the requirement for Environment Australia to prepare a control plan.
   Dr Craik—Perhaps I could have a look at the submission, and we will certainly comment.
We are happy to comment on it.
   Senator ALLISON—I think that would be good. Mr Nagle, just on exotic species: you
would have heard the evidence given earlier this morning about shipping and the concern about
the minister having the ability to destroy a ship which was found to be bringing in exotic
species. This is an area that you would be concerned about, presumably.
   Mr Nagle—Sure.
   Senator ALLISON—Do you support the minister having that power?
   Mr Nagle—I did not even know that power was in there. But this is another classic example.
If you have a look at what has been done on ballast water and the prevention of organisms

Thursday, 4 March 1999              SENATE—Legislation                             ECITA 191

getting into our waterways from ballast water from overseas, you see that virtually every single
organisation in Australia that can bring pressure to bear on that is already doing so, through
various ballast water task forces and everything. I do not know if anything more can be done
than is currently being done. I have sat through a whole range of ballast water consultative
groups, and virtually every force in the country is unified to try and stamp out this problem.
Having the minister holding a big stick to go around and sink a few ships out at sea, as
another form of punishment, possibly will not advance the issue in any way.
  Senator ALLISON—Perhaps money would.
  Mr Nagle—I did not even know it was in there. I will go and look it up.
  CHAIR—Thank you very much, Mr Nagle and Dr Craik. We thank you for appearing today
and assure you that the views you have expressed in evidence will certainly be taken into
consideration by the committee in its report.

ECITA 192                           SENATE—Legislation                Thursday, 4 March 1999

[12.04 p.m.]
HIGGINS, Mr Ian Arthur, Chief Executive Officer, Greenpeace Australia Ltd
RATTENBURY, Mr Shane Stephen, Political Liaison Officer, Greenpeace Australia Ltd
PITTOCK, Mr James, Program Leader—Nature Conservation, World Wide Fund for
Nature Australia
   CHAIR—Welcome. The committee prefers all evidence to be given in public but you may
at any time request that your evidence, part of your evidence or answers to specific questions
be given in private and the committee will consider any such request. I point out, however,
that evidence taken in camera may subsequently be made public by order of the Senate.
   The committee has before it submissions Nos 275 and 408, dated 21 August and 28 August
1998 respectfully. Do you have any alterations or additions you would like to make to your
submissions at this time?
   Mr Higgins—No.
   Mr Pittock—No.
   CHAIR—I invite you to make an opening statement, at the conclusion of which the senators
will question you.
   Mr Higgins—Thank you for inviting Greenpeace Australia before the committee. I would
like to start by noting that Greenpeace was an active participant in the development of the joint
submission prepared by the Environmental Defenders Office on behalf of a very significant
group of Australia’s environment and conservation organisations. In appearing today,
Greenpeace fully supports the detailed EDO submission made on our behalf but we would also
like to focus on some issues of particular interest to Greenpeace that are in the supplementary
submission, which you have.
   Greenpeace is deeply concerned about the whole thrust of this bill. The push for the
Commonwealth to divest itself of responsibility for a large range of environmental matters
which go over to the states and territories to accept is fundamentally flawed. We live in an
era where environmental problems and the necessary solutions are increasingly global in
nature. For the Commonwealth to fail to recognise this trend is both short-sighted and out of
touch with the views of this Australian community, which looks to its government, of whatever
persuasion, to show leadership and to provide a framework for environmental protection in
the 21st century. They do not want to live in an economy; they want to live in a modern
society where the environment is protected.
   The policy direction underlying the bill—and it comes from the earlier evidence given to
you that it is based essentially on the COAG agreement—assumes that state and territory
governments have adequate environmental law regimes. But there are also numerous examples
which indicate that this is far from true: the management of the Murray River, poor coastal
zone management and land clearing are the most obvious and concerning in a list of
environmental failures.
   There can be little doubt that the Commonwealth has the constitutional power to take on
a broad range of matters of national environmental significance. It is a truism perhaps, but
environmental issues do not respect state boundaries, nor do they respect lines in the sea. On
this basis, the Commonwealth has both the power and the reason to fulfil a role of national
leadership. Unfortunately, the basis of this bill and the bill itself do very little towards this

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  On Monday we appeared before your committee examining the government’s proposed tax
package to outline our concerns about the environmental implications of that proposal,
particularly in terms of global warming. It is even more disturbing to be sitting here today
discussing a piece of legislation that purports to protect the environment yet fails to address
the issue of global warming and climate change at all. Greenpeace asserts that global warming
must be added as a matter of national environmental significance. This would be consistent
with our obligation under the United Nations Framework Convention on Climate Change,
which Australia has signed and ratified.
   Clearly, it would be impractical to have every single action which results in greenhouse
pollution being regulated by this legislation. However, we believe that it is possible to draft
a trigger that would ensure that the federal government could examine large projects and other
significant sources of greenhouse pollution before they commence. Given that it is the federal
government that is a signatory to the international agreements, surely the federal government
has an interest in being able to assess the amount of greenhouse pollution being produced in
  Another major omission in the bill is that the environmental and human threats from toxics
and hazardous chemicals are not directly listed as matters of national economic significance,
therefore these issues cannot be the subject of an analysis in an EIA, nor can they trigger an
EIA. This puts the Commonwealth in a hopelessly weak position in relation to the regulation
of toxics and other chemicals. Under the model proposed by the bill, these issues will be left
to state-by-state regulation, potentially resulting in lowest common denominator outcomes.
  A good example of this in Australia currently is the regulation of dioxins. These are the most
toxic chemicals ever produced by humans, and even at very low levels can affect the
reproductive and immune systems. A piece of dioxin the size of a small grain of rice is
equivalent to the yearly dose for one million people. Currently, some states measure some
emissions, but there is a great deal of inconsistency, ignorance and unwillingness to act across
the country. This is a clear example of where the Commonwealth should be applying national
standards, yet this bill in its current form offers no mechanism to do this.
  On the matter of ocean ecology, rather than go into detail this morning I would simply direct
the committee’s attention to the detailed comments in the EDO submission which, again, stress
the need for a national approach to the management of our marine resources. We should
perhaps note that, of all the world’s oceans, it is only the Pacific Ocean which is healthy
enough to produce a healthy fishery.
  I will finish by saying that there is no doubt that Australia’s environmental law regime does
need to be updated. But the Environment Protection and Biodiversity Conservation Bill as it
currently stands is a poor attempt to do this. The bill’s failure to address serious national
issues, such as land clearing, climate change and toxics, and its failure to grasp national
leadership, which the community is searching for, mean that without serious redrafting we
cannot support it. Thank you.
  CHAIR—Mr Pittock.
  Mr Pittock—Thank you. The World Wide Fund for Nature is the largest non-government
conservation organisation in the world. It is particularly concerned with the conservation of
biodiversity. We are also party to the joint submission prepared by the Environmental
Defenders Office on behalf of a number of groups and we have also made a supplementary
submission relating to invasive species. I would like to briefly outline our approach to the

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legislation, our concern about its omission of clauses dealing with a number of environmental
threats and also our concerns with the bilateral agreement process that is proposed in the bill.
   Firstly, may I say that WWF welcomes attempts to reform Commonwealth environmental
laws. We think that it is long overdue and, indeed, that the bill contains many welcome
measures that in themselves are quite an advance. In particular, we welcome the provision of
conservation of endangered species and endangered ecological communities as a matter of
national environmental significance that may trigger a Commonwealth environmental impact
   However, we are concerned that the bill as proposed does not directly deal with the two
major threats that are degrading Australia’s terrestrial environment: the impact of invasive
species, and vegetation clearing. In relation to invasive species, Australia has in recent years
developed some strong quarantine laws to screen out potentially dangerous plants and animals
from being introduced into the country. Of course, the states have extensive laws and
procedures to deal with exotic species which have got away, which are almost beyond control
and have been declared noxious. However, there is no effective system for identifying those
invasive species in the country which are still able to be controlled and eradicated. This is a
major problem. Already ten per cent of Australia’s plants are exotic, and weeds are costing
the country something like $3.3 billion a year in terms of lost agricultural production.
   What we are asking is for this bill to include an additional section, similar to the current
Endangered Species Protection Act provisions, which would enable any member of the public
to nominate to an expert committee a species which could be regarded as environmentally
dangerous, for that nomination to be reviewed by an expert committee and for a
recommendation to be made to the federal environment minister for that species to be listed
if it is considered dangerous.
   The problem is that at the moment there are too many good reasons why state and local
authorities do not list invasive species as noxious until it is too late. There are too many
inconsistencies between local governments and states for control of these species to be
effective early enough. For example, listing a weed as noxious under state legislation imposes
quite considerable burdens on individual land-holders to control and eradicate those species
at their cost. There are few local or state politicians willing to impose that burden on their
constituents unless the case is compelling. Often the case only becomes compelling when it
is too late to control that species.
   Similarly, there is a need to provide certainty to the nursery industry and other industries.
At the moment a great many local government areas in Australia are implementing prohibited
lists of plants for their municipalities. Of course, that creates a great deal of problem for a
nationwide industry like the nursery industry in working out what it is legally able to sell in
any one area.
   What we are suggesting is that the Commonwealth come up with a national master list of
species which are environmentally dangerous and which should not be sold, and that ownership
of those should be prohibited. They should be classed in three categories: one category is a
watch list of dangerous plants outside Australia. It would be prohibited to bring those species
into the country. The second category would be a list of those dangerous species in the country
which may still be controlled and eradicated. We are suggesting that as the area where the
Commonwealth can demonstrate leadership. In the final category are those invasive species
which are in the country and out of control. We believe they should remain primarily the
responsibility of states and local government.

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  I would like to move on to vegetation clearing. Australia clears something like 425,000
hectares of native vegetation per year, which makes us among the 10 top countries in terms
of destroying native vegetation. We are concerned that this vegetation clearing is the leading
reason we are losing biodiversity. It is causing land degradation. It is one of the leading causes
of emission of greenhouse gases and we would argue that it is contributing little to the growth
of agriculture in Australia in this day and age.
  We are concerned that vegetation clearing is not listed as a matter of national environmental
significance that would trigger environmental impact assessment, and believe that it should
be listed. We are also concerned that measures should be added to support and reward those
land-holders who have conserved native vegetation on their land; these are not currently in
the bill. In particular, I would like to acknowledge the proposal for conservation agreements.
We think that that is a useful step forward for the Commonwealth to reach agreement with
private land-holders to conserve vegetation. However, we are concerned that it is linked with
an ability for areas covered by conservation agreements to be excluded from further
environmental impact assessment under the bill.
  We also believe that that very positive move could be extended in a number of ways. In
particular, we are concerned to see that non-government organisations that work in this area
be accredited to negotiate and deliver conservation agreements on behalf of the
Commonwealth. There is already a similar precedent in terms of the Trust for Nature
organisation in Victoria. We are also concerned that at the moment moves by organisations
such as the Trust for Nature in Victoria cannot be replicated in other states in terms of
purchasing land with native vegetation of significance, putting a covenant on the title to that
land, and then reselling it to a sympathetic land manager. There are considerable costs in terms
of state charges and taxes which mitigate against such activities in states outside Victoria. We
believe that the Commonwealth legislation should provide clauses to enable such organisations
to be accredited to buy and sell land for conservation under covenant and that the legislation
should exclude those organisations from state land sales stamp duty type taxes.
  Finally, I would like to outline our concerns in relation to bilateral agreements. WWF notes
that in a number of instances the Commonwealth in an ad hoc way already negotiates bilateral
agreements covering some classes of land of national environmental significance such as
management plans for world heritage sites. We would welcome any attempt to codify that sort
of arrangement in a transparent and accountable manner. However, we are concerned that the
bill, as drafted, provides for agreement to be reached in secret basically between the
Commonwealth and the state or territory, and that the only transparency is when the final
agreement is published.
  We believe that is untenable. We would like to see the provisions in the legislation amended
to ensure that draft bilateral agreements are published for public comment; that that public
comment has to be taken into account by the minister; that the proposed final bilateral
agreement is disallowable by either house of parliament; that those agreements include
implementation plans with performance criteria; that they are reviewed on a triennial basis and
that, if states and territories fail to live up to those bilateral agreements, they can be cancelled.
  In summary, I would say that the World Wide Fund for Nature welcomes attempts to
improve Australia’s environmental laws. We recognise a number of positive elements in the
draft bill. However, we believe that it does not as yet address the two key threats to Australia’s
terrestrial biodiversity and we cannot support the bill while the bilateral agreements process
remains such a secretive process and open to abuse.

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  Senator BOLKUS—Mr Pittock, you call your submission a supplementary submission. Does
that mean that you are a full signatory to the EDO of New South Wales’s submission?
  Mr Pittock—Indeed, it does. We are a full signatory to the other submission. We made a
supplementary submission because we ran out of time to negotiate this with our colleagues.
However, I believe that they are in general support of the thrust of the invasive species
measures we propose.
  Senator BOLKUS—You mentioned concern with the capacity to off-load responsibility
to the states. Another area which I thought might be of concern to you is the capacity of a
minister to basically enter into a conservation agreement with private land-holders. I imagine
that issue would raise some problems from your perspective. Would it?
  Mr Pittock—We are very supportive in principle of the Commonwealth, or indeed the states
and territories, reaching agreements with private land-holders where the private land-holders
agree to conserve native vegetation or some other environmental feature in perpetuity. What
we are concerned about with that clause is that, as drafted in the bill, it would then exempt
that land-holder from being required to undertake environmental impact assessment for
development proposals that they might suggest on that land subsequently.
  Senator BOLKUS—It does seem to be a pretty broad clause. Mr Higgins, you would have
earlier heard the fishing industry say that they were being too onerously impacted upon by
this legislation. Do you share that view?
  Mr Higgins—We are in a world where the need for the resource requires conservation. I
am a little surprised with support for a situation where you can have the first three miles of
the sea under state negotiation and the rest under federal negotiation. Our view is that, while
we today in the Southern Ocean are in contact with pirate boat fishing for an endangered
species, the management of the world fisheries is an international, regional and national issue
and not one for states.
   Senator BOLKUS—At some stage in your submission, I think you do state that you think
the fishing industry will not be subjected to the same level of regulation as other sectors. That
is the main point of that?
  Mr Higgins—The strategic agreements they seek, and the evidence given earlier, are
essentially a method of opting out of these sorts of controls and regulations. It is dangerous
for the industry to be treating its resource in this way. I think that there is a cooperative
exercise where science and industry can recognise the dramatic need for conservation for
everyone’s benefit, but the bill does not have that level of national responsibility.
  Senator BOLKUS—Is your concern about specially accredited EIA processes essentially
the same as Mr Pittock’s, or does it go further than that?
   Mr Rattenbury—It is essentially the same concern that Mr Pittock outlined. It is about the
issues of insufficient public consultation, the lack of a review process in the strategic
environmental assessments. They potentially stand to cover a period of some years and, as I
understand it, the bill does not have provision for a review process any time in that period.
It is those sorts of issues, the process based issues particularly, that concern us in the SEA
  Senator BOLKUS—One issue that you have raised—and this is to Greenpeace—is the
capacity for the planned regime to provide for worst practice competition amongst the states.
Would you both like to comment on how you see that happening and keep in mind that, for

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instance, whatever a state can or cannot do, we are told, would be governed by the planned
bilateral agreements?
  Mr Higgins—It is not so much a matter of conflict between states. It is simply a matter of
the coverage—that there is national strength and that there is national certainty. Industry
competition and incentives offered to industry are a part of life. If you take the electricity
industry, you find that there is now competition in Australia, as marginal as it may be, and
the incentive to burn enormous amounts of brown coal in Victoria at Yallourn will have the
effect of limiting any sort of national ability for climate change, for example. And I guess
climate change is a good example.
  At the same time you have the Western Australian Director of Conservation and Land
Management saying that Western Australia alone will get to Australia’s full quota under the
Kyoto agreement—the eight per cent limit. In Queensland now, at Gladstone, we have a major
new coal and oil shale industry which is not only a dirty form of gaining fuel that we do not
need but which has the capacity to produce as much oil as Bass Strait and to create one to
1½ per cent of Australia’s total greenhouse emissions. First of all, it is not covered at all by
the current legislation, but it is a good example of what happens when there is a national and
international responsibility, and of how state incentives affect the operation of business and
the incentives offered to them to create those issues.
  Senator BOLKUS—You do have concerns with the state and territory EIS regimes, and
you expressed those. Is that why you say that this legislation is fundamentally flawed and is
an abdication of national responsibility?
  Mr Higgins—Yes.
  Senator BOLKUS—Can you detail those concerns in respect of the state regimes that lead
you to this conclusion?
  Mr Higgins—I think industry probably would see also the need for certainty. We would
see it differently, although agreeing with the need for certainty. The whole basis of the bill
and of the COAG agreement is to limit the scope of national responsibility which is going back
25 years in time. We are currently operating under legislation which colleagues and nearly
every other environmental lawyer in Australia would agree needs updating. But it needs
modernising and updating to reflect the state of the world.
  Senator ALLISON—Mr Higgins, on that climate change question, you say it would be
possible to design a greenhouse trigger with a threshold to exclude application of the bill for
small and inconsequential actions. What other actions are you referring to, and how would
you propose that that trigger be worded?
  Mr Higgins—The wording could be similar to the triggers, I guess, that are outlined, but
the key fact is that greenhouse needs to be included. Secondly, it is not impossible, and we
are currently trying to work out a practicable trigger limit to which we are getting close. I want
to make that comment.
  Mr Rattenbury—It is a difficult issue. We have spoken with Senator Hill about this on a
number of occasions. We cannot get into a situation where we are having to undertake a
process every time we want to drive down the shops. That is obviously the thinking behind
our suggestion there. We are currently undertaking quite a bit of research and consulting with
some of our more scientifically literate friends about the potential actual tonnage targets that
we might be able to use. The rationale we have in proposing this amendment is that large-scale

ECITA 198                           SENATE—Legislation                Thursday, 4 March 1999

projects with significant greenhouse impact should be the projects that we are looking to bring
into the scope of the new legislation.
   Senator ALLISON—I must say it is encouraging to hear that the minister has invited you
to do this.
   Mr Rattenbury—I do not know that the minister has invited us, but we are certainly going
to share our views with him.
   Senator ALLISON—You put up the challenge and he said, ‘You do it.’ Mr Pittock, I was
interested in your comments earlier about the Trust for Nature in Victoria and the fact that
you say it cannot be replicated in other states because of state taxes and charges. Can you just
expand a bit on that? Why was it possible in Victoria and not elsewhere?
   Mr Pittock—It is an extraordinary situation that we cannot empower private land-holders
who want to conserve the bush better in other states. The Trust for Nature was established
under Victorian legislation and it has been given two unusual properties. One is that it can
sign covenants on title that are binding with the land-holder in perpetuity. Unfortunately, that
is not the case in Tasmania, Western Australia and the Northern Territory. In other states—
Queensland, New South Wales and South Australia—such titles can only be negotiated through
a state government agency where many land-holders are reluctant to deal with state
   Senator ALLISON—Is it the constitution of the states that prohibits it?
   Mr Pittock—No, unfortunately, it has been a lack of political will.
   Senator ALLISON—So it is not impossible. It could be done, but it has not been done and
is unlikely to be done; is that what you are saying?
   Mr Pittock—That is true. However, I also would argue that there is a need for the
Commonwealth to put in a plan B, a fail-safe, a capacity for the Commonwealth to authorise
appropriate non-government organisations to deliver such services where states and territories
fail to implement those measures. I think it is in particular in the interests of the
Commonwealth government. The Commonwealth government has a very ambitious policy goal
of no net loss of native vegetation by the year 2001. We are currently clearing something like
425,000 hectares of bush a year. To achieve that, we are going to need the help of all the
private-land holders we can get. I believe that the Commonwealth needs to legislate to
facilitate community groups to work with individuals to do that.
   The second area was in the area of state taxes and charges. The Trust for Nature in Victoria
has been made exempt from state taxes and charges for land transactions where the land has
been covenanted in perpetuity for conservation. What that means is that they can buy and sell
land. They can buy land which is not protected, covenant it, and sell it to a sympathetic land-
holder so that the Trust for Nature maintains its capital base and can continue to conserve
important areas. We would like to see similar mechanisms available in all other states and
   Senator ALLISON—By the way, how is that affected by the new tax system?
   Mr Pittock—I must confess I have not considered the question, but it is a very pertinent
   Senator ALLISON—I wonder if you share the same concerns that NELA and others have
about standing? I guess it is not a problem for your two organisations, but can you see
circumstances where standing will be denied and will waste a lot of time in the courts arguing

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about it instead of getting on with the job? What sorts of groups can you imagine would be
denied standing and, in your view, should have it?
   Mr Rattenbury—I think the most obvious groups that would fail to meet the standing
provisions are those that are much more localised. As you rightly point out, organisations like
Greenpeace or the Australian Conservation Foundation have, I guess through precedent over
the years, managed to establish some ability to get standing on occasion. But that is a result
of their long recognised role and their history.
   I think it was Senator Bolkus who pointed to the fact that New South Wales for many years
has had an ‘any person’ provision in its legislation, and the sky certainly has not fallen in
there. We have not seen the masses and masses of litigation that those that oppose open
standing suggest may occur, because there are a large number of other impediments to groups
taking legal action including, and perhaps most obviously, the cost of litigation. So I think
having an open standing provision in the legislation will not be a great source of problem. We
would actively encourage it. It is a useful way of encouraging community participation and
it surely must the goal of a modern environmental law regime to offer the community that
   Mr Higgins—To illustrate how far we have to go: even the new legislation in Indonesia—
not tested, as far as I know—gives community groups the ability to sue, as well as standing,
and it gives conservation groups standing. The whole issue of transparency and public
involvement is restricted in this draft legislation.
   Senator ALLISON—Mr Higgins, you spoke earlier about toxins, particularly dioxin, as
posing one of the most serious pollution problems facing us. I imagine the minister, if he were
here, would argue that the national environment protection measures legislation and process
is sufficient to deal with such questions. Is there any reason why that is not the case and why
it should be in this bill?
   Mr Higgins—Australia is moving and has entered negotiations to develop a convention to
eliminate persistent organic pollutants, of which dioxin is a key one. Dioxin and furans are
two major stumbling blocks in Australia. They are a by-product of industry, rather than being
a pesticide or industrial chemical, and they really do require specific control strategies to
address all sources, including stockpiles and reservoirs, and their release to air.
   Mr Rattenbury—If Senator Hill were here, I would have to suggest to him that the NEPM
simply was failing on this issue. You may recall Greenpeace’s dioxin report which we released
in December last year, for which we actually went around Australia and not only did some
testing ourselves but also sought data from as many government agencies as possible. The only
way we could find out about the emission of dioxins in Australia was through some rather
lengthy and difficult freedom of information requests.
   I think it is quite clear on that basis that the system is failing in Australia, firstly, because
we could not get the information in the first place by simply asking—we really had to work
hard to get it—and, secondly, because we found across the states that the information simply
did not exist on many occasions. As Mr Higgins referred to in his opening address, some states
measure dioxin emissions to air, some measure it to land and water, some measure it to neither,
and certainly none of them measure it in all of them. Since it is one of the most serious
chemical pollution issues that we face, I think it would be fair to say that it is simply not being
adequately addressed at the moment.
   We believe that is where a role for Commonwealth leadership comes in. It is not an
acceptable situation where states have inconsistent regimes. It is not good enough for

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somebody in Tasmania to be subject to more dioxin pollution than someone in New South
Wales. It is simply unacceptable.
  Senator ALLISON—A number of submitters have argued that this bill does not foster either
a proactive approach or best practice. Even industry argues that, and locates this bill back in
the 1970s at least. A number of people today have suggested that the Canadian model is one
that we should have looked at more closely. Since your organisations are both international
ones, are you able to give the committee any advice on that model? From a conservation point
of view, have you looked at it and would you regard it as world’s best practice? And is it
something that the committee should look at with some urgency?
  Mr Higgins—On behalf of Greenpeace I would be delighted to provide any comments that
we can to you. I cannot comment directly. I have heard some vague comments from our office
in Canada but not enough to comment on it with any authority.
  Mr Pittock—Likewise, from WWF’s point of view, I am not familiar with the Canadian
legislation. In terms of some of the biodiversity provisions that are proposed, I would have
to say that the measures dealing with threatened species are not bad on a world scale but there
is still room for improvement. We are certainly a long way behind on invasive species
management. There is some very good New Zealand legislation dealing with invasive species
that has the support of a number of the key industry groups involved, such as their nursery
industry association, and is worth considering. In terms of regional planning—
  Senator ALLISON—Does that New Zealand legislation align with the suggestions you have
made to the committee? Is that what they are basically about?
  Mr Pittock—Indeed it is. We were certainly very interested in the New Zealand legislation,
and part of our motivation in developing this was realising what a better job was occurring
across the Tasman. We are very pleased with the invasives issue, that the coalition government,
in its election policy of October last year, committed itself to developing an invasive species
alert list and to start to deal proactively with some of these newly invasive species. We saw
this proposal as a way of helping the government implement its policy.
  Senator ALLISON—How long has the New Zealand legislation been in place?
  Mr Pittock—It has been in place for a number of years now. I cannot give you the precise
date; however, I can provide that for you if you would like more information. Some other
aspects of legislation are also quite noteworthy. The New Zealand Natural Resource
Management Act has a number of very positive measures directed at bioregional planning and
regional planning. The bill here mentions it in passing and it introduces the concept, and there
are some very broad enabling clauses, but I think the New Zealand legislation again is much
  Senator ALLISON—The New Zealanders have the advantage of levels of government
which know what they are doing. This is, as I understand it, administered by the second level
of regional councils, which is purely regulatory and does not deliver services.
  Just coming back to the invasive species question, Mr Pittock, I acknowledge that it is
something that this government has not tackled and neither have the states until, as you point
out, it is too late and then we cannot do anything. What sort of costs would be associated with
the proposal that you are putting forward, and who would bear them? Should there be a bucket
of money going with this bill if we were to take this kind of action on invasive species?
  Mr Pittock—I think the first thing to note is that already there is considerable expenditure
in trying to clean up the mess after these sorts of species have got away.

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  Senator ALLISON—By whom? Who largely bears that cost at present?
  Mr Pittock—At this stage it is substantially the states and local government authorities.
However, there is some Commonwealth funding allocated towards implementation of the
Commonwealth government’s national weeds policy.
  CHAIR—$24 million, in fact.
  Mr Pittock—Indeed. However, our concern with that is that a lot of it will hinge on the
weeds identified as weeds of national significance, which are currently being identified. Our
concern there is again that the larger proportion of those weeds being identified are weeds
which have already escaped.
  There would be some cost associated with implementing our proposal. Under similar
legislation for the endangered species program the Commonwealth has allocated $6 million
to $7 million per year to implement a similar process. In fact, since we made this submission
we have had some discussions with Commonwealth authorities who have suggested that it
would be an even more efficient way of reducing the costs of administering this proposal if,
when a short list of invasive species that are dangerous and that can be eradicated has been
identified, instead of preparing a plan for each species we simply had one master plan which
was updated periodically, to enable more resources to go into the actual control as opposed
to the drafting of plans.
  Senator ALLISON—Would you suggest that in some way—I cannot think what the
mechanism would be—the Natural Heritage Trust Fund, for instance, and Landcare funding
and the like should be tied to this need to control invasive species?
  Mr Pittock—Indeed, there are already funds allocated through the Natural Heritage Trust
for invasive species. WWF’s view is that they would be better spent if they were targeted at
a systematic program like the proposal that we have made, instead of on the more ad hoc basis
that they are currently being prepared on. At the moment, some funding is going towards threat
abatement for invasive species identified through the Endangered Species Protection Act, such
as cats and foxes. Other funding is going through AFFA towards national weeds. But those
species are being identified in a very ad hoc manner.
  Our concern is that there are too many people with too many interests at the state level to
stand back and identify which species are most dangerous and which ones could be most
effectively knocked off, to target the resources where they are most needed. For example, it
is state instrumentalities in many cases that have been introducing these invasive species.
Botanic gardens are among the worst culprits in terms of bringing new species into the country
and letting them escape.
  Senator ALLISON—We will ask them later; I think they are here.
  Mr Pittock—In our submission we comment that 65 per cent of the new weeds established
in the last 25 years have been deliberately introduced for ornamental purposes, for sales in
the nursery industry. So there is a lot of interest in not seeing a systematic system. That is why
we need a national approach.
  Senator ALLISON—Your submission suggests that the offshore oil and gas industry is not
included in this bill but should be. Mr Higgins, can you just expand on why you think that
omission is problematic?
  Mr Higgins—There has been no federal EIS on the Gladstone oil shale facility. If you take
the North West Shelf, it is exploration boom time. There was, as I understand it, no full EIS
on the many areas of the great boom that is going on in the North West Shelf for the Timor

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Sea. They are just not covered and will not be covered. They are probably better potentially
covered now, under the impact of the proposals act, than they will be if this bill is not
   Senator ALLISON—So is it just a question of inserting offshore oil and gas into a list of
activities? Is it as simple as that, or what needs to be done?
   Mr Rattenbury—The most effective way of addressing it would be through the introduction
of a greenhouse trigger. This is the sort of project I was referring to earlier, where there is
significant greenhouse potential. With regard to the offshore oil and gas industry, provided
we maintain a good regime for endangered species and other assessment matters in the
legislation, the main problem at the moment is in fact the greenhouse issue, which we believe
will not be addressed under the proposed legislation. In fact, it cannot be addressed at the
   We were doing some work last year looking at some of the developments going on up there.
We sought reasons from the minister as to why issues had not been considered under the
impact assessments that had already been considered, and we were told that there was simply
no need. The minister was not required to examine greenhouse implications and so did not.
If we do not have a greenhouse trigger in this new legislation, that situation will continue. And
the Commonwealth will put itself into the untenable position of having no control over the
potential developments in Australia that will have major greenhouse implications.
   CHAIR—I have a question about the breadth of these matters of national environmental
significance. That is an issue that Greenpeace and the Environmental Defenders Office have
raised. In fact, the Commonwealth has outside this legislation and its proposed triggers, as I
am sure you know, a very wide range of items of legislation dealing with issues like hazardous
waste, ozone protection, environment protection, sea dumping, the Great Barrier Reef Marine
Park, the National Environment Protection Council, quarantine, agricultural and veterinary
chemicals, and industrial chemicals. Under the National Heritage Trust there is the Landcare
program, which has been mentioned, bush care, the Murray-Darling program which was
mentioned today, the national river care program, the national reserve system, the national land
and water audit, the national weed strategy, the $180 million package of measures to reduce
greenhouse emissions and the creation of the Australian Greenhouse Office. So, in fact, the
Commonwealth has very broad involvement outside these triggers.
   Why don’t you feel that that is sufficient concern for the Commonwealth to have in these
matters? This law does not seek to be all-inclusive and global. It sets out specific triggers to
get the Commonwealth involved in environmental issues early in the piece. There are a lot
of other pieces of legislation which do involve the Commonwealth. Why don’t you see that
as adequate?
   Mr Higgins—If you take the Greenhouse Office, that is a good start but, although it is very
good on carrot, it has no stick. The issues are so serious and so important, and it is so
important for federal government to take leadership on them, that it is not a time to restrict
the matters which can trigger Commonwealth assessment and approval. You have listed a
number of measures and a number of groups, but we are not having the results that we need.
   CHAIR—I suppose that is a matter of opinion and debate. You said it was all carrot but
no stick. The mining industry, in particular, on three occasions now, have said they object to
the coercion and control regime which this bill embodies. They expressed the view again today
that modern best practice relies on cooperation and a sense of best practice about managing
the environment. What would your comment be about their comments, in terms of the need

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not to have a control regime with some fairly strong punitive measures embodied in this
legislation to deal with a failure to control?
   Mr Higgins—I guess my answer would be that it is absolutely understandable.
   CHAIR—Do you understand their point of view?
   Mr Higgins—I understand where they are coming from. I do not agree with their point of
view. I think that there is increasing cooperation in Australia. People are not only in the
boardroom; they go home to their children at night and actually worry about the potential
effects of climate change. So I do not think that there is a complete distinction. But they, and
interest groups which are far more powerful than the environmental interest groups, do need
and do look for clear regulation.
   Mr Pittock—I wonder if I could respond to both questions on the issues that I raised.
Starting with invasives: yes, there is quarantine legislation but it basically stops at the customs
barrier. While there is limited ability for the Commonwealth at the moment to do what they
describe as incursion management, what we are talking about is the level between a species
getting past the customs barrier and escaping at the state level. What we are interested in doing
is working with the government to implement its policy at the last election of setting up an
alert list and controlling dangerous species which are newly introduced into the country but
have not yet got beyond control. At the moment, there is no mechanism nationally to deal
effectively with that area.
   CHAIR—Just to interrupt you at that point, isn’t that what the national weeds program
does? It is said to be focused on the need to control problem weeds of national significance,
to develop new screening arrangements which reduce the risk of weeds being introduced in
imported plant material and to promote the coordination of effort to deal with this problem.
   Mr Pittock—Yes.
   CHAIR—So, by implication, are you saying that program is failing?
   Mr Pittock—Because, yes, they have introduced new screening procedures for species
coming into the country and that is wonderful, and we congratulate the government on doing
that; unfortunately, they are not looking at the species which have already been introduced
and have not been identified as weeds for a variety of reasons. For example, there is no
government program through the national weeds program to look at the stocks held by botanic
gardens, for example, to identify which plant species in those gardens are dangerous and can
be removed before they get away.
   The second thing I would point out is that it is a case where the market in New Zealand
failed. Initially the New Zealand Nursery Industry Association said, ‘It is outrageous that you
are proposing to regulate us; let us do this through a cooperative and voluntary approach.’ In
the end it was the nursery industry which came back and said, ‘Look, a number of our business
members want to do the right thing but they are being out-sold by those who don’t, and what
we want is some certainty—a national approach, a national list of things which cannot be sold.’
And I think we will find the same in Australia, too, as each local government area comes up
with a different list of plants which cannot be sold. It will be the nursery industry that will
need that national certainty provided through regulation.
   Similarly with vegetation clearing. There is no doubt, as you would be aware, that a number
of state governments instituted excellent programs of vegetation conservation, and South
Australia is one of them. However, there are a number of states who have not consistently
conserved native vegetation, nor appear likely to do so. Indeed, in northern Australia it is often

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state governments themselves that are sponsoring some of the big, new, agricultural
development programs.
   What we are saying is simply not that there needs to be a ban on clearing; only that when
a certain threshold is passed with the proposal to clear native vegetation—because of the
national impact on biodiversity, on greenhouse gas emissions, on land degradation—that should
be run through a properly constituted environmental impact assessment process. We think that
is entirely reasonable, and indeed we think it is the only way the coalition will reach its policy
goal of no net loss of native vegetation by the year 2001.
   Mr Rattenbury—I might just briefly add that I think Mr Pittock makes an extremely good
point in pointing out that it is important for the good industries, those that actually do want
to produce good environmental outcomes, and we have no doubt there are plenty of them out
there. But if they look around and see that other companies are getting away with it and not
being sort of hit with the big stick, if you like to put it that way, it is a terrible disincentive.
In fact it sort of stymies those industries that are seeking good outcomes, and that seems like
a terrible shame.
   CHAIR—Alright. So across the board you do not really have confidence that a non-
command and control regime would work?
   Mr Higgins—Senator, I think there are levels of discussion about these things. I think we
should be taking the top level, and that is that the world is facing a time when it needs to
move towards a low carbon economy, and that is serious stuff, and the insurance industry
agrees with that. We are looking at a time when that must be explained. It has not yet been
explained to the citizenry, and it is an issue which requires strong Commonwealth—in our
case—understanding and leadership.
   I do not think we are any more in a world of point by point, industry by industry, discussion.
We are living in a world which, unless it takes action now, is going to rue those people and
governments that did not take that leadership. In the UK, for example, there is now the UK
royal commission on environmental pollution which is looking to the way in which the UK
can phase out of carbon by the middle of next century. So this is the scale of the issues that
we should be looking at. Yes, it needs encouragement; yes, there are many good companies
and companies that we talk to and deal with who are doing it; but yes, it also needs leadership.
   Mr Pittock—If I might follow on, the World Wide Fund for Nature believes that what we
need in all these environmental questions is a nice, big tool box which contains a range of
measures which can be applied as appropriate in any instance. That will involve a regulatory
safety net, that will involve market based mechanisms, and it should involve voluntary
   We are a leading organisation in terms of developing market based mechanisms to reward,
for example in the fishing industry, those sectors of the fishing industry that are fishing
sustainably. We are working to ensure that they are recognised for their achievements and that
they gain a market premium for doing that.
   Equally, as I mentioned earlier, we are very keen to reward the great number of Australian
farmers and land-holders who over the years have worked very hard to conserve remnant
vegetation on their property. We believe that those people should be encouraged, including
through this legislation, with incentives to covenant and to gain the recognition that they
deserve for their achievements. However, we also believe that at the end of the day there needs
to be a regulatory safety net to catch those people who do not want to adopt best practice.

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  CHAIR—I had some other questions to ask you but I see we have run out of time. We will
have to close at this point because we are to resume at 1.35. I would like to thank you as
witnesses for appearing before us today. Your evidence of course will be considered by the
committee in its report. Some of the points you have made have been very interesting ones.
Thank you very much.
                   Proceedings suspended from 1.01 p.m. to 1.46 p.m.

ECITA 206                           SENATE—Legislation                Thursday, 4 March 1999

[1.46 p.m.]
DELANEY, Mr Ian, Commissioner, Aboriginal and Torres Strait Islander Commission
ELDRIDGE, Mr William John, General Manager, Social and Cultural Division,
Aboriginal and Torres Strait Islander Commission
   CHAIR—Welcome. The committee prefers all evidence to be given in public, but you may
at any time request that your evidence, part of your evidence, or answers to specific questions
be given in private and the committee will consider any such request. I point out, however,
that evidence taken in camera may subsequently be made public by order of the Senate.
  The committee has before it submission No. 276, dated 7 September 1998. Are there any
amendments, alterations or additions you would like to make to your submission at this stage?
  Mr Eldridge—No.
  CHAIR—Would you like to make an opening statement and then the senators will question
   Mr Delaney—Thank you. I will raise a question for the committee: what are the indigenous
rights involved and how are they affected by this bill? Indigenous people have a diverse range
of rights and interests in relation to the environment and environment protection. These find
expression in native title and cultural heritage, but the customary and contemporary rights and
interests are much wider, including commercial interests, sustainable land management
practices and intellectual property rights.
   I have three points to raise. My first point is that the Commonwealth ought to have a direct
role in the protection of indigenous environmental interests and values. It is within the
Commonwealth’s legislative power to make such laws and they would provide a valuable
foundation for the effective operation of Commonwealth and state native title and heritage
protection laws and processes. Given this wide range of environmental interests, we have a
strong desire to be involved in the decision making on environmental protection and any other
issues which have the potential to impact on the environment, both in a physical sense and
in respect of native title, cultural and commercial interests and values. However, there is no
provision in the bill for consultation with indigenous interests over decisions regarding actions
which may impact on the environment.
   My second point is that the Commonwealth has a responsibility to ensure that all relevant
processes incorporate a requirement for consultation with indigenous people. There is enormous
uncertainty as to whether indigenous people, or the public generally, will be included in the
consultation processes. The bill provides for bilateral agreements, conservation agreements,
ministerial exemptions, especially accredited assessment processes, and a raft of other delegated
decision making. In some cases, decisions on these issues are made subject to guidelines in
the regulations, but there is a wide range of issues where the minister is permitted to make
sufficient decisions without parliamentary guidance or scrutiny. Essentially, the government
is saying, ‘Trust us, and we will fix the details up later on.’
   However, given the absence of concern for indigenous participation in other parts of the bill,
it is reasonable for indigenous people to be suspicious. It is therefore essential that the bill
provides guidance in the form of criteria for decision making on control actions, environmental
impacts, international obligations, minimum standards for bilateral and conservation
agreements—a requirement in the criteria—and standards for consultation with indigenous
people and protection of their interests.

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  The second reading speech promises that the bill will improve decision making under the
Commonwealth regime and suggests that it will enable early transparent effective accreditation
of state and territory regimes. It is not acceptable for the Commonwealth parliament to create
unfettered decision making powers or to devolve responsibility to the states and territories
without providing the necessary guidance to ensure that these responsibilities are recognised
and fulfilled.
  My third point is that the Commonwealth has a responsibility to deal with a wide range of
national issues to ensure better coordination amongst states and territories. The second reading
speech describes the bill as a comprehensive attempt to define the Commonwealth’s
environmental responsibilities in the light of the rapid advances in environmental management
since the 1970s. Clearly, a significant number of these responsibilities are derived from the
obligations assumed by the Commonwealth at international level. Major issues in the context
of those obligations is the need to recognise and protect indigenous rights, an interest in
biodiversity, incorporating protection of traditional knowledge and practices, and so forth.
These obligations are imposed under articles 8(j), 10(c) and other relevant articles of the
Convention on Biological Diversity. We strongly urge the committee to recommend that these
articles find expression in the bill. Only in this way will the bill be able to ensure that all
regimes recognise and provide protection for the rights of indigenous people in this important
  CHAIR—I will ask you a couple of questions on this first because I think Senator Bolkus
will probably have several questions for you. First of all, you just said that indigenous
environmental issues were not being addressed. But wouldn’t you agree that in clause 8 the
bill protects the rights of indigenous people by exempting them from the need to acquire
permits and other authorisations for traditional practices on lands which they have native title
  The bill also addresses the environmental interests of indigenous people through non-
legislative means: for example, participation in advisory bodies or consultations established
by the minister or department; employment of indigenous people in on-ground management
of Commonwealth reserves and indigenous land management facilitators funded under the
Natural Heritage Trust. There is quite a lot of respect and consideration paid to indigenous
environmental concerns. Wouldn’t you agree with that? If not, what would you like to see
  Mr Eldridge—I agree that there is a reference there that precludes impingement on formally
recognised native title rights. Of course, the rights to which we refer go beyond formally
recognised native title rights. They include rights acquired by means of agreement, both under
and outside the Native Title Act, and rights of traditional practice that have yet to be formally
recognised for the purposes of the Native Title Act. All of these are not covered, if you like,
by clause 8. The sorts of rights referred to in the Convention on Biological Diversity, HA
10(c), are not covered by that specific provision.
  You referred to a range of administrative processes within the environment portfolio which
provide for participation in one form or another by indigenous people. Yes, I accept that there
are such arrangements and that, yes, they are to be commended. The subject at hand, of course,
is the actual mechanisms provided under this act for the protection of matters of national
environmental significance and the processes that apply in the decision making on proposals
for protection, for desecration or what have you. In the context of this bill, there is very little
specific provision. You mentioned advisory committees within the environment portfolio and,
yes, I accept that there will be advisory committees there that involve indigenous

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representation. The two specific committees established under this legislation do not provide
for indigenous representation.
   CHAIR—Which are those?
   Mr Eldridge—The scientific committee and the biological diversity committee. We would
like to see them do so. We, indeed, would suggest, as have several other indigenous
submissions to the committee, that there should be a separate indigenous-specific advisory
committee on matters to do with environment protection, so that the minister could in fact avail
himself through such a committee of the sorts of advice that we believe it is essential that he
have in his decision making processes under the act.
   One of the concerns that we have with the act is in fact the large extent of discretionary
decision making available to the minister without fetter—without the requirement that the
views of affected indigenous people be taken into account in that decision making process.
There, again, is another reason why we would see a very strong role for a separate indigenous
environment advisory committee under the legislation.
   CHAIR—The issue of unilateral powers of the minister has been raised by a broad spectrum
of submitters. You would see him having to consult with and take note of the advice of an
indigenous advisory committee? Is that what you are driving at?
   Mr Eldridge—I think certainly that would need to be one of the criteria. Things that I think
are absent from the act include fleshed out criteria for decision making and fleshed out
standards for the proposed bilateral agreements, for example, with the states. It is in those
forums that we would see, or hope to see, a requirement for consultation with indigenous
interests. Unfortunately, because there are no criteria, or very few, specified in the act and
because the nature of any standards in large part are either not proposed or are left for future
prescription under regulation, we feel somewhat vulnerable in accepting that there will be an
adequate role for indigenous people in the process of environment protection.
   CHAIR—You have also mentioned biodiversity and recognition of indigenous knowledge.
Mr Delaney made the comment that article 8(j) really was not sufficient to allow for due
consideration of these things. In fact, article 8(j) and related articles of the biodiversity
convention provide for the maintenance, promotion and equitable sharing of benefits arising
from the knowledge of innovations and practices of indigenous and local communities that
are relevant for conservation and sustainable use of biological diversity. Clause 301, which
is access to biological resources and associated regulations, provides scope for promoting the
sharing of benefits arising from the use of indigenous knowledge, innovations and practices
relating to biological resources. Again that is pretty broad, so what are your concerns
specifically there? Where and why does that not cover your areas of concern?
   Mr Eldridge—I think it is fair to say that it goes some way towards it. There is one problem
that I perhaps should mention—I think it was mentioned in our submission. For a piece of
legislation that puts itself forward as implementing Commonwealth obligations under
international covenants and agreements, we would have expected to see expressed in the
legislation the obligations that the Commonwealth in fact has under those covenants and
agreements, in principle and in substance as part of the legislation and in total as an addendum
to the legislation to evidence the actual terms of the agreements which the legislation is
seeking to implement.
   In the biodiversity section of the bill, there is some reference to the relevant provisions of
the convention on biodiversity but it is reference in part only. We believe that it could go
much further than it does. One of our concerns, of course, is the fact that there has been an

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awful lot of work done in this area. There is in fact a strategy agreed by an established
Commonwealth working party for the implementation of the convention and in particular 8(j)
and 10(c) of the convention. We would like to see stronger connections between that strategy
and the provisions in the legislation.
   If you wish, I will give you a dissertation on precisely what we would like to see included
in that section of the legislation but I would need to take that on notice.
   CHAIR—You are quite welcome to take it on notice and provide that information addressed
to the secretary of the committee here at Parliament House.
   Mr Eldridge—Yes.
   CHAIR—The only other question I would like to ask you is about national parks. In Sydney
we heard from an indigenous group who were unhappy that the office of director was being
abolished and taken up into Environment Australia. But of course there will still be indigenous
representatives on national park boards. How far does that go to satisfying your concerns about
national parks and so on?
   Mr Eldridge—Not very far. I have to say that we share the concerns that have been
expressed previously by, for example, the Central Land Council. I think, Booderee National
Park and people from Wreck Bay have spoken to the committee.
   CHAIR—We have heard from Wreck Bay, but not from the Central Land Council yet.
   Mr Eldridge—We share their concerns. The National Parks and Wildlife Service is a service
of long tradition. It is a service of some considerable success and it is with some considerable
regret that we see its demise. It has built up strong relations with the indigenous community
and it has shown its worth through the strong involvement of indigenous people in activities
undertaken by the service.
   Some of the particular concerns relating to the changes in this bill to do with, for example,
the management of the national parks, are very much in-principle things in the sense that we
are talking about land that was granted as inalienable freehold Aboriginal land on condition
that it be leased back as a national park under certain terms and conditions. And here we see
the Commonwealth changing those terms and conditions and, I understand, changing them
without any significant consultation with the traditional owners affected.
   Understandably there is some angst among the traditional owners of the respective national
parks concerned. There is concern about some of the provisions. In particular, one that comes
straight to mind is the provision where the minister is able to unilaterally change a
management plan for the national parks. I have not got the detail of the relevant provisions
in my head but I can confirm that there is considerable anxiety about the changes.
   CHAIR—Are you suggesting by implication when you talk about inalienable title that
indigenous people and lands under their control should be exempt from environmental law
brought down by the Commonwealth?
   Mr Eldridge—I am not suggesting for one minute that they should be exempt, but their
traditional rights in relation to natural fauna, the land and its management should be recognised
and taken into account in the application of any framework for the protection of the
   Senator BOLKUS—I will just start with the concerns you had in respect to the repeal and
replacement of the World Heritage (Properties Conservation) Act. Do you still have concerns
in respect to that and the impact that may have on indigenous rights?

ECITA 210                           SENATE—Legislation                 Thursday, 4 March 1999

  Mr Eldridge—Certainly we do. One of the concerns here is that it is one of the areas where
effectively through the exercise of discretionary power, for example, the existing boundaries
of a world heritage site can be changed without due process, or what we would have expected
to be due process, of consultation with affected parties and the like. We do have strong
concerns in that area.
  It brings to mind another point that I think is very important in terms of this area of
discretionary decision making of the minister. It is that many decisions are not given the status
of disallowable instruments. There is some suggestion that the Legislative Instruments Bill
when passed would pick up some of these decisions. At this time the future of the Legislative
Instruments Bill is uncertain and I do not think that we can assume that it will make up for
any of the shortfalls in the current legislation. Certainly, if that were to be the assumption I
would like to see it to be an explicit assumption with a fall-back alternative proposal in the
event that the Legislative Instruments Bill does not become a reality.
  Senator BOLKUS—You also had some concerns as to how this bill would impact on the
Native Title Act. What are those concerns?
  Mr Eldridge—A particular concern is that there will be rights confirmed, acquired through
negotiated agreements that are not necessarily formally recognised native title rights under the
Native Title Act, that will become subject to threat or subject to decisions that can override
the terms of those negotiated agreements through discretionary decision making under this
piece of legislation.
  The important point in relation to this legislation is that it needs to respect and take account
of indigenous rights in respect of land and land management issues. If the tenor of that thought
can be injected into the bill, if adequate consultation provision can be injected into the bill,
then the concerns can be diminished. But in the absence of those, there is a clear threat that
rights, hard won through compromise and negotiation, could well be eroded as a result of
ministerial decisions under this legislation.
  Senator BOLKUS—Which in turn is why you want those decisions made disallowable.
  Mr Eldridge—That is a good reason for it, yes.
  Senator BOLKUS—You have got a whole range of concerns. Has there been any
consultation with indigenous stakeholders during this process?
  Mr Eldridge—The first opportunity we had to comment on this area of legislation was on
a preliminary draft in about June in 1998. That comment was prepared with some haste; I think
we provided the committee with a copy of our submission to the environment department at
the time. It is a fairly scratchy sort of document because of the haste in which it was prepared.
That was our first contact with the issue, and I expect that that was a contact reserved for us,
because it was direct with the department. The actual process of public consultation would
have awaited the process of this committee.
  Senator BOLKUS—Why do you say that this is the appropriate bill to put the biodiversity
convention provisions in?
  Mr Eldridge—I do not know that I said that, but I said that since this bill is purporting to
implement the convention on biodiversity, then it should, in fact, do so. I accept the rationale
that the whole area of biodiversity conservation, involving as it does traditional knowledge,
intellectual property, can arguably be addressed under other areas of legislation. For example,
within ATSIC, as part of a policy development process with the government, we are looking
at ways and means by which we might actually give effect to the ownership of traditional

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 211

intellectual property. One of those means is by separate, sui generis legislation, specifically
for the purpose. We would hope to be putting a proposal to the government within the next
18 months to two years to that effect. So there are other ways and means, but when a piece
of legislation says that it is in effect giving voice to our international obligations under the
convention, we would like to see it do so in a way that adequately addresses the indigenous
interests under that convention.
  Senator BOLKUS—In turn, then, why are the propositions of having a representative on
the biodiversity advisory committee and on the scientific committee not sufficient? Why do
you want the extra indigenous committee? What extra role would that play?
  Mr Eldridge—Biodiversity is one separate piece of the legislation. The legislation identifies
at the outset a series of areas of accepted national environmental significance, which may or
may not involve issues of biodiversity.
  While I am on that point, I might as well elaborate a view that I have formed as a result
of this process. It seems to me that this piece of legislation comes at you looking incomplete.
And it comes at you looking incomplete because it addresses a small proportion of what have
already been accepted and recognised as matters of national environmental significance.
  I understand that the rationale for that is that the other areas of national environmental
significance identified through the COAG process are dealt with under other legislation, under
other programs. If we are putting this legislation forward as a comprehensive Commonwealth
tome dealing with the issue of environment protection, then I believe that those other areas
of national environmental significance should also be addressed under this legislation. If the
government’s choice is to handle it administratively, or to handle it under a separate piece of
legislation, there is nothing to prevent that being the protection afforded under this legislation.
But at least it would then become a complete document of the Commonwealth’s position on
environment protection.
  That being said, and to get back to the question, there is a range of issues that can arise
under matters to do with those identified items of national environmental significance that may
not involve biodiversity issues and therefore will also require some indigenous input into the
decision making process.
  Senator BOLKUS—In that context, you mentioned a couple of areas which should be
recognised as matters of national significance. One is the clean-up of contaminated land from
nuclear accidents or weapons testing. Another is thorium mining. Could you spell out to us
your concerns in those two areas.
  Mr Eldridge—It seemed to us that thorium sand mining was an item that had the potential
to significantly impact on indigenous interests. In the area of nuclear accidents, we had in mind
the issue of the clean-up of Maralinga lands and the gross inadequacy of the processes that
Maralinga people have had to go through—and still go through, because they still are not in
a position where they can be comfortable that the clean-up is acceptable. For those reasons,
we saw them as items that warranted special mention in the legislation.
  Senator ALLISON—I apologise to you for not being here for your presentation: I am not
in as good a position to ask you questions as I might have been. I will start with your
suggestion that we need to extend the reporting date for this committee. How much more time
and what sort of consultation are necessary, in your view, for us to be prepared to debate this
bill in the parliament?

ECITA 212                            SENATE—Legislation                  Thursday, 4 March 1999

   Mr Eldridge—One of our concerns with the bill that I mentioned earlier is the fact that it
leaves so much to faith in terms of regulations yet to be prescribed, in terms of standards yet
to be applied and negotiated in bilateral agreements and in terms of unfettered discretionary
decision making by the minister. Those issues, if they were to be adequately addressed, would
require considerable further development work. The very issue of the legislation itself, even
as it stands, is one that could warrant considerable further discussion and consultation. And
certainly I think the issue of making the legislation complete is one that would require
considerable consideration and discussion.
   Senator ALLISON—By complete do you mean the regulations and the bilateral agreements,
or at least the framework for them?
   Mr Eldridge—Yes. If that job were to be done properly then I would suggest you are
looking at least at 12 months. This is a major piece of legislation. We are talking about a tome
of 440 pages, which we are claiming is incomplete. It is a mammoth exercise, there is no
questioning that, but for it to be done properly would inevitably require a considerable period
of time—certainly considerably more than the length of time that has been afforded people
to date.
   Senator ALLISON—Back in June, in a letter to the committee, you raised the matter of
an exception being made for Kakadu with respect to allowing a range of activities associated
with mining outside the park. Is that still the case, or was that concern dealt with?
   Mr Eldridge—No, I understand that is still the case. There are still special references there
to Kakadu, there are still special references there to the fact that mining does not include the
transport of any substance through or across the area of the national park. These are provisions
that are clearly designed to facilitate the problems that exist there at the moment.
   Senator ALLISON—Could you expand on that? What are the implications?
   Mr Eldridge—The problems associated with the proposed mining at Jabiluka, the milling
of uranium and the transport of all material between the two are all tied up with those
associated provisions. I think the special provisions that exist in there in relation to, for
example, development of the township of Jabiru are again all tied up with the arrangements
under negotiation to do with Jabiluka and Ranger. There was an impact study that was done
last year, I think, that dealt with those sorts of issues. That can be dealt with, of course, outside
of legislation by process of agreement with the interested parties, including the mining
company and the traditional owners. Why we would choose to provide that in legislation
specifically in relation to, and only in relation to, Kakadu—which is our point—to our mind
is neither desirable nor necessary.
   Senator ALLISON—So you are saying that this provision would have the effect of
permitting the transport of uranium from Jabiluka to Ranger? Is that the effect of this?
   Mr Eldridge—I think it facilitates that process, yes.
   Senator ALLISON—Something we have missed thus far.
   CHAIR—As there are no further questions, thank you for coming and adding to the
information we have been given about indigenous issues. I am able to assure you that your
evidence will certainly be considered by the committee in making its report. Thank you very
much indeed.
   Mr Eldridge—Thank you for the opportunity.
   Mr Delaney—Thank you. I would like to leave these copies with you if you have not got
any of them.
   CHAIR—Thank you very much.

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 213

[2.23 p.m.]
HEWSON, Dr Helen, Council Member, Friends of the Australian National Botanic
Gardens Inc.
BODEN, Dr Robert William (Private capacity)
   CHAIR—Welcome. Is there anything you wish to add about the capacity in which you
appear before the committee?
   Dr Boden—I run a consultancy business in nature conservation and natural resource
management under the name of Robert Boden and Associates. My background relevant to the
inquiry is that I was Director of the Australian National Botanic Gardens from 1979 to 1989.
Prior to that I was Assistant Director in the Australian National Parks and Wildlife Service
from 1975 to 1979.
   CHAIR—Thank you. The committee prefers all evidence to be given in public but you may
at any time request that your evidence, part of your evidence or answers to specific questions
be given in private and the committee will consider any such request. I point out, however,
that evidence taken in camera may subsequently be made public by order of the Senate.
   The committee has before it submissions Nos 29 and 208, dated 18 and 23 August 1998
respectively. Are there any alterations or additions you wish to make to your submissions at
this stage?
   Dr Boden—No.
   Dr Hewson—No.
   CHAIR—I now invite you to make an opening statement, at the conclusion of which the
senators will question you.
   Dr Hewson—The Friends of the Australian National Botanic Gardens made a submission
to this committee to express their concern that the bill does not provide an adequate definition
to cover a botanic gardens and the roles of a botanic gardens. The Friends themselves are
concerned to do a whole host of things, particularly raising community awareness of the
scientific, educational, recreational and conservational functions of a botanic gardens.
Accordingly, if the Botanic Gardens were to fall between the lines, as it were, in its recognition
through this legislation, we feel that that would be a very unfortunate move.
   The roles of botanic gardens are multitudinous, in a sense. There is, of course, an aesthetic
role, there is an educational role, there is a scientific role. Those roles are in a horticultural
setting, and the total is provided with a scientific underpin through a herbarium collection,
through associated scientific research and the management of botanical resource data. By that
I refer to distribution of our plants and even an inventorial documentation of the plants that
occur in Australia. Added to that it could be emphasised that a botanic gardens in effect is
a biodiversity resource in its own right. It contains samples of a very large proportion of the
species of plants which occur in Australia. In recent times, as a result of the changed
technology, it is possible to sample even the herbarium specimens to obtain biodiversity
information through DNA sampling and that type of thing.
   World wide, I believe, botanic gardens are now potentially going to be used by those people
who want to survey biodiversity and, in particular, for those like drug companies who are
looking for particular chemicals. It is going to be a great deal easier to go to where it is all
collected in one place than it is to get permission to go out in the field and collect it hither
and yon. I think that aspect of botanic gardens needs to be taken on board and therefore the
role of botanic gardens needs to be picked up in this bill.

ECITA 214                            SENATE—Legislation                  Thursday, 4 March 1999

  The current National Parks and Wildlife Conservation Act does indeed provide a definition
of a botanic gardens. In fact, when the Botanic Gardens came under the umbrella of the then
Australian National Parks and Wildlife Service, it was recognised as necessary to amend the
act to embrace the Botanic Gardens. That was effected early in the 1990s. In conjunction with
that recognition, the Botanic Gardens was required to produce a plan of management and
accordingly provide a set of functions that fitted what this country needs for its environmental
protection and biodiversity management.
   On reading the proposed bill, we find that it is necessary to fit a reserve such as the Botanic
Gardens into the IUCN categories. In reality, those categories do not provide an appropriate
place to fit a botanic gardens. If you expand it out, the closest definition is that provided by
a protected landscape—that means a place where the interaction of people and nature, over
time, has given the area a distinct character with significant aesthetic, cultural or ecological
values. That is really inappropriate for a botanic gardens because, in effect, a botanic gardens
is a managed, ex situ reserve. The protected landscape reserve is very much an in situ area
that has genuinely developed out in the major community.
  It seems to us that there are two potential solutions. Our preferred solution would be to urge
this committee to consider adding an appropriate category, together with appropriate criteria
for the functioning and management of a botanic gardens. The alternative might be to draft
separate legislation, and it would seem to me that doing that would be going against what this
bill is trying to do; it is trying to tidy up legislation and bring it into one integrated document.
Having said that, I would like to draw your attention to a couple of other points. One is that
the Commonwealth does in fact have other botanic gardens that it has care of: there is a
botanic gardens on Norfolk Island, there is one on Christmas Island and there is another within
the Booderee National Park at Jervis Bay.
   The other point I would like to make—and this point was made by Malcolm McIntosh as
recently as last week—is that, as we are moving into a new millennium, maintaining for
Australia the standard of living that we have without absolutely wrecking our environment
is going to require a lot of research from botanists in new ways of managing cropping,
horticulture, forestry—anything that arises from the utilisation of plants. Botanic gardens, of
course, will not be providing all of that scientific research, but they certainly are fitting very
firmly in there as a plank for that research that will take us into sustainable management of
the environment, particularly in the horticultural area, and in that way take pressure off the
natural environment.
  Dr Boden—I endorse what Dr Hewson has said and will not repeat what she has said, but
I will add a few points in the context of the links between botanic gardens and conservation,
and genetic conservation in particular. The role of botanic gardens has changed over time from
one of being purely public recreational places to one of being major scientific institutions. An
example of this is well shown in the Royal Botanic Gardens at Kew which have just received
£30 million, or $A77 million, matched by £50 million of donor funding, to set up a storage
area for the seeds of 25,000 species from arid regions. The reasons for this are quite clearly
set out. As these species are becoming extinct, it is regarded as extremely important that they
be collected and stored to become available for re-establishment at a later time.
  That amount of money sounds a lot, but, as the director of the new facility in Kew said, ‘It’s
costing as much as a Chelsea football club would pay for a decent forward line.’ In other
terms, it is not a great deal of money but it is a very important function and shows the link
between botanic gardens and nature conservation.

Thursday, 4 March 1999               SENATE—Legislation                                 ECITA 215

   The IUCN has had long and close associations with botanic gardens. It drew up a botanic
gardens conservation strategy in about 1985 to show the links and the roles that botanic
gardens have in nature conservation. I was involved in the drafting of that strategy. There were
two main roles. One was seen as an educational role because botanic gardens worldwide
receive 150 million visitors a year. In Australia 5.5 million Australian adults visit a botanic
gardens at least once a year. After cinemas, people visit botanic gardens more than any other
cultural venue. So botanic gardens are regarded as the shopfront for botany and a place where
people can receive education and inspiration in relation to conservation before they move out
into national parks, reserves and wilderness areas, if you like to think of that continuum. The
very important role is in education and awareness of conservation issues, so there is a strong
link between botanic gardens functions and nature conservation.
  The second role is in the research area which Dr Hewson has referred to, particularly in the
storage of genetic material. In most cases, this material will be seed but is also living plant
material. The Botanic Gardens in Canberra have a wide range of endangered species which
are now threatened in the wild. The material from these plants is being used in research and
investigations. These two particular functions are regarded as extremely important to provide
a link between nature conservation and the broad community.
  I should emphasise also that the other revenue earning potential of botanic gardens is the
development of plant material for the horticultural trade—there is a major effort being put into
this by botanic gardens throughout the country—and the development of pharmaceuticals, such
as native tea-trees, for the tea-tree industry. So it is a major concern that in a conservation bill,
which your committee is considering, there is now no reference to the Botanic Gardens
although they were included in the previous act.
  The Botanic Gardens in Canberra started in 1945. For many years there was no legislation
for them. Despite considerable efforts, there was no legislation introduced specifically to
protect the collections until the mid-1990s, as Dr Hewson has said, when the Botanic Gardens
came under the responsibility of the Australian National Parks and Wildlife Service. It is,
therefore, a major and a retrograde step to find that the Botanic Gardens are no longer
mentioned in the legislation and although, as I have said, there is a link between botanic
gardens, conservation and IUCN, this link is not reflected in any of the definitions of reserves
that IUCN has developed.
  Therefore, in the two alternatives which Dr Hewson has mentioned, I strongly endorse that
we must include some reference to the Botanic Gardens in the bill. The alternative is to seek
to have specific legislation in the same way that specific legislation exists for other major
botanic gardens in Australia and for other major cultural institutions in the Commonwealth
arena, such as the National Museum of Australia, the National Library and the National
Gallery. The Australian Botanic Gardens are regarded as a national cultural institution. At
present, it looks as though the gardens are not going to have the legislative protection that
these other national cultural institutions or the other major state botanic gardens have.
  CHAIR—Thank you very much. I would like to ask you two questions. Firstly, you have
raised this issue of the status of the Botanic Gardens under the bill. I just wonder if you are
aware that under schedule 4, part 2, clause 4 of the Environmental Reform (Consequential
Provisions) Bill 1998 [1999] the continuation of plans of management made under the National
Parks and Wildlife Conservation Act of 1975 is provided for. This means that the management
arrangements and status of the Australian National Botanic Gardens will be unaffected by the
new bill.

ECITA 216                            SENATE—Legislation                 Thursday, 4 March 1999

   Dr Hewson—I was unaware of that.
   CHAIR—There is a provision there to continue management plans and this means that the
management arrangements and status of the Australian National Botanic Gardens will be
unaffected by the new bill. That is the advice that I have.
   Dr Boden—With respect, Mr Chairman—and I was not aware of this either—that still, to
my mind, does not place the Botanic Gardens in the appropriate position within the bill that
they justify as a national cultural institution. To my mind, if it is a serious approach to address
the management issues of the Australian National Botanic Gardens, then it needs to be defined
quite clearly up-front in the legislation, not merely relegated to a schedule.
   CHAIR—I am just making the point that it has not been ignored; it is still there. The other
point you make that I want to raise anyway, is about nationally significant taxa—and I see
you are Latin scholars using the correct plurals. You raised some questions about nationally
significant taxa to only be those deemed to be already endangered, vulnerable or presumed
extinct on a national scale and claim that severely limits the Commonwealth’s ability to protect
our biodiversity. In fact, does not the bill provide scope for the Commonwealth to consider
flora and fauna as a whole through bioregional plans and conservation agreements? I would
like you to comment on what further provisions could be incorporated into the bill that would
not impinge upon state rights in this area. What else would you like to see in the bill which
does not fall under the category of a state jurisdiction to protect flora and fauna?
   Dr Hewson—Fielding that from my point of view, the particular botanic garden that I am
a member of the friends of is a Commonwealth botanic garden. I mention that there are three
others that are Commonwealth botanic gardens. Their legal protection cannot really come from
state legislation. They also are in a situation where they can take a national perspective in a
much more realistic way than any particular state instrumentality can. I think we would be—
   CHAIR—I am asking a broader question. The aim of the bill is to define the
Commonwealth’s role in environmental matters by addressing matters of national
environmental significance. Very often flora and fauna issues are, in fact, state issues. You
are asking for some particular kind of legislation to be enacted which deals with flora and
fauna but how can you do that, the question is, without impinging on the jurisdictions of the
states? Do you follow what I am driving at?
   Dr Hewson—I think I do, in that the power with regard to the management of biodiversity
lies with the states rather than with the Commonwealth. Am I correct in that?
   CHAIR—To some extent, but not to a large extent. It is the Commonwealth’s role through
bioregional plans and conservation agreements, but the rest of it lies with the states.
   Dr Hewson—If we are to fit into that planning I am not convinced that ignoring those parts
of us that are ex situ collections or ex situ reserves in the legislation is serving us either way.
I think we should have recognition in the legislation.
   Dr Boden—Specifically, when the Australian Capital Territory was proceeding to self-
government, the decision was made to carve up the territory into national land, territorial land
and designated land for which the Commonwealth still has a planning responsibility. The
decision was made at that time for the area that the Australian National Botanic Gardens was
occupying to become national land, under the responsibility of the Commonwealth. Therefore,
in my view, the national land is a Commonwealth responsibility which cannot be adequately
and effectively achieved by the states as far as specific activities on Australian National
Botanic Gardens land on Black Mountain are concerned.

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 217

  CHAIR—Fair enough. The point is, though, that you are concerned with flora. Did you
envisage any ways that the bill could be improved to protect flora on a national basis without
impinging on states’ jurisdictions?
  Dr Hewson—I think I would have to take that on notice and go away and think about it.
  CHAIR—Yes, you go home and have a good think about it. We have now been joined by
the esteemed president of the ALP.
  Dr Boden—Historically, the decision to create an Australian National Parks and Wildlife
Service, in about 1973, was based on an advice of the Hon. Robert Ellicott, QC, who was then
Solicitor-General, in relation to defining the states’ and the Commonwealth’s powers. There
was quite a lot of discussion before the bill was finally enacted, identifying the
Commonwealth’s role in this field.
   Although it was developed under a lot of antagonism from the states, since that time a lot
of cooperative programs have been developed, both in the national parks and wildlife area
through ministerial councils, and particularly in the botanic gardens area through the Council
of Heads of Australian Botanic Gardens, which has developed cooperative programs
recognising that no particular person or particular state can achieve what is necessary working
alone, bearing in mind the fact that the distribution of plants and animals does not respect state
borders. This cooperative approach has achieved a great deal, both in the national parks
conservation field and, particularly, in the botanic gardens. I would like to table this brochure,
which is the first brochure put out by the Council of Heads of Australian Botanic Gardens.
It elaborates and sets out the roles of botanic gardens, and may be of interest to the committee.
  CHAIR—Thank you very much.
  Senator ALLISON—This is a simple question. I do not think I need to be persuaded about
the importance of the role of the botanical gardens or its relationship to biodiversity. But I
wonder what are the practical effects of not having botanical gardens or the ACT botanical
garden included in a bill. What are the threats to the botanical garden that we need to be
concerned about?
  Dr Hewson—I may be being hysterical, but I would be concerned that it would just be
vulnerable to being abolished. We are hearing the argument, ‘What can we do that the states
cannot do effectively?’ It almost seems to me that your next logical question is, ‘Well, why
have we got you?’ It would be a very retrograde step to remove the national view of
biodiversity, just by default.
  Senator ALLISON—So there is no other statute, there is no other piece of legislation that
actually has you under the Commonwealth’s umbrella, as it were? There is nothing that makes
you exist beyond the current legislation?
   Dr Boden—No. Originally, when it was named the Canberra Botanic Gardens, it was under
the ACT Public Parks Ordinance. It persisted under that for many years. When the National
Parks and Wildlife Conservation Act was amended to include Botanic Gardens, in 1992, that
was the first time there was any legislative protection. Up to that time, the collections,
particularly the material which a lot of the nursery trade had a particular interest in using in
plant breeding and selection, were vulnerable. The herbarium collections had no legislative
protection other than the normal laws of trespass and other civil laws which apply in the ACT.
It took many years to gain that recognition and it would be an enormously retrograde step to
lose it at this stage.

ECITA 218                            SENATE—Legislation                 Thursday, 4 March 1999

  Senator ALLISON—Do you say it is in place in other states, that all the major botanic
gardens have state legislation covering and protecting them?
  Dr Boden—Yes. They all have individual legislation which is comparable to the legislation
which applies to other cultural institutions like libraries, museums and galleries. It is
interesting: you can follow two lines. The International Council of Museums—botanic gardens
historically have been linked more with museums than they have with national parks, natural
areas—recognises that institutions displaying live specimens, such as botanical and zoological
gardens, aquaria and vivaria, et cetera, are included in the broad definition of museums. So
there is and has always been a strong link that way, dating back to the time when botanical
gardens were our pharmacopoeia.
  Senator ALLISON—Can we assume it is your preference that this bill does include the
botanic gardens? You would not prefer to see a separate piece of legislation do that?
   Dr Hewson—It had been my understanding that we were trying to stop having a fragmented
legislation with regard to our biodiversity and that this bill was achieving an integration of
a lot of small bits of legislation. I personally think, certainly from the lines of the questioning
that I am hearing today, that if separate legislation were possible it would be quite meaningful.
But if it were taken within the framework of this act, that would be quite acceptable too.
  Dr Boden—My preference would be for a separate piece of legislation, although I must say
that in the time I was director we had about six abortive cabinet submissions which kept being
put as a lower priority, and that was one of the reasons we never reached the stage of having—
  Senator ALLISON—Was it too hard or was there just not the urgency?
   Dr Boden—There was not the will, I suppose, seen by the government of the time. And
it really was the impetus of self-government in the ACT. It was a territorial exercise because
the Botanic Gardens, since 1949, had been part of the urban parks management in the ACT
and there was a reluctance by various secretaries of departments to lose what was regarded
as one of Canberra’s major physical and cultural attractions. There was a reluctance to lose
that particular institution, and that was partly why it never reached priority.
  Dr Hewson—I would have thought another factor may very well be that there has been a
build-up over the last couple of decades—the last one in particular—of concern for our
biodiversity and our environment, and a real momentum in appreciating what we have got,
how much we have damaged it already and how great a risk we have got ourselves into in
terms of being a desert within a hundred years if we do not hurry up and get our act together
and reverse some of the damages.
  Senator ALLISON—I do not think anyone is doubting any of that. What I am trying to
tease out is the appropriate mechanism for getting the sort of protection that you are saying.
 Dr Hewson—Maybe that change might be considered much more sympathetically than it
was, say, 15 years ago.
  Senator ALLISON—I see.
  CHAIR—I think we will have to leave it there because we are running out of time.
   Senator ALLISON—I have just one more important question, Chair—sorry. Do you think
it is possible to put in an amendment which would do what you have in mind? Is it a simple
matter, or are we talking here about a large section of the bill? Is it just a case of listing the
botanic gardens as one of the matters covered by this bill, or does it require a large section?

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 219

   Dr Hewson—In my naivety, I would think it would be a fairly simple amendment. However,
I have not thought about the total casting of it. What would your feeling be, Robert?
   Dr Boden—No. I think one would have to examine this very, very large bill to see if there
are any other implications but, prima facie, it looks fairly simple.
   Senator ALLISON—We will ask this of the department, too, but you cannot think of any
political reason why this should not be here. Is it possible it is an oversight? There is not some
sensitivity between the Commonwealth and the ACT governments that could be the reason
it has been excluded?
   Dr Boden—No, I am sure it is not that because the ACT administration quite willingly
relinquished the botanic gardens for financial reasons in the 1980s. I think it is probably an
oversight. I am sometimes a bit cynical, and I hope it is not a thin end approach to abandon
the botanic gardens because, in these times of financial strife, I would be very concerned.
   Senator ALLISON—Perhaps they would be desirable purchases for pharmaceutical
companies. Is that your worst fear?
   Dr Boden—Well, yes. Worse things have happened—not worse things, but stranger things
have happened in that the gardens, after being picked up by the National Parks and Wildlife
Service, could equally be abandoned in any political argument which goes on.
   CHAIR—I think at this point we will all have to conclude. I would like to thank you for
your evidence. We will ensure that what you have said is taken into consideration in the report.
Thank you very much for appearing.
   Dr Hewson—Thank you.
   Dr Boden—Thank you.

ECITA 220                           SENATE—Legislation                 Thursday, 4 March 1999

[2.59 p.m.]
ANDERSON, Professor Derek John, Chair, Centre for Plant Biodiversity Research
WEST, Dr Judith Gay, Director, Centre for Plant Biodiversity Research
   CHAIR—I welcome Dr Judy West and Professor Derek Anderson. The committee prefers
all evidence to be given in public, but you may at any time request that your evidence, part
of your evidence or answers to specific questions be given in private and the committee will
consider any such request. I do point out, however, that evidence taken in camera may
subsequently be made public by order of the Senate. The committee has before it submission
No. 296 dated 21 August 1998. Are there any alterations or additions you wish to make to
this submission at this stage?
   Dr West—No.
   CHAIR—If not, I invite you make an opening statement. At the conclusion of your remarks,
the senators will ask you questions.
   Dr West—Thank you. The remarks that I make are just to emphasise what is already in our
submission. Our comments relate mainly to chapter 5 of the bill relating to conservation of
biodiversity. I would say from the outset that, since the previous submission and the
discussions you have just had related to the botanic gardens which we made a comment about,
we will not raise that in our discussions other than to say that the significance of that as a
scientific ex situ collection is obviously something that we would support as well.
   I would like to emphasise some of the items that we are concerned about in the bill itself,
and I will also say up-front that we have only just seen the latest regulations and schedules
that have been given to us.
   One of the items that is of concern to us as a national biodiversity research centre is that
the Commonwealth should maintain very much an active participation in responsibility for
biodiversity on a national scale, and that that national focus should remain. There are items
such as the nationally significant taxa, and the concentration in this bill is aimed at only those
items—those taxa and ecological communities. That is certainly of concern to us from a
national perspective in that it leaves a good percentage of Australian flora and fauna not
protected by the bill. There are many reasons—which you may want to discuss with us—that
concern us.
   In the bill itself there are no regulations and, therefore, there is very little in terms of
standards and criteria by which they would be set up. That the standards are not established
is another concern to us from a scientific point of view. In terms of the national focus, again,
there is this concern about genetic diversity and maintenance of that on a national basis. If
that is all managed at a state basis, then there is no whole of country examination and
watching brief for biodiversity as a whole—and we are not talking about organisms that relate
to political boundaries.
   There has been discussion in Australia in the last year or so about bioregions and about
establishing bioregions as an important aspect of the management of biodiversity on a national
scale. A bioregional basis of national planning is one of the areas that is not recognised in the
bill. It is something that has been raised by other groups, and I think having that multilateral
stakeholder look at the management of biodiversity, which would be done on a bioregional
scale, would be an option that should be looked at.
   A very specific area that is not covered is biological collections—and I am not talking here
about living collections like you have just been discussing in the botanic gardens sense. I am

Thursday, 4 March 1999               SENATE—Legislation                                 ECITA 221

talking about the wealth of information that sits in some key biological collections which the
Commonwealth has responsibility for. Here I am talking about the institution that we are from,
the Australian national herbarium, and there is the Australian national wildlife collection, the
insect collection and the fish collection, all of which are basically documentation and research
facilities of the Commonwealth. They are under the jurisdiction of the CSIRO at the moment,
but they are Commonwealth facilities.
   Whilst the national strategy for biodiversity obviously covers those in section 4 by improving
our knowledge and having that as a prime reason for that whole section, there is really no
recognition of those collections in this bill, and that is the repository of baseline information
in relation to knowledge of the Australian biota. We have a fairly strong belief that the
Commonwealth department of environment and this minister should have responsibility for
maintaining and developing national databases of such information—that is, the flora, fauna,
ecological communities. That should be done on a national basis. Again, that links into
inventory and monitoring, which I will leave my colleague Professor Anderson to say some
more about in a minute.
   But the relationship to the national strategy in biodiversity, I think, is something that the
bill has not really addressed. There has not been a lot of linkage across there. Other
submissions have probably raised this as well. While all aspects of work being done in
Australia by both state and Commonwealth at the moment are trying to address some of the
priority actions in the national strategy that are supposed to be in effect by 2000—there are
many there—it is unlikely that those will be reached in that time. One of those is priority
action Q which is undertaking that we have a good scientific knowledge of Australia’s
biodiversity and can identify the knowledge gaps and research priorities by 2000. Really, that
has to be done on a national basis.
   Prof. Anderson—By way of context, I think it is important for us to recognise that Australia
is a mega diverse continent, that we have thereby significant international obligations morally,
in terms of biological, political and ethical considerations. Therefore, it seems to me that this
bill ought to not only recognise that by way of context but also attempt at least to provide a
piece of legislation which is, in an international framework and by international standards, best
   It seems to me that in a continent of this significant size and diversity that the problem we
have with our political boundaries is that the distribution and abundance of communities and
species and genetic diversity recognises not at all those political boundaries and jurisdictions.
Therefore, I think, the Commonwealth has a very special responsibility to ensure that we have
national coordination in our understanding and management of protection of our biodiversity.
   I take the point that we have bilateral and conservation agreements made possible by way
of draft legislation. It seems—and as my colleague has already emphasised—that we need to
look to the possibility of multilateral agreements for this to be essentially sensible across the
country at large. In terms of the national collections in this context as well, I believe the
Commonwealth has an obligation and responsibility to ensure that those national collections
curated, both live and non-live, are looked at from a national perspective.
   I think, too, that the whole area of research, which is not alluded to at all, it seems to me,
in the present draft bill, needs to be attended to at a national Commonwealth level. That said,
if one accepts those premises and assertions, perhaps, in the bill if it is possible—and I put
this to you—to have the role of the biodiversity advisory committee better spelt out with a
clearer charter than it presently has in the draft legislation. It seems to me that that biodiversity

ECITA 222                            SENATE—Legislation                 Thursday, 4 March 1999

advisory committee ought to have the ability to ensure that inventory and data warehousing
across the country is coordinated effectively; that the monitoring protocols for biodiversity
are standardised at a reasonable level so that we all speak the same language between the
various states and territories; that the role of research is monitored at this national level to
ensure that the meagre resources that are available to us to conduct research are conducted
so that there is no unreasonable overlap and duplication, and that that scarce research dollar
is pointed to where it needs to be spent most effectively. Those are the points that I put to
you, Senator, if I may, by way of explication and amplification of my colleague’s remarks.
   CHAIR—Thank you, Professor Anderson. I would like to ask you a question about this
issue of research. Are you aware that the bill explicitly refers to research and surveys in many
provisions, for example: those dealing with the identification and monitoring of biodiversity,
clause 171; inventories or surveys of species in Commonwealth areas, clauses 172 and 173;
and Commonwealth marine areas, clause 173? Considerable research is also drawn upon in
the development of various plans for species in protected areas and bioregional plans. So why
is it necessary to have additional specific clauses dealing with research activities when, in fact,
they are covered in the clauses which I have already mentioned?
   Dr West—Again, I agree it is acknowledged that they exist in the draft bill. I have not
looked at the new version here. However, they are still tailored towards the nationally
significant taxa. That is the question we are concerned about. It is very clear when you try
to work through this draft bill that the directions are still aimed at Commonwealth land and
still on nationally significant taxa only.
   CHAIR—Thank you. Do you wish to add to that, Professor?
   Prof. Anderson—No. I am happy to rest on that response.
   Senator BOLKUS—You do recommend the establishment of a national inventory on taxa
and biota: to what extent do you want to see that reflected in the legislation? And what sort
of provisions would you want us to be considering in that context?
   Dr West—I do not know about provisions that need to be incorporated. Most of these
responsibilities will be handed in the bilateral agreements to a state level, and the concern is
that most of this work is being done at a national level now and in trying to keep a national
focus. You only have to look at what has happened across Australia to the threatened species
work where we have had a national role until now. Trying to coordinate that from the state
level to the national level has meant a considerable amount of state-Commonwealth negotiation
taking place. I believe it might be quite difficult to maintain a national inventory with no
responsibility at the Commonwealth level.
   Senator BOLKUS—The 1996 State of the environment report emphasised the need for
regional plans and regional addressing of these issues. What I would like to ask you is: to what
extent do you think that has not happened over the last three years? Do not focus on all the
problems, just some of the structural and fundamental ones. You obviously do not see the
regional plans that have been reflected in this legislation as adequate to meet that sort of
responsibility. Can you identify some of the reasons why not?
   Dr West—One of the concerns has been the way most of the dollar has gone in Australia
in the last two years. Any environment funding has gone through the Natural Heritage Trust
and most of that has not been done on a bioregional planning basis. I know that the department
is realising now that they have to look at that and try to synthesise some of that. Because most
of the allocation of funds has been done on an almost ad hoc community level, there has not
been this bringing together of focus within natural bioregions. That certainly needs to be done.

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You are right. That it was identified in the State of the environment report and it has not really
been implemented.
   Senator BOLKUS—And the bioregional provisions in this legislation will not implement
it satisfactorily?
   Dr West—I do not think it is going to the level that it should. It has been done in some
states very recently.
   Senator BOLKUS—There is this problem about what a Commonwealth reserve is and
whether all the taxa found on Commonwealth lands are covered, also, whether the Australian
National Botanic Gardens are within that definition of Commonwealth reserve. What is your
concern there? How is it that the Australian National Botanic Gardens are not included in
Commonwealth reserve definition?
   Prof. Anderson—Our previous colleagues have addressed that question more ably than we
are able to.
   Senator BOLKUS—Could you take that on notice because it does come up in your
   Dr West—We can discuss it if you want to. I said in the preliminary that we would not deal
with it because there were two other people just before who had dealt with it.
   Senator BOLKUS—Sorry. I was not here for that.
   Senator ALLISON—Professor Anderson, you said that instead of having bilateral
agreements we need multilateral agreements. With whom would those agreements be
   Prof. Anderson—It occurs to me that some ecological communities within the continental
area are disjunctly distributed. If you think about saltbush shrublands and the way they are
distributed within the Australian continent, it would require at least one territory and three
major states to be involved in any agreement that had to do with the conservation of fragments
of saltbush shrubland, just as one example. So a bilateral agreement makes no sense, it seems
to me, in some areas of disjunct distribution either of communities, or of species, in particular.
   Senator ALLISON—Does that appear to you to be precluded by the bill?
   Prof. Anderson—Not precluded, but it seems to me that we should be advocating it. I think
the emphasis is on bilateral agreements, as I read the draft, and it seems to me that there ought
to be a better emphasis on multilateral as a potential set of agreements rather than merely
   Dr West—The absence of linkage to local government within the agreements and also
conservation agreements, which you were talking about previously, should be taken into
account in the agreements with the Commonwealth. Most of that management and what is
happening in the active participation on the ground is happening at a lower level than state
   Senator ALLISON—You have raised the matter of the dollars for the environment having
gone to the Natural Heritage Trust Fund. The government maintains that that money is extra,
over and above environment spending. What has happened to environment spending on
maintaining our national inventory since the NHT funding was introduced?
   Dr West—There are political decisions, I suppose, here. Certainly there was no increase
in funding for the environment through the Natural Heritage Trust. It was a packaging process,
but I had perhaps better not go into that. One body that is responsible for developing a national

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inventory is the Australian Biological Resources Study, ABRS, which plays a unique role
internationally. It is a prominent body that has had a very, very small budget for many years
but has an enormous impact on trying to do a national inventory of Australian biota. However,
it was actually excluded from the Natural Heritage Trust and sat outside it for some time. It
has had some extra, smaller bits of funding coming into it from the trust, for particular
projects, in the last year. I do not know whether that body was ever given a title involving
national inventory but basically they have played a role in doing that, and they certainly have
had no increase in funding.
   Senator ALLISON—Are you arguing that, in fact, our national inventory and collections
are less protected under the new bill than under the current legislation? Is there less emphasis?
   Prof. Anderson—I do not believe personally that it is the case, but what I do believe is that
we have a grand opportunity here for integration and coordination that we have not grasped
thus far in our development. I take the point that you have made about environmental research
money being identified, but beyond that there is a vast amount of money being spent on
research in other areas, for example through the Australian Research Council, where
individuals are collecting, pari passu, data which is of relevance to biodiversity in this country,
but we have no mechanism for bringing that data together into a collective national warehouse.
That is why I would like to place the emphasis that I did originally on the role I see for the
biodiversity advisory committee perhaps, either through itself or through a subcommittee,
having that role of national coordination.
   Senator ALLISON—Have you had a chance to examine legislation in other countries?
Today we have heard a fair bit about the Canadian legislation, which is relatively recent and
according to some of our witnesses, at least, is a model that we should look at. The committee
has not had a chance to see any detail of that legislation. Is there world’s best practice in this
respect, or has Australia got particular circumstances that warrant a different approach?
   Prof. Anderson—I do not believe the Canadians can match our biodiversity in terms of
megadiversity. It may be best practice for what they have available, but I doubt that they are
that far ahead of us in that sense.
   Dr West—Also, I guess, our internal political boundary arrangement is a bit different from
Canada, in that our management is at state level and on the ground.
   Senator ALLISON—New Zealand is another that has rewritten its environment legislation
   Dr West—I would not take that as best practice, but that is another matter.
   Senator ALLISON—The committee is just grappling with the fact that there have been a
lot of criticisms of this legislation. What we are interested in is to know whether anyone does
it better and, if they do, to have some information about that. But you cannot enlighten us
   Dr West—No. About specific issues there is, and our endangered species protection
legislation—one of the bills that have been rolled into this bill—is certainly very much ahead
on a world scale. It has been legislatively very strong up to now.
   Senator ALLISON—Is there a threat from the ever-present privatisation and tendency to
sell off institutions and the like? Do you perceive that to be a threat in this country, too, given
the interest that pharmaceuticals have in biodiversity? Has that ever been suggested to you
to be a possibility?
   Dr West—Which institutions are you thinking of as being sold off?

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   Senator ALLISON—Selling off or contracting out. Is there a threat out there from industry
to take this over, or for governments to be less interested in it and want the private sector to
run it?
   Dr West—One of the areas of the bill that is very weak is the access to genetic resources
section, which has about half a page and says it is dependent on the regulations that may be
drawn up. That area, certainly, is something that the Commonwealth has been grappling with.
You raised the pharmaceutical industry; that is clearly one area that is of concern. Presumably,
there will be some elaboration in the bill about the access to genetic resources sections,
because that is very weak at the moment. You are not going to sell off all of Australia, but
it is a matter of making sure Australia has some regulation of access to our genetic resources.
   Senator ALLISON—So you would be looking for that in the regulations? Is that what you
are saying?
   Dr West—Definitely.
   Senator ALLISON—Is it appropriate to have it in the bill, or should we wait until we have
those regulations before we judge the adequacy of the bill?
   Dr West—Maybe, but that is a catch-22 to me, because there are not any—
   Prof. Anderson—Which comes first?
   Dr West—Yes. That is what concerns us about the lack of standards and criteria in here
now—that it is dependent on their being in regulations. It seems to be that everything is in
a rush and so you cannot judge whether it should be in the bill or not, as to how strong it is
going to be in the regulations.
   Senator ALLISON—I do not think we have had a witness yet who has said they would
not want to see the regulations and the bilateral agreements, or at least some of them, up front
before the bill is considered. So you are not the only ones there. The government says, on the
other hand, ‘It is unusual for us to have regulations written at the time of the bill being
   Dr West—Maybe the criteria and standards do need to be in the bill, if that is the attitude.
   CHAIR—That would appear to be all, so I thank you very much for appearing. Your
evidence will be taken note of in the drawing up of the report.

ECITA 226                           SENATE—Legislation                 Thursday, 4 March 1999

[3.23 p.m.]
MARSDEN, Dr Susan Elizabeth, National Conservation Manager, Australian Council
of National Trusts
JONES, Hon. Dr Barry Owen, Vice-President, Australia ICOMOS
MARSHALL, Mr Duncan Anthony, Honorary Treasurer and Executive Committee
Member, Australia ICOMOS
   CHAIR—Welcome. Do you have any comments to make on the capacity in which you
   Dr Jones—I am the Vice-President of Australia ICOMOS with responsibility for world
heritage matters, and a former vice-president of the World Heritage Committee.
   CHAIR—The committee prefers all evidence to be given in public but you may at any time
request that your evidence, part of your evidence or answers to specific questions be given
in private, and the committee will consider any such request. I point out, however, that
evidence taken in camera may subsequently be made public by order of the Senate.
   The committee has before it submissions Nos 40 and 78, dated 19 August and 21 August
1998 respectively. Do you have any alterations or additions to your submissions at this point?
   Dr Jones—Yes. Mr Chairman, if I could expand perhaps by explaining the context of the
World Heritage Convention and its implications so far as this Environment Protection and
Biodiversity Conservation Bill is concerned. I hope by now you have had circulated another
three pieces of paper with my name on dated 4 March 1999 where I have got some practical
   The World Heritage Convention was first published in 1972. There are now 156 states
parties and Australia was one of the very early signatories of it. Under the World Heritage
Convention, world heritage properties are really divided into two categories—or three in a
sense—the cultural category, natural sites and then there is the third category of mixed, but
essentially the two, cultural and natural.
   Under the World Heritage Convention, three organisations were recognised—two of them
were actually created and one previous organisation recognised. The IUCN, the International
Union for the Conservation of Nature, has a responsibility for providing arm’s-length expert
advice to the world heritage system on natural sites. Then there is ICOMOS which is the
International Council on Monuments and Sites. ICOMOS is a body whose headquarters is in
Paris; it is an international consortium of people with expertise in that area. I slip in sort of
as an historian, but it consists of historians, of planners, of conservation experts, of
palaeontologists, of archaeologists and the like.
   There is a third body which is set up under the convention which is called ICCROM which
is the International Centre for the Conservation and Restoration of Monuments, and Australia
contributes each year to the ICCROM under its budget.
   Of the 582 world heritage sites on the list, 445 of them are cultural heritage sites—sites like
Notre Dame or the Taj Mahal. A hundred and seventeen of them are natural sites and 20 of
them are mixed sites—in other words, cultural and natural—adding up to 582.
   Australia is in the extraordinary position—and this extraordinary position is reflected in this
bill—that our total number of cultural sites is zero, the number of natural sites is eight and
the number of mixed sites is four. Those four are Uluru, Kakadu, the Tasmanian wilderness

Thursday, 4 March 1999               SENATE—Legislation                                ECITA 227

and the mixed site of Naracoorte and Riversleigh which have both natural and cultural
   What that suggests is that in Australia, when we are making decisions about heritage, we
are really thinking all the time about natural heritage and the cultural heritage barely comes
into it at all. It is not an accident that the name of the department with responsibility here is
Environment Australia—no suggestion of heritage, and in fact when you look at the legislation
you can see that the Heritage Commission is being pushed towards the door and may disappear
almost any minute.
   In a way it has been difficult for the department to get its head around the idea that there
are other things and that cultural heritage is significant. It is not, again, altogether a surprise
that the Natural Heritage Trust had a budget of about $1 billion which went towards the
support of natural heritage.
   When you start to look at how much is involved in the support of cultural heritage, drawing
a bit of a long bow, you might possibly be able to work out a total figure of something like
$70 million, but you would have to say that there is an extraordinary discrepancy. I just draw
your attention again to the fact that in the world scene cultural heritage properties outnumber
the natural three to one. But in our case the discrepancy between cultural and natural is
infinity, because we have never put one up. In fact, when propositions have been put up for
cultural heritage such as Sydney Opera House in its harbour setting, or like the serial convict
site nominations, there has been extreme nervousness about putting it up.
   That is partly because within the department itself the people who really have been driving
this legislation, the people who have been pushing it, have got a strong understanding, indeed,
a good understanding of the natural environment. From that point of view, the bill is a pretty
good bill, so far as it deals with the natural; it is not perfect, but it is really pretty good. But
what we are more concerned about in ICOMOS is not what is in the bill, but what is not in
the bill.
   As you can see in that memorandum that I just circulated, there are a number of propositions
that we would like to put to you. One is to suggest that you might give consideration to
recommending that the name of the bill be amended so that instead of simply being the
Environment Protection and Biodiversity Conservation Bill, it is called the Environment and
Heritage Protection and Biodiversity Conservation Bill, so that you really make sure that
heritage gets some sort of look in.
   The bill in its present form perpetuates, and I think even institutionalises, a very longstanding
imbalance in natural and cultural heritage recognition in Australia. As you will notice, we have
proposed a kind of amendment that could go in at the end of the motion for the second reading
which the committee in its infinite wisdom might be interested in developing.
   Senator BOLKUS—You do not suggest we should negate the bill on the second reading.
   Mr Jones—No, the bill itself is a valuable bill, and if you look at what is proposed it is
sensible. It is what is left out that I am concerned about; those concerns would be allayed if
you had a statement from the government to say that they will produce some complementary
legislation which would in fact address some of those concerns.
   Firstly, we are concerned—and we hope you would be concerned—that the bill treats cultural
and indigenous heritage as a subset of the natural environment. They say, ‘There is an
environment department. It knows a lot about it and it is concerned with biodiversity. All those
other elements associated with heritage can be subsumed in that.’ If you look back as recently

ECITA 228                               SENATE—Legislation                    Thursday, 4 March 1999

as 1938, with our sesquicentenary, we found, in the official publications put out for that, that
Aborigines were treated as part of the biota, that they were treated as part of the fauna, to say:
we have got kangaroos; we have got wallabies; we have got emus; and, oh yes, we have got
Aborigines as well.
   In a sense, where is indigenous heritage in all this? The answer is: it has dropped off. And
very strikingly, when the department put out its discussion paper on the reform of
Commonwealth environment legislation, strangely, the discussion paper talked about the reform
of the legislation but, in the course of it, there is not one word about indigenous cultural
heritage—not a word. It simply dropped off. They did not think of it, because if you are
thinking primarily of biota, if you are looking primarily at biodiversity, then you think, ‘Hang
on, how does indigenous cultural value come into it?’ I think that is a major mistake.
   Second, the definition of cultural heritage in section 12, relying on the World Heritage
Convention, is far too rigid. Normally I am very keen on the World Heritage Convention, but
if you look at the definition you see it says ‘in this act’—rather strangely, there are references
to world heritage values—and then it goes on and to say:
cultural heritage has the meaning given by the World Heritage Convention. natural heritage has the
meaning given by the World Heritage Convention.
  But what the convention is referring to is universal cultural value. In other words, when you
are looking at something like the Great Barrier Reef, you say that this is absolutely unique;
there is nothing else like that in the rest of the world. But many of the things that we would
expect to have preserved in terms of cultural heritage in your own state, Mr Chairman, or
yours, Senator Bolkus, or even in the great state of Victoria, are not necessarily of universal
value, but they are recognised as being of national significance. It is so extraordinary that the
definition in section 12 actually excludes local and national significance, and—although it does
not spell it out—what it really says is that it has to be of universal significance or it is not
covered at all.
  The proposed amendment continues:
(iii) that funding for natural heritage areas under the Natural Heritage Trust is not matched by equivalent
support for cultural heritage properties,
(iv) that successive Governments have failed to nominate any Australian sites for the World Heritage List
for their cultural values alone, although a majority of properties on the List—
that is, internationally—
have been inscribed for cultural value. . .
  On reflection, having heard the earlier discussion, I would put in a new fifth subclause
(v) fails to preserve the principle of separating decisions about heritage value and the management of
heritage places,
That seems to us to be a major deficiency, and my colleague Duncan Marshall will talk about
that. Then the amendment would continue:
(vi) invites the Government to propose complementary legislation for the protection of cultural sites.
I might leave it at that, Mr Chairman.
  CHAIR—Thank you. Dr Marsden.
  Dr Marsden—I represent, obviously, all the National Trusts. The Australian Council of
National Trusts is the coordinating body for them all. We are all in agreement that the whole

Thursday, 4 March 1999               SENATE—Legislation                                 ECITA 229

system of environment and heritage protection in Australia is long overdue for review and so
we are in support of that process.
  What really strikes us about this bill—and I might say also the Aboriginal and Torres Strait
Islander Heritage Protection Bill—is that they do not relate much to each other. There is a
whole process going on at the moment of reviewing heritage strategy at Commonwealth and
state level. There has been agreement between all levels of government for complementary
environmental and heritage legislation. Therefore, we should see that this review actually
produces the best outcomes for the country’s heritage, and not just the international icons but
every part of Australia’s heritage.
  I certainly would support what ICOMOS has just said about this bill. The fact is—and I
would like to add this as a comment to our existing submission—that it seems quite likely
in fact that the new heritage legislation, which is supposed to be worked on, may actually be
plugged into this environment bill. If that is the case, it is not only that this bill actually omits
mention pretty well of cultural heritage values, but the whole structure of the bill is completely
oblivious of the whole approach to cultural heritage preservation in Australia at the moment.
  There was a national heritage convention—and I am sure you are all familiar with the
outcomes of that convention—which actually did attempt to establish national principles and
standards, none of which are mentioned in this bill. For example, one of our major concerns
with this bill includes the lack of even adequate standards, let alone best practice standards.
  We also are concerned about this bill because of the whole legislative context for
environmental and heritage responsibilities. That is, there seems to be a common move that
this bill reflects for the Commonwealth to withdraw from its responsibilities, both by limiting
very narrowly what it will be responsible for and, secondly, by delegating mainly to state
government responsibilities for environment and heritage matters, without any effort to
establish standards or processes of monitoring, or in fact permit or encourage public
participation in the establishment of those standards or bilateral agreements.
  For those reasons in particular, we are very concerned about this bill. I disagree that it would
be sufficient merely to rename this bill, because it really is not a heritage bill at present.
Probably every single section of it would have to be rewritten with the idea of heritage
conservation and especially cultural heritage conservation in mind.
  In terms of the specific concerns that we have talked about, one of the omissions which
again reflects the lack of reference to the 20-year existence of the Register of the National
Estate is that the Commonwealth omits responsibility for places of national heritage
significance. It talks about world heritage sites but not national heritage sites, even though at
the same time, in parallel, there is discussion about the Register of the National Estate, what
will become of it, whether there should be a national list of heritage places established, but
none of this is reflected in this bill. That Register of the National Estate does in fact include
natural places as well as indigenous and other cultural heritage places but, again, that is not
reflected in this bill.
  There is a great deal of debate and discussion. As I said, the National Heritage Convention
last year brought together a large number of people from all jurisdictions and from Aboriginal,
natural and historic environments to discuss national principles and standards for heritage
conservation. So there is some movement in that direction to establish those, but none of those
are reflected in this bill. Again, that is an extremely important thing to point out. Not only
cultural heritage but, for that matter, geological values are absent from this bill, which is worth

ECITA 230                            SENATE—Legislation                 Thursday, 4 March 1999

pointing out. I think that is another important point to raise. Quite often, of course, places of
geological value have associated values.
   It is worth pointing out, too, in relation to Barry Jones’s comment about the world heritage
places in Australia, that there is a nomination proceeding at the moment for Australia’s first
purely cultural heritage place. That is a serial nomination of convict sites. In other words, even
if this bill were passed now, it would already be out of date because it would not actually
relate to what may well be our first, if you like, purely cultural world heritage site, which is
in fact seven sites around Australia. It is worth emphasising that, that times are changing and
this bill is already lagging behind those changes.
   The other point I mentioned was about public participation in the environmental decision
making. I would particularly like to support the concern about Aboriginal people’s culture and
also, perhaps as importantly, participation in agreements and in standard setting. The great
connection between people and country is such a strong theme in heritage preservation now
across Australia, whether it is Aboriginal or non-Aboriginal, and it should actually be a
mandatory requirement in the preparation and implementation of bioregional and strategic
plans, quite apart from cultural heritage plans.
   Similarly, the whole role of non-government groups, of which we are a part, is also very
much overlooked. Really, the whole movement for heritage conservation and for natural
environment conservation—traditionally and still—has been pushed along by non-government
groups. This is not reflected either in this bill, and we think it is very important that it should
be. Thank you.
   Mr Marshall—Mr Chairman, I realise time is pressing but, if I may, I want to speak to you
very briefly on the second and third pages of the additional submission. Barry spoke to the
first page of the additional submission we provided; I would like to tease out a few of the
points made in the second and third pages. The first one is to support the National Trust’s
comments and the comments we made in our original submission that the focus on matters
of national environmental significance seems in many ways to be a retrograde step driven more
by a rationalist approach rather than achieving better environmental outcomes. There is no
evidence to suggest that the states and local government are willing or able to fill the gap left
by the Commonwealth withdrawing from the field.
   I would also like to emphasise that the bill has apparently significant impact on the joint
management of two of Australia’s world heritage properties—Uluru Kata Tjuta National Park
and Kakadu National Park. Our attention has been drawn to the submission of the Central
Lands Council with regard to this bill. Those parks are very special places for a variety of
reasons, including the fact that they are the subject of joint management arrangements between
the Aboriginal people who own and live in those areas and the Commonwealth, through the
Director of the Australian National Parks and Wildlife Service.
   That is a very special circumstance—the joint management arrangements—and Australia
ICOMOS shares the concerns of the Central Lands Council with regard to three aspects in
particular in the proposed bill or the consequential provisions: the abolition of the statutory
position of the director; the transfer of leases to the Commonwealth as opposed to the position
of director; and, finally, the Northern Territory government representation on park boards. If
joint management is to mean anything in this context, it would seem only fair and reasonable
that the Aboriginal owners of those parks have a reasonable opportunity to discuss with the
government any proposed changes to their management arrangements, rather than have
coercive provisions included within the current bill.

Thursday, 4 March 1999                SENATE—Legislation                                ECITA 231

   A couple of brief detailed comments. There appears to be no standard for the minister to
apply with regard to decisions about proposals considered under the environment protection
sections, such as the feasible and prudent test, which is in the current Australian Heritage
Commission Act. There is no hurdle, if you like, for the minister to use in deciding whether
or not to approve proposals presented to him. He has to consider a range of matters but, at
the end of the day, there is no guidance provided to him to say that environment protection
shall overrule, if you like, certain factors or matters unless there are matters of national interest,
or unless there is no feasible and prudent alternative, or something of that sort. We would
encourage some consideration of that.
   There still appear to be very many exemptions in this bill, perhaps far too many exemptions,
of Commonwealth and other actions which seems to weaken the proposed legislation. And
there is another sort of exemption, that the minister will become exempt from the provisions
of the Australian Heritage Commission Act, which, we submit, cuts out the heart of the
commission’s role in protecting the environment and contrasts sharply with the government’s
promise at the recent election to retain the commission.
   The second last point relates to public access to decisions and agreements. There are some
decisions or agreements which are provided for in the legislation which may be of such
significance and public concern that the draft versions of these should be available for public
comment before they are finalised. There is the particular case of bilateral agreements where,
while they may get published after they are agreed, there is no process for public review in
the draft form. There should also be a consistent approach to the publication of decisions,
agreements and reports under the legislation. There appear to be a couple of holes in the
publication schedule, with a number of agreements, reports or decisions which are not
necessarily to be published.
   Finally, on the question of standing, the two-year threshold for standing of parties to seek
injunctive relief seems unreasonable if the environment can be interpreted as the specific
environment affected by some proposal. If the Commonwealth proposes tomorrow to demolish
Old Parliament House, it would seem possible, on one reading, that Australia ICOMOS could
not seek injunctive relief under the legislation because, if the environment is to be cast in a
narrow way, we would have to be able to demonstrate that we had been involved in that issue
in the last two years. I will leave it at those points, thank you.
   CHAIR—Thank you, Mr Marshall. A lot of the points you have just raised have been
covered already in other submissions and responded to. I would like to ask a couple of short
questions and then I will hand to Senator Allison. First of all, to ICOMOS: you express
concern that the minister should be responsible for deciding whether or not to enter a place
on the national list, but in fact the legislation provides that the minister should have expert
advice in making that decision. Given that, isn’t it appropriate that the minister should be the
person who makes the decision in that he is accountable to the public through parliament and
he is acting on expert advice? Why do you see that process as flawed?
   Dr Jones—I think what we were concerned about was more that there ought to be a
distinction between how the decisions are made and then how the thing is managed. That is
the major distinction that we wanted to make.
   That separation of decisions about heritage value and the management of heritage places
is generally regarded as a fundamental principle of heritage conservation. Of course, under
our system, the minister in a sense takes ultimate responsibility. But it would be argued that
the minister himself ought not to be taking a determination—that when he acts, he acts on

ECITA 232                            SENATE—Legislation                 Thursday, 4 March 1999

advice. There has got to be clear transparency as to where that advice is really coming from,
and then we have to make sure, after the decision to put a particular property on a list, that
we do not say, ‘We are also running it and we will run it our way.’ There ought to be those
two levels of separation: the advice comes from one channel, the minister takes responsibility
for it and then he is not directly involved in a hands-on way in the actual management.
   Mr Marshall—In a number of state jurisdictions it is not the minister who makes the
decision about whether places go onto a register at a state level or not. That decision is happily
left to expert councils or bodies equivalent to the Australian Heritage Commission.
   CHAIR—One reasonably might expect that the minister will set up a genuinely expert
advisory body, don’t you think? I take the point about management being separate; that is a
reasonable distinction to make. But the whole national heritage places strategy is still being
developed. I suppose the kinds of arguments you are putting in this particular issue, as well
as several others that you have put, are really issues that could be raised in the consultation
process to develop that strategy, because in fact it is still being developed. One would hope
that you will have input into that consultation process, because obviously you do have quite
considerable expertise and worthwhile ideas. I think you have to accept, though, that it has
not been developed and a process will occur to develop the strategy in more detail as time
goes on.
   Dr Jones—But, if one could use an analogy, in an area like the arts, for example, you could
understand that we have had various ministers who have had tremendous enthusiasm for the
arts. But on the other hand, if they were actually going to determine the repertoire that the
Australian Opera were going to put on, that would be a wretched excess.
   CHAIR—The mind boggles. One quavers at the thought.
   Senator ALLISON—Could I go back to the question of consultation. You gave the minister
a fairly detailed response to the discussion paper. Which of the points that you outlined were
not picked up? Or is it easier to say which were? Presumably you put this very strong case
that heritage should be built in there, not just in the title but throughout the bill. What was
the response? Was it, ‘We are coming along later with another bit of legislation to deal with
that’? What does the government say?
   Dr Jones—There has been talk about providing for a heritage ‘module’—something very
portable, we think. But we have yet to see the module and we do not know whether it will
   The fundamental distinction reminds me of a dialogue of the deaf. Goering famously said,
‘When I hear the word ‘culture’, I reach for my revolver.’ When the department of the
environment hear the words ‘world heritage’, they mean environmental heritage. The idea of
cultural heritage, or indeed indigenous heritage, is not something that they are altogether
familiar with. The result is that, while there is certainly a world heritage section and there are
very skilled people there, the great thrust of the general approach of the department has been
not to really regard the cultural heritage areas as being of equal importance. As I say, it is very
   I am not saying that this is something that has only happened since the change of
government. It was true under the previous government. So it is extraordinary that up to this
point not one cultural heritage site has come up, and 16 years, I think, after Sydney Opera
House in its harbour setting was first proposed, we still have not got the proposal actually
submitted to Paris.

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 233

  Senator ALLISON—But that was not just some confusion about what was natural and what
was cultural. I would have thought the reluctance to deal with cultural problems was related
to the restrictions that might be imposed by them on development. Isn’t that the issue?
  Dr Jones—That is one of the issues, but the point is—but I do not want to sound political,
notwithstanding my priors—that I do not think there is a feel for it.
  Dr Marsden—That is reflected in the bill. That was my point earlier about any plug-in. That
is the worry. Senator Eggleston made the comment that we should supposedly have
consultation in place for some future piece of heritage legislation. That would be fine but the
concern is that in fact this is it.
  Senator ALLISON—Did you receive any undertakings by the minister or the department
that this module would come along in the foreseeable future, or did you know about the
process for developing it?
  Mr Marshall—Before the legislation there is supposed to be a national heritage strategy.
The National Cultural Heritage Forum received commitments from the minister, I think in the
middle of last year, that the strategy was imminent and that it would be provided to forum
members for comment before the drafting of legislation. We have not seen even that strategy.
There is a willingness, I think, to provide us with documents when they are finalised, but we
are waiting and have been waiting for quite some time for the detail.
  Senator ALLISON—It sounds like yet another good reason to wait and not deal with this
bill until we have that too.
   Mr Marshall—One of the possible problems that we anticipate, as I think Susan is saying,
is that this current bill may well set the goalposts or provide the toolbox for the way in which
we are dealing with cultural heritage in Australia. Quite frankly, if you were to choose between
the current Environment Protection (Impact of Proposals) Act and the Australian Heritage
Commission Act—two different pieces of legislation, one dealing broadly with the environment
and one dealing with the national estate—you would choose the more specific piece of
legislation to deal with your concerns. That is the national estate or cultural heritage in this
  One of my concerns is that we will end up, through the current process, with a very general,
broad brush piece of legislation—the environment protection of this—which will not deal
adequately or effectively with cultural heritage. We will be replacing specific legislation for
the national estate with generic legislation for environment protection.
 Senator ALLISON—So the national estate legislation as well as the Australian Heritage
Commission Act are both rolled into this but disappear. They roll out, if you like?
  Dr Marsden—Yes. That was my point earlier. It seems that when this bill, in a sense,
discusses what Commonwealth responsibilities there will be, what kinds of standards there
will, what kinds of processes, what kinds of bilateral agreements, they are all general
statements that, by implication, will also apply in the cultural heritage sphere. That is the great
  Senator ALLISON—You mention in your submission that the states do not offer real
heritage protection in all cases. A number of submitters have suggested to us that before we
have this legislation at the federal level there ought to be some sort of consistency developed
in standards and legislation for various environment aspects covered by this bill, and that this
legislation should not be enacted until that happens. Would consistency in heritage protection

ECITA 234                            SENATE—Legislation                 Thursday, 4 March 1999

at the state level be another thing you would encourage prior to the Commonwealth shoving
off, as it were, some of the responsibility to the states?
   Dr Marsden—Yes, it would. The fact is that we do now have heritage legislation in every
state and territory. That is a fairly recent phenomenon—interestingly enough, largely prompted
by and as a consequence of the Australian Heritage Commission Act.
   Senator ALLISON—Is it consistent? Is it adequate?
   Dr Marsden—No. It is very, very poor, and how they go about doing it is very variable.
I have just come back from Hobart, where there was a big contrast drawn between how they
do it in Western Australia and how they do it in Tasmania, and they are the last two states—
1990 and 1995—which actually adopted heritage legislation. One of the points of the national
heritage places strategy is exactly that, to actually say, ‘Can we establish these places?’
   Senator ALLISON—So if the commission could not manage to get each of the states to
develop adequate and consistent heritage legislation, what chance is there of the
Commonwealth getting bilateral agreements with the states on a whole range of areas?
   Dr Marsden—It is not just a matter of bilateral agreements. And, even if there were
adequate standards, the other part of this is the monitoring of those standards. You can have
standards without people actually adhering to them, and there is no provision in this bill for
that, either.
   Mr Marshall—The Commonwealth is already negotiating, and has already negotiated, what
are effectively bilateral agreements in a number of specific areas.
   Dr Marsden—Like regional forest agreements.
   Mr Marshall—Regional forest agreements are one. The Heritage Commission and, I think,
the ACT government and another state, which escapes me—maybe South Australia, one of
those other states; Heritage Victoria, I think, also—are negotiating what are effectively bilateral
   One of the points I was going to just add was that you have also got to be very careful to
distinguish between a theoretical level of protection available—looking at what the words of
the act are—and the actual level of implementation of legislation. One of the big issues at state
level is resourcing, as perhaps it is everywhere. You may have a wonderful piece of legislation
but no way to implement it or a very poor way of implementing it. If the Commonwealth is
going to negotiate bilateral agreements based on the theoretical level of protection, it is going
to be sadly disappointed with what actually happens in terms of state processes.
   Dr Marsden—I was told in Tasmania on the weekend that it is exactly the case with the
Tasmanian Heritage Council. It is only actually doing one part of its legislative requirements
at the moment, because it does not have the resources to do the other part. So there it actually
has the legislation but does not necessarily do it.
   Senator ALLISON—That brings me to the next point. Many other groups have suggested
that there be appointed and built into this legislation a commissioner for the environment, who
would conduct audits of the effectiveness of the legislation, bilateral agreements, conservation
agreements and the like. Is that something you would support as well, and should we have
a separate commissioner for heritage. Or is it the role of ICOMOS and all these other bodies
to monitor how effective or otherwise legislation is being?
   Dr Marsden—The National Trust certainly argues very strongly for that, but we would see
that office as being one that would overview natural and cultural environments, not necessarily
one specifically for cultural heritage. Was that what you were asking?

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 235

   Senator ALLISON—Yes, I think so.
   Dr Jones—The point about ICOMOS and IUCN is that they provide arm’s-length advice
at two levels. They provide arm’s-length advice to the World Heritage Committee and the
World Heritage Centre in Paris. Then, because there are local branches of IUCN and
ICOMOS—ICOMOS is in 85 countries, or something like that—they are able to provide some
sort of input on site, at the particular country involved. But they do not really become part
of the management process. They are able to maintain their objectivity and they provide advice
as and when required by the local government, but they are also in a position to talk back to
the organisation—in the case of IUCN, I think in Gland, in Switzerland; and, in the case of
ICOMOS, in Paris.
   Mr Marshall—I would like to add a couple of points. I am not sure whether ICOMOS has
a particular position on the idea of a commissioner for the environment. It seems to me that
the idea of an independent expert body or person to review environmental performance exists
in one sense in the role of the Heritage Commission at the moment with regard to the national
estate. Perhaps it is not given full rein, and perhaps it should be. I am sure that Australia
ICOMOS is most concerned that there should be an independent expert advisory body at least
on the national estate advising the variety of processes. There are provisions within the
legislation for directed environmental audits. One of the small anomalies is that there is no
provision to require the publication of those audit reports.
   Finally, the bilateral agreements under section 65 subject to review would probably be
strengthened if the requirement were for independent review, otherwise you might get Caesar
reviewing his own performance.
   Senator ALLISON—Dr Jones, you say that you do not support a national list, at this stage,
of cultural heritage sites.
   Dr Jones—No, I did not say that.
   Senator ALLISON—Sorry. That is part of ICOMOS’s—
   Mr Marshall—We do not either, actually, although we did not say it.
   Dr Marsden—There has been a lot of discussion. I suspect it is actually part and parcel
of the theme that we keep stressing, which is that of the Commonwealth—to put it mildly—
devolving responsibilities to the states. One part of that process seems to be a very strong push
for establishing a national list which is much less than the 11,000 to 12,000 items that are now
on the Register of the National Estate. The reasons for that include in fact a concern that the
Commonwealth cannot devote sufficient resources to look after those 12,000 sites. Therefore,
it would be better placed to put money into looking after a more select list. But there is a great
deal of concern about that.
   However, having said that, in this current bill, there is actually no mention of national places
of significance. So there is not even any mention of the Commonwealth having responsibility
for any list, no matter how large or small. So, in a way, it is another step back from our
concern about there being a national list here. There is no national list at all, of any kind.
   Mr Marshall—Presumably it will be part of the heritage module to come forward.
   Dr Marsden—Unless it is part of the heritage module, yes.
   Dr Jones—This is why I thought the definition distinctly odd. If you look at clause 12, the
definition of national heritage and cultural heritage is the definition in the World Heritage
Convention. The point is that at this stage we have established that there are 12 sites of
universal significance. If the Commonwealth said, ‘We will close the list at 12, we might even

ECITA 236                           SENATE—Legislation                 Thursday, 4 March 1999

go to 14; as for all the rest of the sites, you are on your own,’ and the result is seen as being,
‘Our responsibility finishes there,’ then you would have thousands and thousands of very
valuable sites which would be simply thrown to the wolves.
   Senator ALLISON—The decision making role, or even the advice giving role, of the
Australian Heritage Commission has been removed in this bill. Is that just because it will sit
in this module that comes along later?
   Dr Marsden—That is a consequential part of the bill.
   Mr Marshall—Apart from the specific provision that the minister is exempted from the
requirements of the legislation—the Australian Heritage Commission Act.
   Senator ALLISON—Did that act require the minister to seek advice?
   Mr Marshall—Yes. But, more significantly, there are the provisions under section 30 that
the minister shall not take any action that adversely affects the national estate unless there are
no feasible and prudent alternatives. So I regard that as being a strong conservation obligation
in the legislation for all Commonwealth agencies, including the minister. That is being
removed by this legislation.
   Senator ALLISON—I do not see it anywhere in the submission, but as I understand it the
measure whereby advice from the Heritage Commission must be sought prior to any
international investment in development which might affect—
   Dr Marsden—That is part of section 30 requirements too. What is unclear, however—it
is a concern of ours and we have mentioned this in our submission—is that even that section
30 provision may not apply if a Commonwealth agency is privatised or corporatised or sold.
That is not addressed under section 30, nor is it addressed in this bill.
   Senator ALLISON—What is the effect of that?
   Dr Marsden—It is a little unclear. With Telstra there is an interim provision that at the
moment, under a special provision, Telstra does have to refer to the Australian Heritage
Commission. The private telecommunications bodies do not have to, although they have been
doing so in most instances. It is a very grey area at the moment; we are in a state of flux
where that is happening across the board with Commonwealth agencies. Another good example
of that is when Commonwealth property is sold; we have a great concern about Defence
properties in the whole of southern Australia. Once that has passed out of Commonwealth
hands, the sorts of controls, if any, that will be over those properties are very unclear.
   Mr Marshall—With regard to foreign investment, irrespective of the removal of the
minister’s responsibility under the Heritage Commission Act, section 524 actually excludes
government authorisations under the Foreign Acquisitions and Takeovers Act from application
of the bill. So irrespective of the Heritage Commission implications, those government
authorisations, it would seem, are being removed from the scope of this legislation.
   Senator ALLISON—Dr Jones, I must say that I am having difficulty understanding how
you can say that this bill is worth supporting, nonetheless.
   Dr Jones—There are good bits of it. But only you can make the judgment of whether,
overall, it is worth sending it back to the drawing board.
   CHAIR—It does systemise, it defines things more clearly and it brings the Commonwealth
into the process earlier, so it does have some very good features. It perhaps needs a little bit
of finetuning in various ways.

Thursday, 4 March 1999            SENATE—Legislation                           ECITA 237

 Thank you very much for appearing. I assure you that you have made some interesting points
which the committee will bear in mind in making its report. We will have a 10-minute break.
                 Proceedings suspended from 4.12 p.m. to 4.23 p.m.

ECITA 238                           SENATE—Legislation                Thursday, 4 March 1999

[4.23 p.m.]
BAMSEY, Mr Howard, Deputy Secretary, Environment Australia
BEALE, Mr Roger David, Secretary, Department of the Environment and Heritage
FLETCHER, Mr Wayne William, Director, Legislation Reform Taskforce, Department
of the Environment and Heritage
HIGGINS, Dr John William, Executive Level 1, Legislation Reform Taskforce,
Environment Australia
TUCKER, Mr Mark John, Assistant Secretary, Legislation and Environmental Data
Branch, Environment Australia
  CHAIR—Welcome. The committee prefers all evidence to be given in public, but you may
at any time request that your evidence, part of your evidence or answers to specific questions
be given in private and the committee will consider any such request. I point out however that
evidence taken in camera may be subsequently made public by order of the Senate. I now
invite you to make an opening statement, at the conclusion of which the senators will question
  Mr Beale—Thank you Mr Chairman. Australia’s environment laws have long been in need
of reform. The existing regime developed in an ad hoc fashion at a time when most states had
no significant environmental legislation and when the Commonwealth covered a very broad
sweep of our economic activity through regulations of one sort or another. It does not provide
a modern, integrated regime to protect the environment and it throws up unnecessary barriers
to business.
  Existing legislation does not furnish the Commonwealth with the powers it needs to
discharge its recognised responsibility for matters of national environmental significance. For
example there is currently no legislative protection for Ramsar wetlands of international
importance or for migratory species.
  On the other hand, the ad hoc triggers in the current legislation mean that the Common-
wealth is dragged into assessing projects that are only of state or local significance. A related
difficulty is that Commonwealth involvement can come very late in the development process,
even after work on the project has started.
  The Environment Protection and Biodiversity Conservation Bill 1998 will correct these and
other problems. It establishes a streamlined, efficient assessment and approval process focused
on matters of national environmental significance. It also establishes an integrated regime for
biodiversity conservation and management of internationally important world heritage and
Ramsar sites.
  The bill improves the current regime for assessments and approvals in a number of important
ways. These include, firstly, direct environmental triggers which will replace the current ad
hoc triggers. The triggers are based on whether there is likely to be a significant impact on
any of six matters of national environmental significance. Actions by the Commonwealth or
on Commonwealth land can also trigger the bill. It will no longer be possible for projects with
national environmental significance to escape Commonwealth assessment or approval, nor will
the Commonwealth be dragged into matters that are of only local or state significance.
  Secondly, Commonwealth assessment and approval will be triggered early, avoiding late
intervention by the Commonwealth. Thirdly, the environment minister decides whether to
approve the taking of an action which may have a significant effect on the environment. Under
the current regime the environment minister merely provides advice to an action minister and

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 239

it is up to the action minister to decide whether or not to trigger the processes that lead to the
environment minister being able to give that advice. Fourthly, the environment minister must
take the principles of ecologically sustainable development into account when making
   Fifth, duplication between the Commonwealth and the states can be reduced through bilateral
agreements. Sixth, strategic assessment can be used to assess the likely overall impact of a
policy, plan or program. This will allow early assessment of the cumulative impacts of
individual actions taken under the policy, plan or program. It also makes a more streamlined
assessment of individual actions possible.
   We are conscious that, despite the many advantages of the new regime—and most submitters
have pointed to at least some advantages in the framework—a number of criticisms have been
levelled at it. I would like to comment briefly on those. The first issue which has been raised
is the coverage of matters of national environmental significance. The bill has been criticised
because it does not address all matters of environmental significance.
   This bill is not the only Commonwealth government response to environmental problems.
Many important issues are being addressed by programs such as the Natural Heritage Trust
or the Commonwealth’s greenhouse package. Other Commonwealth legislation addresses such
matters as ozone depletion, hazardous waste and wildlife trade. This legislation focuses
specifically on those matters where a Commonwealth regulatory project approval process is
   A second criticism has been that the minister is given unfettered discretion by this bill. It
is not correct to assert that he has unfettered discretion in decision making. The bill sets out
in detail the matters that the minister must consider in making decisions. These are set out
in clauses 136 to 141. The bill also sets out a detailed process that must be followed, including
consultation with other ministers and the states, and ample opportunity for public comment.
In this way, the bill, in fact, sets out more by way of obligations and process for the minister
than has been the case in the past under similar legislation.
   The bill has been criticised because it is not clear what ‘significant impact’ means. The
explanatory memorandum indicates that the minister will issue administrative guidelines to
provide detailed guidance on whether an impact is significant. Nevertheless, the explanatory
memorandum itself contains a good deal of information about actions which are likely to have
significant impact and the content of the guidelines. For example, paragraphs 49 to 50 and
59 to 60 deal with one aspect of this, but in relation to each of the major items of NES there
are equivalent descriptions. This also is more advanced than was the case in terms of the base
legislation that we are talking about—that is, the previous legislation. By specifying matters
of national environmental significance that will trigger assessment and approval, the bill gives
a clearer picture of what is significant than in the current legislation.
   Another concern that has been raised is that the minister does not have to consider all
environmental impacts when deciding whether to approve an action, but rather only those that
have triggered his consideration, or only those matters of national environmental significance.
This is because the bill is concerned with the matters of national environmental significance
which are a Commonwealth responsibility.
   Frequently the bill brings with it powers that are restricted to, by their very nature, those
particular matters. It is only those matters that would lie within the direct competence of the
Commonwealth. It is inappropriate for the Commonwealth to consider matters of only state
or local significance in making decisions. Furthermore, to suggest that the minister is able to

ECITA 240                            SENATE—Legislation                  Thursday, 4 March 1999

do so, in some cases, would thwart his constitutional competence. In relation to Common-
wealth land, the Commonwealth marine area, nuclear actions and actions by the Common-
wealth, all environmental factors will be considered.
   Bilateral agreements is another issue that has raised some comment. Some groups have
asserted that the bill does not contain sufficient safeguards in relation to these agreements. We
disagree. There will be no lowest common denominator effect. For example, the minister can
enter into a bilateral agreement relating to listed threatened species and ecological communities
only if satisfied that the agreement, as set out in clauses 50 and 53, accords with the objects
of the bill; is not inconsistent with Australia’s obligations under the biodiversity convention,
the Apia convention or CITES; will promote the site survival and/or enhance the conservation
status of each species or community to which it relates; and is not inconsistent with any
recovery plan for the species or community of a threat abatement plan. Similar safeguards are
built in in relation to each of the other matters of NES.
   A further safeguard is that the minister may cancel or suspend all or part of a bilateral
agreement if the state is not giving effect to it, or if the state is giving effect to the agreement
in a manner that does not accord with the objects of the bill. That is set out in clause 59.
   Section 99 of the Constitution more broadly would prohibit the Commonwealth from giving
preference to one state over any other state by signing a bilateral agreement of patently
different standards. Bilateral agreements will include provisions for auditing and monitoring
   Some groups have also raised concerns about the provision for strategic assessment. They
have asserted that strategic assessments can be used to exempt projects from the main
assessment and approval requirements of the bill. That is not true. Some activities may have
significant cumulative impacts on the environment. However, assessing individual activities
will not address this cumulative impact. Strategic assessment allows these cumulative impacts
to be assessed comprehensively. The minister may use the results of the strategic assessment
to decide upon a more efficient approach for assessing individual actions. However, individual
actions taken under a plan, policy or program will still require assessment and approval. A
strategic assessment may be taken into account when the minister makes a declaration or a
bilateral agreement. The safeguards built into bilateral agreements and declarations will then
apply to approvals under the plan, policy or program.
   Under conservation agreements, areas are managed in an agreed manner to enhance
conservation of biodiversity and the Commonwealth may provide financial or other assistance.
The conservation agreement may specify actions that are exempt from Commonwealth
environmental assessment and approval. There are strict safeguards in place for conservation
agreements. The minister can only enter into a conservation agreement if satisfied that there
will be a net benefit to the conservation of biodiversity and the agreement is not inconsistent
with a recovery plan, threat abatement plan or wildlife conservation plan. In addition, the
primary purpose of a conservation agreement must be to enhance the conservation of
biodiversity. An agreement with the primary purpose of facilitating development, for example,
would not be a conservation agreement. These provisions have been included to help voluntary
actions towards conservation of our biodiversity. More broadly, the bill provides a substantially
improved legal framework for the conservation and sustainable use of Australia’s biodiversity
to complement the programs under the Natural Heritage Trust.
   Some of the features of the bill, which will improve Australia’s capacity to protect its
biodiversity, include enhancing protection for threatened species through improvements to the

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 241

listing process; providing for the recognition of vulnerable ecological communities and
conservation dependent species and the application of specialised criteria to assess the
conservation status of marine biota; providing that regulations may be made for the control
of access to biological resources in Commonwealth areas; providing for the improved
management of Commonwealth reserves, including through the application of the IUCN
protected areas management guidelines; removing an existing impediment to the creation of
marine reserves; improving protection for world heritage properties; for the first time providing
legislative protection for Ramsar wetlands and for migratory species; recognising and
promoting improved management for biosphere reserves; promoting bioregional planning; and,
providing for increased recognition of the importance, identification and monitoring of
components of biodiversity.
   The bill also provides for the formal establishment of the Australian whale sanctuary. The
establishment of this sanctuary complements Australia’s efforts at the international level to
secure, through the establishment of a truly global sanctuary, a permanent international ban
on commercial whaling.
   With respect to heritage issues, some submitters have argued that this bill implies that the
Commonwealth is only concerned with world heritage—some 13, 14, 15 places of outstanding
international value—and that it is not concerned with other elements of heritage. That is not
so. In fact, there is an agreement to pursue a national heritage places strategy. It is the
minister’s intention, when that strategy has been further negotiated with the states and is
subject to further community consultation, that the appropriate additional legislative action
would be taken.
   It has also been argued by some submitters that the effect of this bill is to, in some
substantial way, reduce the application of section 30 of the Australian Heritage Commission
Act during the period while that separate heritage legislation is being developed. This is not
so. The bill leaves in place the existing obligations of all Commonwealth ministers under
section 30 of the act. For example, should the defence minister take an action in relation to
a property that is listed on the act, he must, under section 30, seek all prudent and feasible
alternatives to avoid damage and seek the advice of the Australian Heritage Commission;
similarly, if there is a foreign investment decision in the broad.
   What is different, however, is that this act excludes the decisions made under the act which
are a new class of decisions that have never existed before from section 30 of the Australian
Heritage Commission Act. For example, if the minister makes a decision under the world
heritage provisions or the endangered species provisions, then the matters to which he has to
have regard, are those set out in this bill.
   In conclusion, I would like to submit that the Environment Protection and Biodiversity
Conservation Bill 1998 is a major reform of Commonwealth environmental legislation and
will greatly enhance the management and protection of the environment. It substantially defines
and clarifies the Commonwealth’s role in environmental issues and provides greater certainty
to all stakeholders. The department appreciates the opportunity to give evidence at today’s
hearing. We will do our best to assist the committee in consideration of the bill.
   CHAIR—Thank you, Mr Beale. We envisage this session with the department as an
opportunity to ask questions about some problem areas and, when doing so, to put a bit of
system into it under various headings. I have a list of headings which we might work our way
through. We may not cover all the headings, but at least it can be said that we have tried to
take a fairly comprehensive approach.

ECITA 242                            SENATE—Legislation                 Thursday, 4 March 1999

   First of all, access to biological resources. There has been a lot of concern expressed by both
various people in the hearings and in a general way from the community about genetic
resources and the fact that some people feel they are not adequately covered in the bill. Would
you like to comment on that? There are a wide number of biogenetic issues that are now
important, from flora to fauna and the use of genetic materials to produce things like new
pharmacological products and so on. There has been recognition in recent years of the
scientific practice of bioprospecting being used by companies and individuals to systematically
identify plants and animals with potential commercial value and applications, such as
pharmaceuticals, industrial chemicals, plant and animal breeding and cosmetics. Would you
like to comment on how well the bill covers those sorts of areas of genetic resources?
   Mr Beale—I will have a very quick go at this, but then ask my colleagues on the task force
who are far more across the detail to answer. First of all, there is talk about access to
biological resources in Commonwealth areas. To that extent it complements regimes that would
be developed by the states in relation to state areas. There are ongoing consultations in relation
to the development of that approach.
   The aim of the subsection is to ensure that access to these resources can be provided in a
way that is equitable; that, if necessary, access is excluded; and to provide the terms and
conditions under which access may be provided. These will be spelt out in more detail in the
drafting of the regulations of the bill. But the objective is to provide a framework that begins
to regulate an area which, in the past, has been very much catch as catch can, but again
emphasising that this relates only to Commonwealth lands. I ask Mr Fletcher or Dr Higgins
whether they would like to elaborate on that.
   Mr Fletcher—I think the bill itself gives a fairly good idea—in clause 301(2)—of the sorts
of issues that will be covered by the regulations. The bill, certainly in terms of Commonwealth
areas, would be looking to put into effect the obligations that flow from the Convention on
Biological Diversity, so many of the relevant issues that would be covered are spelt out in that
convention. As Mr Beale said, many states and territories have already got quite extensive
regimes in place to look after their own lands and waters. Western Australia is a very good
example; it has got a very tight control over access to generic resources. It is able to enter into
agreements in relation to cost sharing and benefit sharing, and certainly to enter into contracts
with pharmaceutical companies in other countries to develop those resources.
   CHAIR—Thank you very much. Is the Commonwealth still developing a national approach
to this?
   Mr Beale—That is right, jointly with the states. It is a sort of novel and quite complex area.
   CHAIR—But the Commonwealth is aware of it and is seeking to deal with it?
   Mr Beale—That is right, and this provides a framework within which we can move. But
it would be too early for us to specify what the details of those regulations would actually be,
although I think any of us could list the sorts of issues that are likely to be considered.
   CHAIR—So it will be really spelt out in regulations?
   Mr Beale—In the regulations.
   Senator ALLISON—Mr Beale, why should we consider this legislation before the
regulations are available?
   Mr Beale—Senator, it is by no means unusual to consider legislation in which objectives
are made clear and powers are provided, and where regulations are developed at a subsequent

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 243

level. Of course, both houses of the parliament have the opportunity to disallow those
   Senator ALLISON—But Mr Beale, you have seen evidence that has been brought to this
committee by every—I think it is no exaggeration to say ‘every’—submitter. They say that
there is too much not in this bill that relies upon bilateral agreements—we do not even have
a framework for those—and on regulations. The advice we have had from every single body
that has come before the committee is that this bill should not be dealt with until we see that.
   Mr Beale—Again, Senator, I would simply say that if you look at the great sweep of
Commonwealth legislation, the aim of the fundamental legislative instrument is to set
objectives and describe processes and then to allow for the proper development of subordinate
legislation which, in turn, is subject to the normal parliamentary checks and balances.
   As an illustration, some parties might have argued that the legislation should not be passed
until all bilateral agreements have been reached with all states. Were you to take that approach,
it would be quite clear that the passage of this legislation would itself be hostage to the
formation of those agreements. That does not seem to be a firm basis on which to set out the
Commonwealth’s responsibilities in this area.
   Senator ALLISON—Having said that this is an appropriate format, it is perhaps not as
logical as I first thought and I would like to go back to your opening remarks. Mr Beale, you
said that this bill will deal with the unnecessary barriers to business. Can you give the
committee some examples of those unnecessary barriers?
   Mr Beale—A number of those arise from uncertainty about Commonwealth involvement
or engagement in approval processes. An example could be a state infrastructure development
that is of purely local or urban scale concern. At the last minute in that development—it might
have gone through several years of assessment and development at the state level—it becomes
apparent that the proponent will require an injection of funds from a foreign source.
   The Foreign Investment Review Board is approached for an approval of that investment.
The Foreign Investment Review Board, being meticulous in regard to its obligations under
the Environment Protection (Impact of Proposals) Act, triggers that act and indicates to the
minister that it believes that this is a project that could have a significant—albeit local—impact
on the environment, because the EPIP act does not distinguish in that way. The minister then
has to face the decision as to whether to become involved in terms of triggering a
Commonwealth assessment of the project. If he feels that it is a matter of environmental
significance, albeit only local, he is likely to have to trigger a Commonwealth review of the
decision. That sort of uncertainty very late—
   Senator ALLISON—You said ‘barrier’, Mr Beale, not ‘uncertainty’. I am asking for an
example. That was not an example. What are some examples of the unnecessary barriers that
have been faced by business so far?
   Mr Beale—I think uncertainty is a huge barrier to investment.
   Senator ALLISON—Can you give me an example?
   Mr Beale—It is very hard to give you an example of investments that have not proceeded
because of a perceived uncertainty about Commonwealth involvement, but there are certainly
examples of great uncertainty as to when and if the Commonwealth would become involved
in particular projects. I can think of some major road projects where the state has been
conducting assessments for many years and Commonwealth involvement has been triggered
at the last minute.

ECITA 244                           SENATE—Legislation                Thursday, 4 March 1999

   Senator ALLISON—Was it unnecessary?
   Mr Beale—It was certainly not unnecessary in terms of—
   Senator ALLISON—I do not understand what you are saying.
   Mr Beale—Senator, it is not unnecessary in terms of the provisions of the EPIP Act. Was
it necessary in terms of matters of national environmental significance? Was this a decision
that balanced at the national scale rather than at the local and regional scale? On that basis,
it would have been unnecessary. It added a cost and an uncertainty and a complication to the
process that was not necessary.
   Senator ALLISON—One example that you attempted to give earlier was that the Heritage
Commission might advise the minister of the need for an impact assessment in the case of
export. Did you not say a little earlier that nothing changes in that respect?
   Mr Beale—With respect to the Heritage Commission, in a typical circumstance—for
example, a decision by a minister not being a decision under this bill to carry out an act that
could impact on a place on the Register of the National Estate—those provisions would
continue. For example, the Minister for Defence decides that there is a requirement to sell a
defence site, or to demolish a building. That site is on the Register of the National Estate. His
obligation to attempt to preserve—unless there are no prudent or feasible alternatives—those
national estate values will continue.
   Senator ALLISON—What about sites that are not in the Commonwealth domain?
   Mr Beale—It would depend whether there were a Commonwealth action in relation to those
sites. If there were and it was not an action by the environment minister under this bill, the
relevant Commonwealth minister or the relevant Commonwealth authority would continue to
be subject to the provisions of section 30 of the Australian Heritage Commission Act.
   Senator ALLISON—What stage are we at with the drafting of the regulations?
   Mr Beale—You understand that the legislative task force has been very heavily engaged
on the production of this bill itself and on the associated consultations. I am not sure that it
has reached any position of commencing drafting.
   Mr Tucker—There has been no drafting of regulations.
   Senator ALLISON—Regulations have not begun being drafted?
   Mr Beale—No.
   Senator ALLISON—So what is the time line?
   Mr Tucker—I must admit that we have not given much thought to it. As Mr Beale has said,
we are trying to make sure that we do everything that is required to assist the minister in
getting the bill ready for passage. We know that some regulations have to be done. Certainly
those that have to be done before the bill can meaningfully come into effect, we will have to
do in the time frame that is set for—
   Senator ALLISON—Which are those? Is there a time line for which regulations are
required first and a program for when to do them?
   Dr Higgins—We have identified the regulations which need to be in place in order for the
bill to operate effectively. Those would obviously need to have priority when the time came
to draft the regulations.
   Senator ALLISON—It is possible to get a list of those, the prioritised list?

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 245

  Mr Beale—With the minister’s agreement, I think that would be appropriate. We will seek
the minister’s agreement: that is a positive way of putting it, Senator.
  Senator ALLISON—Can you provide a time frame for them? Can you identify those that
are necessary to put the bill into effect?
  Dr Higgins—I am not sure that I understand the question.
  Senator ALLISON—You said that there were some that you had identified that would be
needed to put the bill into effect; presumably, there are others that are not. I am just asking
you to explain what they are and perhaps provide us with a list of when you anticipate them
being done.
  Mr Tucker—An example would be that, at the moment, the bill has a six-month period
before it comes into effect. The regulations to enable us to agree to bilateral agreements in
that time, we would have to obviously pursue so that the bill could operate. In terms of a
comprehensive listing of all the regulations that have to be done and specific dates on when
they would have to be done, we do not have that. We have not developed that.
  Senator ALLISON—But you anticipate the release of the regulations to be a staged process,
do you?
  Mr Tucker—I suspect that is the way it will go, yes.
  Mr Beale—That is not a firm policy decision, but in a practical sense it may move through
that way. Put simply, it is a matter of some months rather than some weeks that one is talking
about in terms of the availability of the regulations. Is that correct, Mr Tucker?
  Mr Tucker—That is right. We would have to put together drafting instructions, have
material drafted, and that does not happen overnight.
  Senator ALLISON—To what extent does the legislation have to be finalised—that is,
through the parliament—to inform you about the regulations?
  Mr Beale—Obviously, before you draft regulations, it is extremely desirable to have a firm
view of what legislative heads of power and obligations you are drafting those regulations to
complement. I would have thought that this would be something that is extremely difficult
to parallel track, although one might have a general policy idea of the sorts of regulations that
would complement the provisions of the bill.
  Senator ALLISON—Are you expecting a lot of government generated changes to the bill?
Are there amendments afoot?
  Mr Beale—I do not think it would be appropriate for me to speculate as to the amount. But
I think the minister has indicated that he certainly has not excluded the possibility of
government initiated changes to the bill.
  Senator ALLISON—Will the committee have any idea of what they are, even in the most
general sense, before it does its report?
  Mr Beale—I do not think it is the minister’s intention, but I could ask him if we should
make a further submission to the committee describing his proposed amendments to the bill.
Mr Bamsey, have you discussed that with him?
  Mr Bamsey—No. We have not discussed such a step with him.
  Senator ALLISON—A number of submitters and witnesses have said that they have had
further discussions with the minister and that they have been given a warm response to some
of the things they have put forward. A lot have come to the committee and said, ‘Here are
anomalies. We think this is unintended. We’ve been to the minister and there’s some sort of

ECITA 246                           SENATE—Legislation                Thursday, 4 March 1999

suggestion that some of these things will be picked up.’ It would be very useful to the
committee to actually know where the government is going to move and where it is not.
  Mr Beale—I understand that, Senator. We will certainly discuss your wish to be informed
with the minister and your view that that would be helpful.
  Senator ALLISON—The explanatory memorandum describes the main parties as the
Commonwealth, states and territories and industry. Why was the number of main parties
confined to those bodies and what role does the conservation movement or the community
at large play in this legislation? Why was it so narrowly defined?
  Mr Beale—I will ask my colleagues to complement this: that is defined very much in terms
of the regulatory nature of this bill.
  Senator ALLISON—But we have got industry in there.
  Mr Beale—It is a bill that affects the rights of, and imposes obligations on, a number of
parties. It affects rights in the sense of providing sanctions and obligations and duties and
penalties with respect to parties. The main parties in relation to which it provides those
obligations, duties, sanctions and powers are the Commonwealth, states and territories and
industry. It is to the extent, for example, that industry faces very major fines if it fails to
properly apply for and secure permits or approvals to conduct activities that might impact on
the various matters of national environmental significance set out in the bill. That is the basis
of the definition of the parties. It is not suggesting that there are not others who are very
interested in this bill. We would expect the whole community to be interested in the bill.
  Senator ALLISON—It is unfortunately a pattern which seems to have been repeated
through consultation and through other measures and procedures in the bill. It seems to be
problematic that those are the only parties who are identified as the main parties.
  Mr Bamsey—To add to Mr Beale’s comments, in relation to consultation, which you have
just mentioned, the main affected parties are listed. They are government, industry and
conservation organisations.
  Senator ALLISON—Where are they listed?
  Mr Bamsey—Conservation organisations are listed on page 17 of the explanatory
  Senator ALLISON—But not listed as main parties?
  Mr Bamsey—It is the main affected parties and their views. They are listed as one of the
three sets of affected parties under the heading ‘Consultation’.
  Senator ALLISON—On the matter of consultation, that has also been a very consistent
complaint by those who have made submissions to the committee, including the industry
representative bodies, who said that there was a lack of consultation with the legislation. We
know about the discussion paper, but people have said that the government has appeared not
to have taken on board their views.
  In the explanatory memorandum there are references to the need for introducing this
legislation quickly to provide certainty. It has actually not been a quick process; it has been
quite a long time since the discussion paper came out. How do you explain the length of time
available and the desired action on your part for it to happen quickly, but the failure of
meaningful consultation to have been achieved?
  Mr Beale—The very proper processes of democracy intervened in the parliamentary passage
of this bill. Between the time when the discussion paper was produced and when the bill was

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 247

introduced, in fact, there was quite a constrained period of time—it was quite limited. The
bill was a very major task for my staff and for the parliamentary draftsmen. Very soon after
the bill was introduced to the parliament we rose for the election last year. The minister always
made it very clear that he would pursue consultations in parallel with the parliamentary
consideration of the bill. I think you commented earlier on some of the pleased comments from
those with whom he has been since consulting in relation to a response on some of the issues
that they have raised.
   Senator ALLISON—Who are those parties, Mr Beale?
   Mr Beale—Senator, you referred to the parties. I am not quite sure which ones made those
comments to you.
   Senator ALLISON—I refer you to the submissions, each of which goes to this question.
But if the minister has had other parties come and say that the consultation has been terrific,
it would be useful to know who they were.
   Mr Beale—I said that there have been consultations over the last several weeks in this new
year. The whole timing of this has, in a sense, been compressed and complicated by the
election period.
   Senator ALLISON—So we had an election instead of a consultation—is that what
   Mr Beale—There was not too much consultation we could do while the election was
   Senator ALLISON—So you do acknowledge that there was a problem with consultation?
   Mr Beale—We are certainly seeking views and have been actively meeting with people in
parallel with this process. Of course, we are taking a great interest in what is being said to
this committee and are attempting to understand the views of your submitters and the views
of the committee as at least evidenced by the areas of interest that you have.
   Senator ALLISON—So you have read the submissions and the transcripts?
   Mr Beale—I have not personally read all of them, but I am sure my colleagues have read
all of the major submissions. Indeed, I thought that in my opening remarks I tried to point to
some of the issues that I saw as recurring themes in some of those submissions.
   Senator ALLISON—Does the department actually have any guidelines, protocols, or a
standard format, by which it adopts consultation processes?
   Mr Beale—We have a regular process of consultation—
   Senator ALLISON—Yes, but are there guidelines? What guides you in deciding how to
do a consultation?
   Mr Beale—I can answer that in two ways. There are some areas where there are quite
specific guidelines on consultation. For example, under the Environmental Procedures (Impact
of Proposals) Act. In a more general sense, we have consultations on a number of occasions
during the year with the National Environment Consultative Forum. And, of course, we have
an open door in terms of people wishing to provide their views to us on issues. But there is
no formal protocol for consultation in the broad. It is topic specific.
   Senator ALLISON—Let us take the National Farmers Federation this morning that said
they had put in a submission based on the discussion paper. They made a submission here to
the committee—no doubt, you have a copy of that as well—but they have not heard anything
from the government about the suggestions they made and most of them were not picked up

ECITA 248                          SENATE—Legislation               Thursday, 4 March 1999

in the bill. Let us take that as an example. What sort of formal or informal discussions were
held with the NFF?
  Mr Fletcher—There were certainly discussions held during and following the consultation
period on the consultation paper with key—
  Senator ALLISON—After the discussion paper?
  Mr Fletcher—Yes, with key industry.
  Senator ALLISON—There was not much in the discussion paper really. It is only after the
bill came out that people knew what they were dealing with, I would have thought.
  Mr Fletcher—Yes, but following on from that, there were discussions with key conservation
groups and industry representatives.
  Senator ALLISON—With the NFF?
  Mr Fletcher—I cannot recall whether the NFF was involved. I could check on it.
  Mr Beale—My recollection is that the NFF have had some involvement. But more
importantly, the minister has not responded to all of the submissions that have been made
because he has indicated that he wants to keep his mind open and consider all of the views
that are put to him over the next several weeks in trying to make up his mind on what
amendments, if any, the government wishes to make to the bill.
  Senator ALLISON—So there is more consultation to take place between now and when
the bill is introduced—is that right?
  Mr Beale—There have certainly been discussions occurring on a progressive basis.
  Mr Tucker—Just as a specific instance, at officer level we had the ACF in speaking to us
a couple of days ago. I have had the Business Council talk to me on the telephone. We have
scheduled for Tuesday 9th, next week, a meeting in the morning with business groups—they
are going to bring some people up to talk to us about their particular issues with the content
of the bill—and we have got the conservation groups in the afternoon and they have nominated
about 10 people that they want to bring up to talk through the bill.
  We are jointly working through what the agenda may be and, at the end of the day, we want
to have a clear understanding, certainly from those two main bodies, of what their specific
issues are and, if the government was to take those on board, what would you actually have
to do to the legislation to achieve those.
  Mr Beale—Let me just add that the minister, of course, is continuing consultations with
state ministers. We met with the states about a week ago in Sydney—a very positive meeting—
and that process is continuing as well. And the minister yesterday met with the Kakadu Board
of Management, as well, to discuss their concerns with the bill. I am not sure whether he was
in Uluru as well. He certainly had discussions with the Uluru board and the Central Land
Council, I think, last December, or it might have been January—I am not sure, but it was
earlier in the period.
  Senator ALLISON—It sounds like we are a fair way off actually having the legislation in
the Senate.
  Mr Beale—We have worked industriously.
  Senator ALLISON—I am sure you have, Mr Beale.
  Mr Beale—We will be as quick as the minister requires us to be.

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 249

   Mr Fletcher—I recall that there were discussions involving representatives of the NFF and
officials in the minister’s office in relation to the bill.
   Senator ALLISON—And when was that?
   Mr Fletcher—I cannot recall the exact date.
   Senator ALLISON—You might look at the Hansard, but it is certainly my recollection of
what was said this morning.
   Mr Beale—As I indicated earlier, my recollection is that it was prior to Christmas but I
could not be precise about that.
   Senator ALLISON—A number of submissions suggested that round table discussions would
be quite useful to work this through with a number of stakeholders around a table. It sounds
like you are doing that with industry but—
   Mr Beale—Also, conservation groups.
   Senator ALLISON—But not together?
   Mr Tucker—No, not together. They have actually expressed interest that they may talk
amongst themselves on that particular day, and come back to us with views which we would
be happy to receive.
   Senator ALLISON—I must say that is looking hopeful then in terms of consultation. I
would like to ask about bilaterals. It has been very difficult for the committee to come to terms
with bilaterals. We are not altogether sure what they are going to do. We do not have a
framework for them and we do not have any examples. We are told the RFA process is like
one, but not really. Has the department yet developed a framework for bilaterals?
   Mr Bamsey—We have certainly started talking to the states about bilaterals. We have been
working from the framework in the bill itself and we are using that framework to devise the
standards that would apply in the bilaterals. It is true to say that we are at the beginning of
the process of negotiating bilaterals and, to some extent, too, just as with the matters discussed
earlier, the content of bilaterals will, of course, have to comply with the act as it is adopted.
We have begun discussions and I think we understand the processes, at least from our
perspective, that we will need to follow. We understand the need to develop bilaterals to
demonstrate that the bill will work as it is designed to do. We feel confident that we are on
the road to doing that.
   Senator ALLISON—How will they relate to existing processes? Will they be similar at
all to anything we can point to?
   Mr Bamsey—Our view is that the RFAs do not provide a model for bilaterals. They are
very different in a number of respects.
   Senator ALLISON—Could you spell that out?
   Mr Bamsey—Yes. I have some notes which I will refer to.
   Senator ALLISON—Is it something that you can just pass to the committee?
   Mr Beale—We could probably give you some notes on that.
   Mr Bamsey—Yes. I will run quickly through the points to see if you have further questions.
RFAs do not provide for the up-front accreditation of state processes, environmental assessment
and approval processes which the bill does. RFAs are developed after there has been a
comprehensive assessment within the region concerned of environment and heritage values.
Those assessments are not necessary under the bill, for obvious reasons. RFAs may not meet

ECITA 250                           SENATE—Legislation                 Thursday, 4 March 1999

all of the prerequisites for a bilateral agreement. You are familiar with what those are and,
of course, RFAs have not been developed under the framework of the bill or, indeed, under
any unified legislative framework. RFAs have a life of 20 years and bilateral agreements have
a life of a maximum of five years.
   Mr Beale—And they are subject to scrutiny by the Commonwealth minister, and termination
in the event that the objects are not being met. I will give two examples that are bilateral. If
one thought of a world heritage area and a management plan associated with that area, but
authorised classes of action and excluded other classes of action—for example, those elements
of the Great Barrier Reef where a permit system might permit an action or a zonal plan—
   Senator ALLISON—This is an activity as well as an action?
   Mr Beale—Yes, it is an activity action but it could be—
   Senator ALLISON—Prawn fishing.
   Mr Beale—Yes, or it could be an entitlement to take tourists out to a part of the reef. The
sorts of activities that are permitted then by that plan of management of the world heritage
area would be activities authorised under a bilateral. In the case of the Great Barrier Reef, of
course, we are talking about Commonwealth waters in any case, but it is not a bad illustration
of what one might think of as a bilateral in that sort of area.
   Another area is a bilateral that relates to a process. For example, there could be a bilateral
with a state or all the states that relates to an assessment process that says, ‘This is how
environment impact assessment will be done. These are the minimum standards that will be
required for consultation with the public: notification, consultation on guidelines for—’
   Senator ALLISON—How is that sort of thing dealt with presently? What are the processes
that deal with that?
   Mr Beale—That is currently dealt with under an agreement pursuant to the
Intergovernmental Agreement on the Environment, the IGAE, which is an agreement signed
in 1992. But it is simply a working matter between governments. It has never had formal
legislative recognition in the Commonwealth so the Commonwealth has never been able to
firmly accredit, if you like, a state process under its own legislation. It has simply been
something that it could take into account in making its own separate decisions.
   Mr Tucker—This bill gives us a more systematic response, to actually have a system
accredited rather than necessarily go through it project by project. The bill provides for a suite
of bilateral agreements that you can have. The two bilateral agreements are, firstly, for
management plans and, secondly, for assessment processes.
   Mr Beale—Another management plan might be Ramsar areas where we have never before
had a legislative ability to encourage the development of a management plan for Ramsar areas.
It would probably not be unfair to say that many of them have not had effective management
plans that describe what sorts of things you can do and what sorts of things you cannot do,
so by allowing the possibility or the scope for a bilateral agreement in relation to a
management plan, you really encourage the states and the Commonwealth to work together
to create a plan to protect those places where such plans have not existed in the past.
   Senator ALLISON—So there might be hundreds of management plans? I had a feeling this
would be a fairly small number.
   Mr Beale—It is not impossible. I think Mr Bamsey, who has been closer to the discussions
with the states, might want to elaborate on this. Whether it will be more thematic than that,
I do not know, but certainly for each of the world heritage areas, I would have thought that

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 251

one would want a quite site specific management plan. Mr Bamsey, would you like to add
   Mr Bamsey—I do not really have too much to add to that.
   Mr Tucker—For example, let us take bilateral agreements on threatened and endangered
species. This is looking down the track a bit, but I think our view would be to have a bilateral
agreement with the states to cover the management of threatened and endangered species. As
a consequence of that, there would be recovery plans developed for each individual species—
but technically, they may also be called bilateral agreements, I suppose.
   Mr Beale—There might be schedules to that agreement.
   Mr Tucker—We already have agreed recovery plans with states for some species, anyway,
so we have examples of where we currently do that.
   Mr Bamsey—A typical process of a bilateral agreement might be to identify it. A state
might identify a process it already has in place which deals with the issues that are a matter
of national significance. They might also be a matter of local significance.
   Senator ALLISON—Would a national environment protection measure be one of those?
Will it be like that or will—
   Mr Beale—No. The national environment protection measure establishes an equal and joint
responsibility to implement that measure. An equal but separate responsibility is a better way
of putting it. By creating a national environment protection measure, the Commonwealth in
its sphere and the states separately in each of their spheres are individually obligated to put
the measure in place and to have the appropriate framework for making sure that its objects
are met.
   This is a little different in that what we are doing here is saying to a state, ‘We are trying
to encourage you to develop a framework that ensures that these matters of national
environmental significance will be protected. If you develop such a framework and it meets
the objects of this act subject to monitoring, audit and so on, we are prepared to accredit that
process.’ So we are giving the state an incentive to examine its processes and strengthen them
to the point where they cover adequately and properly the objects of the bill. In that way we
think we can leave a much more actioned and seamless consideration, if you like, of these
matters of national environmental significance than we would were we not to allow for such
an approach and simply insisted on the Commonwealth doing it all quite separately in its own
   Senator ALLISON—So at what point is the bilateral agreement agreed and signed off on?
Is it after the states have demonstrated how they will achieve it and shown what processes
they will put in place?
   Mr Beale—That would be so. The minister would have to be satisfied under the provisions
of the act that the bilateral agreement would serve the objects of the bill and, in particular,
would meet whatever the specific set of obligations were there in relation to that bilateral
agreement. Only then could he enter into the agreement and, as I said earlier, both politically
and constitutionally it would be inappropriate for him, for example, to give one state a free
ride or an easy break compared with other states. So there will be a considerable interest from
state to state in making sure that those same high standards are applied.
   Senator ALLISON—Would the legislation still work without reference to bilaterals?
   Mr Beale—Let me answer that in two ways. Constitutionally, the Commonwealth could
simply say, ‘We are going to have a set of direct powers and we will give all the approvals.’

ECITA 252                           SENATE—Legislation                Thursday, 4 March 1999

In an administrative sense, that would require the establishment of a separate planning and
project approval process at the Commonwealth level to deal with all of those processes, and
it would require that industry and conservation groups deal separately with two independent
decision making processes. All of that would be extremely costly and potentially duplicative.
  This is not unlike the situation under the Environment Protection Authority in the United
States. Hence, where you can satisfy yourself that a state process will meet your objective,
make sure that it does, and have that concreted into a bilateral agreement, it will provide for
a smoother, more efficient, more cost effective process for all concerned.
  But the Commonwealth’s right to do it by itself, if it cannot reach a bilateral agreement,
or if the state falls down in its implementation of the bilateral agreement, has to be preserved
or the Commonwealth would be in no position to lever the improvement in state activities in
relation to NES that this bill seeks to secure.
  Senator ALLISON—So we could not write into the legislation the fundamentals of the
bilateral agreements.
  Mr Beale—In a way, the legislation does write in the fundamental objectives of the bilateral
agreement, but it also recognises that you might achieve that objective in different ways in
different places, as long as you achieve the same performance outcome, that is, that the objects
of the bill are properly met.
  Mr Bamsey—We would be using the bill as the basis for deriving the standards that will
be applied to the processes that might be accredited. So it would not be just any process; it
would be a process which would have to meet the standards which derive from the bill. For
example, in relation to public consultation at certain points, or to judicial review, those sorts
of matters deriving from the legislation would be part of the negotiation to—
  Senator ALLISON—What is that process for setting standards?
  Mr Bamsey—It would be a negotiating process with the state and it is an agreement and
we would expect that we would be negotiating with each of the states. But the precise form
of the agreement, what it actually looks like as a document, we could not say at this stage,
but the content would need to reflect the requirements of the bill or—
  Senator ALLISON—So even the process for setting the standards is something you would
negotiate at the outset—there is not a standard?
  Mr Bamsey—No, not the process for setting the standards. We would come to the states
and say—
  Mr Beale—‘These are the standards.’
  Mr Bamsey—‘These are the standards. You have an assessment process, for example, that
you would like to be accredited under the bill. Here are the standards that we would need to
accredit it.’ And then we would discuss whether the process needed any amendment, and the
states would presumably say on some occasions that under their legislation they did not need
to require something we were asking for, and we would need to talk about that. So there would
be the usual process of negotiation, and it would only be when both sides were satisfied that
they were getting what they wanted and needed from it that you would get an agreement.
  Senator ALLISON—A lot of concern was expressed about the secret nature of that
negotiation about standards. There is no role for the public or for any other parties beyond
the Commonwealth and the states?

Thursday, 4 March 1999               SENATE—Legislation                                ECITA 253

   Mr Beale—Certainly the bilateral agreement will be published at the end of that process,
but there is nothing in the bill that establishes a particular process of consultation with the
public. But on the other hand, of course the bill does not preclude it either. As an example,
if you were to approach a world heritage management plan and consider its appropriateness
for accreditation, the processes under which management plans are developed typically require
a consultation process.
   Senator ALLISON—So where is that requirement for a consultation process spelled out
either in the bill or in the agreement?
   Mr Beale—It is not spelled out in the bill and I think that governments would be of the
view that they have, at the end of the day, the obligation to reach an agreement or not reach
an agreement in their own right. In some of these areas, quite clearly—and a world heritage
management plan is a typical example—the very process itself often involves a consultation
process with the community and there is presumably nothing to stop ministers, should they
wish, consulting with parties who are interested in a particular bilateral. I would imagine that
ministers will no doubt be approached, both at the state and at the Commonwealth levels, in
relation to those issues. But it is not something that we feel is necessary to spell out in the
bill in some rigid sort of legislative way.
   Senator ALLISON—But you go to the states with the standards already decided.
   Mr Beale—We have the objects of the bill. We have the provisions of the legislation. We
will have guidance, over time, from the regulatory framework in terms of what we need to
achieve. For example, I talked earlier about the endangered species and what would be
necessary to enter into a bilateral agreement; first of all, that it accords with the objects of the
bill which include—
   Senator ALLISON—You said a bit earlier you would go to the states with the standards
and then you would negotiate about the process. My question was about the standards. What
point are we at with establishing standards in particular areas? Is that what you said?
   Mr Beale—In a sense. That obviously varies. In relation to a world heritage area
management plan, there is a set of obligations under the treaty and under the legislation to
protect, conserve and present the area that provides a framework within which you operate.
But the particular standards in relation to a particular world heritage area will depend upon
the values that are to be protected. Is it a national park? Is it an area where multiple use is
consistent with the conservation of those world heritage values? That could be quite specific,
but the common thread to all of it is that obligation to protect, conserve and present.
   Senator ALLISON—Are we down the track with developing standards for anything yet?
   Mr Beale—Perhaps if I can just add, with something like impact assessment, the standards
might relate much more to identifying minimal obligations in relation to consultation, review,
transparency of process, and so on. Some of those issues are described in the existing
intergovernmental agreement on impact assessment. We would need to look at those and assess
how they should be brought into concert with this bill and reflected in the bilateral agreement.
   Mr Tucker—I am not sure whether you have quite the right pitch with the standards,
though. The standards, as Mr Beale was saying, in relation to impact assessment, would be
process standards. That would be one very large element of it. For example, a consultation
period on a draft impact assessment would need to be ‘for a minimum period of’, and eight
weeks may be the standard. Another standard might be something like, where a proponent is
doing an assessment report, they would need to do a literature search and they would need

ECITA 254                          SENATE—Legislation                Thursday, 4 March 1999

to take into account all relevant information in producing the report. That is another process
standard that would have to be met.
  A lot of those are from the current experience that we have in terms of our current
assessment processes in the Commonwealth. It is something that has developed over the 20
years of the application of the EPIP Act. Those sorts of process standards are fairly well
known internally to the Commonwealth, to proponents.
  Senator ALLISON—So they are standard standards processes, in a way.
  Mr Tucker—They are standard processes that you would expect.
  Senator ALLISON—Why can’t they go in the bill?
  Mr Beale—Those processes have changed and improved very significantly over—
  Senator ALLISON—Since you wrote the bill?
  Mr Beale—No, over the life of the EPIP Act. That act has been in place for 24 years, since
1975. If we had had to amend the act on each occasion that we revisited and improved those
standards, it would have added significantly to parliamentary workload without, one could
suggest, improving the end product. We have to have a framework that allows the parliament—
I am sorry; I should not make judgments about the parliament’s interests—to set out the
fundamentals in the act that enable the areas that could be subject to change over time, where
that change does not do any violence to the objects and obligations under the act, to occur
in a more delegated way and in a more administrative way.
  Senator ALLISON—What about non-process standards? Are they being developed as well?
  Mr Beale—Some of the examples I gave you in relation to world heritage areas would be
non-process standards. They would have to uniquely relate to the plans of management for
the world heritage areas for which you wish to enter a bilateral agreement. They would have
both elements of process—that is, what sort of steps would you require to ensure that actions
were not being taken that could impact on world heritage values?—but they would also have
elements of substance—that is, what are the values that you are attempting to protect?
  Senator ALLISON—I understand that. I have asked about the status. Are we on the way
to developing any of those non-process standards yet?
  Mr Tucker—Again, we probably have some of them from our own experience with current
management plans for world heritage properties. In terms of whether we are actually doing
any work at the moment to convert what is in the bill into standards in that regard, the answer
to that is no, we are not doing that work, but we do know that there are things around which
we can draw upon and which will inform us in setting the standards when we move towards
doing so.
  Senator ALLISON—To what degree would they be standard standards?
  Mr Tucker—They will differ. If you look at the different natures of world heritage
properties, standards for managing a world heritage property that is tropical rainforest may
be very different from management of a world heritage property that is essentially desert.
  Senator ALLISON—There would be some that would be common, would there not?
  Mr Tucker—Some of it would be common, yes. The practical day-to-day standards which
you may get down to might be very different with the different environments.
  Senator ALLISON—Have we started any negotiations on bilaterals with the states?

Thursday, 4 March 1999              SENATE—Legislation                               ECITA 255

   Mr Bamsey—We have started discussions with the states. At this stage, as I said earlier,
it is still quite early in the process.
   Senator ALLISON—We have not had much response from the states to the legislation at
all. I think the Western Australian Department of Transport made a submission. That is the
problem with having you here halfway through the process: we have departments appearing
before us at some later stage. It is fair to say that some departments, some state governments,
did not make submissions.
   What have your discussions resulted in, in terms of responses to the bill? Are the states
pretty happy with the legislation as it is drafted, or are you looking at major amendments or
even minor ones to accommodate their concerns?
   Mr Beale—The concerns of the states have been raised with the minister. He has indicated
that he thinks he can address some of those concerns. Some of them might arise from
misunderstandings or from reading into the bill things that were not intended. He has
undertaken to take on board a range of those and to consider them over the days and weeks
ahead. I think it would be fair to say that the states say that the basic framework appeals to
them. They think it is important that there be some clarity about matters of national
environmental significance and that they are not objecting to the principle that the
Commonwealth use direct constitutional power.
   Senator ALLISON—You would not expect that, Mr Beale. They were part of the process
that initiated the bill, weren’t they? To what extent are they saying that the bill reflects their
understanding of the COAG agreement?
   Mr Beale—After our consultations with them in recent weeks, some misunderstandings and
uncertainties have been clarified. We have taken on board the need to look at areas where the
concerns they expressed were not ones that we anticipated, because we did not think the bill
could be read in that way or was intended to have that effect. We would see this as an ongoing
process of consideration of those views. I do not want to speak for the states, obviously, just
as they would not wish to speak for the Commonwealth. You will, no doubt, hear from state
submitters if they are concerned about the provisions of the bill.
   Senator ALLISON—We heard this morning from the fisheries group—they tell us they
were part of the COAG process—to the effect that the bill came out looking quite different
from what they thought they had agreed in that process. I wonder whether the states are of
the same view.
   Mr Beale—Which fisheries group?
   Senator ALLISON—Mr Bill Nagle of the Australian Seafood Industry Council, this
   Mr Beale—Mr Nagle is a very distinguished representative of the seafood industry, but they
were not parties to the COAG heads of government agreement. They were, no doubt,
presenting views to states and to the Commonwealth along with a whole range of other
interested parties.
   Senator ALLISON—I do not know what their access was to the COAG agreement, but they
seemed to think they had some ownership of it.
   Mr Beale—I am sure that all groups would see great advantages in the principles of the
COAG agreement. The one thing we have had agreement on around the whole range of
interests is that the principles are right. The argument is about detail.

ECITA 256                           SENATE—Legislation                Thursday, 4 March 1999

   Senator ALLISON—Has the department looked at how the Commonwealth will monitor
compliance with bilaterals?
   Mr Beale—In what?
   Senator ALLISON—What sort of changes will have to take place? Will you set up a
bilateral task force? Will it be the responsibility of Mr Bamsey’s department?
   Mr Bamsey—We are working on that. It has obviously been very much in our minds, but
we do not yet have a template that would fit. Again, it is partly an issue of sequence, but we
need to see the bilaterals to see what our obligations for monitoring will be under those. Then
we will be sure about the structures that we need to do the job.
   Senator ALLISON—When will you have some understanding of that?
   Mr Bamsey—I could not be precise about a date. I do not know whether my colleagues,
who are further down the track than I might be, have anything. Within the department we have
a group that meets very regularly about the process of the bill. That is the sort of issue that
we share views on from time to time and try to work out the detail of as the bill proceeds.
The focus at the moment, for the reasons of sequence that I mentioned earlier, is on the
process that we are engaged in and that the committee is engaged in in the parliament.
   Senator ALLISON—Is there any extra money in the budget to cope down the track? I asked
this question at estimates.
   Mr Beale—Indeed, you did. I could not improve on Senator Hill’s answer.
   Senator ALLISON—Some weeks have passed since then, Mr Beale.
   Mr Beale—I am still no better than the minister at answering that question.
   Senator ALLISON—I see. Public consultation keeps coming up again and again in terms
of the bilaterals. Have you had any further thoughts about public consultation on the content
of the bilaterals?
   Mr Beale—No further thought other than to note, as you say, that different groups have
raised that issue from time to time.
   Senator ALLISON—Are we likely to see some amendments?
   Mr Beale—I could not comment.
   Mr Bamsey—It is a matter for the minister.
   Senator ALLISON—Do you have any idea at all about the number of bilaterals that are
likely to appear? I presume the bilaterals are just that—they are bi, which means the
Commonwealth and a state. The suggestion came up this afternoon that we have some
multilateral agreements and that there be an agreement with the Commonwealth and, say,
Victoria and New South Wales, maybe even Queensland, for a Murray-Darling Basin
management issue, or something. I do not need to remind you that the environment does not
acknowledge state boundaries. Is that possible under the bill?
   Mr Beale—One of the reasons for bilateral agreements, of course, is the need to respond
to the different legislative frameworks that states have for planning an approval process,
endangered species processes, and so on. I think it would be overly ambitious for us to attempt
to negotiate one totally unified national set of planning and environmental approval legislation.
That means that we have to work with each state and relate our objective to that state’s
legislative framework.

Thursday, 4 March 1999               SENATE—Legislation                                ECITA 257

  I am not sure whether there might be some areas where a number of states are involved
which have a specific interest. I think, by its nature, that a bilateral would have two parties,
but, if you were jointly managing an activity, you would want to look for at least some
complementarity of the content.
  Senator ALLISON—If there was a bilateral that it was sensible to have between New South
Wales and Victoria, would you do two bilaterals and match them up rather than having one
  Mr Beale—Yes.
  Senator ALLISON—What if the states could see a relevance in having a local government
as party to one of these agreements? Can the legislation accommodate an agreement with
councils, too, maybe the ALGA or individual councils? Is it possible in the bill?
  Mr Beale—As I understand it, the states are the sovereign entities.
  Senator ALLISON—Yes, I understand that.
  Mr Beale—And local governments are creatures of the states and our government-to-
government agreement would be with the state. I am not sure; that is not saying that it would
necessarily preclude a state saying that, within this bilateral agreement, local government has
certain responsibilities. But the government-to-government agreement, under the legislation,
would be with the state and it would be the state’s duty then to ensure that local government
met its obligations under the state element of the bilateral agreement.
  Mr Fletcher—It could reach down to local government processes, but again through the
  Mr Beale—Yes.
  Senator ALLISON—We could be looking at a lot of bilaterals.
  Mr Beale—It is possible. Obviously, we would want the minimum efficient number of
bilaterals, but you would also want bilaterals to cover the important issues in enough of a fine
grained way to make sure you are meeting the objects of the bill.
  Senator ALLISON—In chapter 3, part 5, division 2, clauses 55(b) and 56(b) both mention
clause 99 of the Constitution. I would have thought this legislation should comply with the
Constitution anyway. Why was it necessary to make that specific provision about the
  Mr Beale—I suspect the lawyers would tell you it is not necessary and that the Constitution
will override any action taken under this bill if it fails to meet the constitutional tests. I guess
it is included specifically as a reminder to the Commonwealth and the states—the
Commonwealth, in particular—of its obligations under section 99. And I am told that there
is a technical basis depending upon the heads of power that are required to enact the
provisions. Dr Higgins might explain that.
  Dr Higgins—Yes. It is my understanding that the actions—for example, nuclear actions—
which specifically refer to section 99 of the Constitution are relying upon other different
constitutional heads of power from some of the other provisions. For example, the provisions
relating to migratory species are relying largely upon the external affairs powers in the
Constitution whereas the nuclear actions trigger relies upon things like interstate trade and
commerce and corporations power. The bill has been drafted this way to make it clear that
the bill is consistent with the Constitution, which is necessary where it is relying on those
particular powers but not where it is relying on, for example, the external affairs power.

ECITA 258                           SENATE—Legislation                Thursday, 4 March 1999

   Senator ALLISON—I am not sure I quite understand that. Can you explain it to me again?
   Mr Beale—It might be better if we got a lawyer to explain it. Would you mind if we got
some legal response?
   Senator ALLISON—That would be good.
   Mr Beale—I am certainly out of my legal depth when I am in that sort of area, and I am
not sure that we would add full value. It might be better to get you an explanation.
   Senator ALLISON—Perhaps you can ask them too whether it is envisaged that there might
be some constitutional challenge on bilaterals at some stage, given the preference to one state
over another. Is that an issue?
   Mr Beale—That is what section 99 deals with, and we will ask them if section 99 could
potentially arise with respect to bilaterals. Perhaps that is the best way of putting it.
   Senator ALLISON—So that you can tell us what sort of advice you have had on this
constitutional issue.
   Mr Beale—We will take those questions on board and get you an answer that is more
informed than any of us could give you.
   Senator ALLISON—There is the same range of questions about administrative arrangements
for the Environment Protection and Biodiversity Conservation Act. Will the department need
to reorganise itself to deal with that?
   Mr Beale—Again, I do not want to prejudge outcomes but I do not think so. We have
developed the department over the last three years around themes of biodiversity, heritage,
environment protection. Those themes have within them areas of subject matter specialisation,
and they try to link programs and legislation within that area of subject matter specialisation
and international conventions.
   I would be a bit reluctant to turn the department around to one that focused, for example,
on all assessments, all bilaterals and all enforcement activity in a functional, as distinct from
a thematic, arrangement. But they are the sorts of issues that we will think through very
carefully. My own preliminary view is that, while we will have an advisory role at the core,
I would like to see as much of the action as possible out in the various groups. But that is very
much an administrative matter.
   Senator ALLISON—Have you talked to the states about their having possibly complemen-
tary structures? Will you involve the states in this discussion about how the department will
be set up to cope with the changes in the bill?
   Mr Beale—We would not normally involve the states in telling the Commonwealth how
it might set up its administrative machinery in the organisation of the department, but we
certainly would want to talk to the states about how we best interfaced with their processes.
   The existing arrangements work pretty well with the states. For example, our biodiversity
group has a very natural set of relationships with the various state national parks and
biodiversity, conservation and land management activities, our environment protection group
has a natural relationship with the state EPAs and so on. So at the moment the department
is functioning pretty well, and I would hope that we could implement this bill without great
change to the department’s administrative structures.
   Senator ALLISON—One of the criticisms that has come to the committee has been that
the Commonwealth did not go out and attempt to reach some consistency in each state—
persuade the states to develop consistent approaches to things like environment impact

Thursday, 4 March 1999             SENATE—Legislation                             ECITA 259

assessment processes. Some states have very good processes, others hardly have them or do
not enforce them and others do not have any at all. To what degree did you attempt to get
that consistency, if not uniformity, with the states? What do you see as the key problems in
terms of process, primarily? Where are the biggest differences and where is that going to cause
problems for the Commonwealth with bilaterals?
  Mr Beale—The Commonwealth has been trying to work at getting consistency—indeed,
the states have as well—through, for example, the discussions on impact assessment pursuant
to the Intergovernmental Agreement on the Environment. There have been working groups
under the Australian and New Zealand Environment and Conservation Council—ANZECC—
that reached an agreement late last year on standards for environmental assessment. In a way,
by providing for bilateral agreements to receive particular recognition under this bill, you
provide a much greater incentive for that level of consistency, but they are still bilateral
agreements rather than multilateral agreements because you do want to recognise differences
as well.
  Senator ALLISON—Did the agreement through ANZECC pick up the review of the
environment impact assessment process that was done in around 1995? Did it take all the
recommendations of that and adopt them?
  Mr Fletcher—It was a set of guidelines related to how you should undertake environment
assessment and the sorts of issues that should be taken into account. It was not really to do
with the review of the EPIP Act.
  Senator ALLISON—What happened to the recommendations of that review? Are they in
the legislation?
  Mr Beale—I think some of them, effectively, are reflected.
  Mr Fletcher—The review of Commonwealth-state roles and responsibilities and, ultimately,
the review and reform of Commonwealth legislation, have overtaken the EPIP process.
  Senator ALLISON—I understand that, but were any of those recommendations not picked
up in the bill?
  Mr Beale—I could not be sure, Senator. It is some years since I read that report.
  Senator ALLISON—Is it possible to take that on notice and get back to us?
  Mr Beale—Yes.
  Senator ALLISON—What sort of role did industry have in that process? Did they support
all of the recommendations of that review?
  Mr Beale—Is this the 1995 review?
  Senator ALLISON—Yes.
  Mr Beale—It was certainly before I became secretary, although I was aware of it from my
position in the Department of the Prime Minister and Cabinet. I am not sure that any of my
colleagues here at the table were involved in that exercise, so, again, can we take that on
  Senator ALLISON—Yes, thank you.
  CHAIR—One of the issues that has come up quite frequently is the question of ministerial
decision making power, and groups from both the right and the left have expressed concern
about the minister’s unilateral decision making power—the mining industry on one side and
Greenpeace and the Environmental Defender’s Office on the other. There is some view that
the minister should have to not only consult with other ministers but should formally have

ECITA 260                           SENATE—Legislation                Thursday, 4 March 1999

written into the legislation a requirement to take into consideration their views. Do you feel
any need to change the decision making powers of the environment minister to in some way
mean that he has to include other ministers’ advice in making such decisions, considering that
submitters from both industry and environmental groups have a range of concerns about the
   Mr Beale—Concern has been expressed by some of the industry groups that this bill gives
the environment minister too much power to make decisions in relation to projects and that,
in some sense, he should be obliged to build into the bill’s provisions processes that would
normally be internal to government. For example—and I am not sure whether this has been
put to your committee—some members of industry have suggested to me that the bill should
require decisions to be made by cabinet. That would be very foreign to our legislative
   Senator ALLISON—And difficult to insist on compliance as well.
   Mr Beale—The bill requires that the minister must take into account any relevant comments
given to the minister by another minister in accordance with an invitation under section 131.
It is important to emphasise those words ‘any relevant comments’ because they have to be
comments that are pertinent to decisions made under the purposes of this bill, not comments
about matters that are, properly, irrelevant to these considerations.
   From my point of view—and I have been in this system for substantially more than 30 years
now—to have a provision that goes beyond that in terms of the internal workings of
government would be unusual. The environment minister is given certain powers. He has to
exercise them under pretty clear guidelines laid down by the parliament, if it adopts this bill.
He must have regard to the relevant views of other ministers, but it does not get beyond that
in terms of decision making within executive government. Does that cover the issue?
   CHAIR—It does clarify it, but it is true that there have been submissions from both sides
that some sort of modification of that process might be desirable.
   Mr Beale—Have the conservation movement suggested that—
   CHAIR—The conservation movement feels that modification is desirable for different
reasons from those of industry. The conservation movement seems to feel there should be a
process of consultation with environmental groups. The mining industry feels perhaps that the
minister responsible for minerals and energy ought to have quite a big say in whether or not
a mining project gets the go ahead, and so on. So they are coming from different directions,
but I am raising this because it has been raised by a number of submitters.
   Mr Beale—The minister is obliged under section 131 to inform and invite comments from
any other minister who has administrative responsibility relating to the action or the decision
that he takes. Those comments have to be pertinent comments. In general, if one talks about
impact assessment processes, the Commonwealth has always had a public consultation process
as a part of that. I am not aware that the minister has ever been short of advice and comments
from those outside government in terms of the decisions he makes, but it is true that this does
not provide him with a statutory obligation to inform people of his intended decision and to
seek their views on it. Indeed, to do so would be somewhat unusual in the broad spread of
legislation. Mr Fletcher, do you want to add to that or subtract from it?
   Mr Fletcher—No.
   CHAIR—Perhaps the mining groups feel that it means that the minister for the environment
is given a superior position in the decision making process and that environmental issues may

Thursday, 4 March 1999               SENATE—Legislation                               ECITA 261

predominate over the economic benefit of an issue or proposal. Their concern is that the merits
of their project may be viewed from a particular point of view and not be given an unbiased
decision making process in assessing it.
  Mr Beale—The committee would have to consider whether the guidance given to the
minister, in making his decision under the bill, is one that is likely to lead to a wise decision
in terms of protecting the environment, biodiversity and conservation. The minister is not
obliged to close his eyes to broader issues of sustainable development. In fact, section 136,
in dealing with ecologically sustainable development, sets out that he must have regard to
economic and social matters to the extent that they are pertinent to the decision. But there can
be no mistake that this bill does represent a very significant change in the powers of the
environment minister. Rather than simply making recommendations to another minister, he
has to make a decision himself, and that reflects that his involvement is no longer triggered
simply by a decision being made by another minister but is triggered by it being a matter of
national environmental significance in its own right.
   If, as has been suggested, one were to privilege the minister responsible for minerals from
time to time, do we say the same thing with respect to the minister responsible for fisheries,
forests or transport? If you take that approach, does it get you back to the previous legislative
framework which effectively gave the environment minister all care but no responsibility? It
is true they are pointing to one of the fundamentals of this bill, and that is that the environment
minister has the power and the obligation to make some very important decisions about matters
of national environmental significance.
  CHAIR—Some of the industry groups, and perhaps some of the states, might feel that it
might be desirable to have a joint decision made. It is possible in the way governments evolve
that you might have a minister who perhaps was less responsibly concerned with social and
economic issues and more of an unduly environmentally orientated enthusiast than perhaps
other ministers might have been. That might have meant that various mining and tourist
projects, transport and roads and so on, which were really desirable in the social and economic
broader interests of the community, might not go ahead.
  I think there is some genuine concern amongst certain groups that governments may change,
and you might have a minister who perhaps was not prepared to take the other factors into
consideration, and give them the ear to the extent that he should and give them their full due,
because there is no appeal process.
   Mr Beale—I understand that view and, of course, it has been one that has been put to me
directly by those concerned. My response has been that, first of all, the legal processes
constrain ministers from acting in a way that is inconsistent with the legislation. So if they
feel that ministers are making whimsical or irresponsible decisions, or decisions that cannot
reasonably be related to the requirements under the act, or they are taking into account
irrelevant considerations, then there are answers in the courts.
  Secondly, the normal processes of cabinet government and discipline within executive
government mean that ministers who consistently take a position that the government does
not feel reflects both their legal obligations and a fair balance are advised that they are doing
so by their colleagues. At the end of the day, it is up to the government of the day,
democratically elected, to determine whether a minister is acting in accordance with the
government’s broad objectives. I am not sure that any bill can attempt to substitute for that
sort of democratic decision making discipline.

ECITA 262                           SENATE—Legislation                 Thursday, 4 March 1999

  CHAIR—Another matter which has been raised by a number of submitters is the question
of having a commissioner for the environment. What is your view and position on that?
  Mr Beale—I am aware that there is a provision for some such role in Canada. This is a role
of examining and monitoring environmental activities. As for ecological sustainability, ESD
sustainability, it is only early days. It is a very bureaucratic approach. We have not seen the
necessity to build such a role into the bill. The minister—and, serving the minister, the
department—will, of course, have an obligation to monitor and evaluate, for example, state
compliance with bilateral agreements. If my memory is correct, I am going to have to report
to the parliament on that every year and no doubt be examined in relation to it. But it is not
a case of setting up a separate bureaucratic arm for that.
  Senator ALLISON—We already have an auditor that does performance audits on
government departments and government activities. Why is it any different? Why is that
process a difficult one?
  Mr Beale—I do not think the Auditor-General, if he put his mind to conducting an audit
on a matter relating to the implementation of the bill, would be constrained in any way from
doing that. It would not surprise me if he did at some point. I know that the question is: do
you need to create additional bureaucratic structures or can you rely on the joint obligations
that I or my successor would have to report, and on the Auditor-General’s broad ability to do
performance audits?
  CHAIR—The other area that has come through a little bit in some of the submissions is
to do with indigenous rights and issues and interests. We are yet to hear from some indigenous
groups in Darwin and Adelaide. Some of the indigenous groups feel that their rights and issues
are being diluted by the removal of the director of national parks into the office of
Environment Australia. Would you like to comment on that?
   Mr Beale—Indeed. There is no proposal in this bill that would in any way dilute the powers
of the boards of the various national parks—Kakadu, Uluru-Kata Tjuta and Booderee. There
is no intention to diminish the power of Aboriginal communities in joint management. The
Aboriginal majority on the boards will be preserved. The minister has indicated that if that
requires the addition of further members—traditional owner members—to the board, he is quite
prepared to consider that.
  The powers of the minister—or the boards, if you like—in relation to the parks will not
change. What is proposed to change is that the statutory position of director become a position
within the department, so that the minister is directly responsible—and I am responsible as
well—for the performance of those functions. This reflects the government’s concern that
ministers should be responsible to the parliament for the performance of their portfolios rather
than have a series of statutory, as it were, cut-outs. That is among the matters that the minister
has talked to both the Uluru and Kakadu boards about. I have not yet had a detailed report
from the minister on their response. It is really part of that overall government view that
ministers should be clearly responsible for these activities. It is not an attempt to—
  CHAIR—What you are really saying is that indigenous people will still be on boards and
that their interests will still be protected and preserved?
  Mr Beale—Absolutely. And they will continue to have the majority on those boards.
  CHAIR—One other matter that has come up several times is the list of matters of national
and environmental significance and the fact that the list can be extended by regulation. What

Thursday, 4 March 1999                   SENATE—Legislation                                     ECITA 263

sort of process would be involved in the decision to extend the list? That is a question that
has come up in several submissions.
  Mr Beale—The act clearly requires the minister to consult with the state parties—the state
and territory governments. It requires the Governor-General to be satisfied that that
consultation has taken place. It, nevertheless, does allow the Commonwealth to add, by way
of regulation, additional matters of NES after that consultation.
  There have been two views put in consultations. One is that it should require the agreement
of the states. The difficulty with that is that it would mean that the Commonwealth would be
potentially capable of being stopped, for example, from implementing an international
obligation. If any one of the states or territories were to block that move, to provide a bill that
was framed in that way would not be consistent, we believe, with our fundamental obligations.
So if tomorrow the equivalent of the ozone problem were identified and it required global and
national action to address it, the Commonwealth must, at the end of the day, be in a position
to address that after proper consultation—and remembering that we now have a very
comprehensive treaty process, more broadly.
  The other suggestion that has been made is: should this not require legislative action on each
and every occasion? Again, that can be a time-consuming and complex process. The regulatory
process allows the Commonwealth to act with due expedition when that is required, but also
allows the parliament to disallow the regulation if it considers it to be inappropriate. We think
that that provides the right balance between the concerns of the states and the Commonwealth’s
obligation to preserve some element of independent action in relation to NES.
  Senator ALLISON—I want to go back to the bilateral agreements again. A number of
witnesses raised the issue of what happens in the event of suspension or termination of those
agreements. Does the bill continue to work in that case?
  Mr Beale—I will start and then my colleagues can follow on. If an agreement is terminated,
then it is as though the agreement had not existed in terms of new decisions.
  Senator ALLISON—Presumably there will be a project which is under way.
  Mr Beale—There may or may not be.
  Senator ALLISON—What if there is?
  Mr Beale—Clause 64 states:
If, at the time of the suspension or cancellation of a bilateral agreement, an action did not require approval
under Part 9 because:
. it had been approved in accordance with the bilateral agreement; or
. it was being taken in the manner specified in the bilateral agreement;
then the Act continues to operate in relation to that action as if the suspension or cancellation had not
If a person was already taking the action when the operation of the provision of the agreement
was suspended or cancelled, and the action was able to be taken because a person was taking
the action in the manner specified in the bilateral agreement, this act continues to operate in
relation to the action as if the suspension or cancellation had not occurred. So those parties
who feel that a suspension would put at risk all of the past approvals should be reassured that
there is not an intention effectively to apply that retrospectively. But once the agreement has
been suspended or cancelled, then the provisions of the act apply from there on as though there
was no agreement, so the Commonwealth would have to become the approving agency in
relation to each of the matters that had been covered.

ECITA 264                          SENATE—Legislation                Thursday, 4 March 1999

   Senator ALLISON—Could you give that some bones by way of an example?
   Mr Beale—Again, off the top of my head: you have a development in an area covered by
a bilateral agreement relating to Ramsar. That development is a—
   Senator ALLISON—Chemical storage plant at Point Lillias in Victoria, near the Ramsar
wetland, for instance.
   Mr Beale—That is probably a loaded example. Shall we say it is a motel development near
the Coorong Lakes. That development is approved by the state under the management plan
because it has been found to have no impact on the Ramsar values—in other words, the
sewerage is all set up in the proper way, there is going to be no run-off from the property and
so on.
   Senator ALLISON—This is not a conservation agreement; we are talking about a bilateral.
   Mr Beale—This is a bilateral agreement.
   Senator ALLISON—So there is a specific bilateral attached to this motel at the Coorong..
   Mr Beale—No, not attached to this motel. There is an agreement for the Coorong Lakes,
shall we say.
   Senator ALLISON—This is actually quite useful. The bilateral agreement says nothing
about the motel; it just talks about general management of the Coorong.
   Mr Beale—That is right. It says—I am extemporising—that you may not approve anything
that adds nutrients to the Coorong or allows pesticide run-off.
   Senator ALLISON—All of a sudden, the state says, ‘Go ahead.’
   Mr Beale—It has conditions. The state says ‘Well, we have assessed this, this motel does
none of those things and it may go ahead.’ For some other reason, the bilateral agreement with
the state is suspended while the motel is halfway through construction.
   Senator ALLISON—Surely the reason would be that the Commonwealth discovers that
it in fact does what it is not supposed to do. It does not have an adequate sewerage system
and the effluent goes into the wetlands.
   Mr Tucker—I think the secretary’s example is about a project that is halfway through and
that is meeting all the requirements, and we are suspending the process for some other
reason—for example, there may be another project that the state did not adequately assess and
we are suspending the process. Because of that, how does it affect this particular example
where it is halfway through a project?
   Mr Beale—In that case, the project is able to be completed because it is a matter that was
properly covered by the operation of the bilateral agreement.
   Senator ALLISON—Why would the bilateral agreement be suspended?
   Mr Beale—As I said, some other causus belli.
   Senator ALLISON—I see. What if it were the motel that had caused the bilateral agreement
to be suspended?
   Mr Bamsey—If the development were not taking place in the specified manner—
   Mr Beale—It would clearly not have been covered by the bilateral agreement. In that case,
the Commonwealth’s view would be: ‘The bilateral agreement says you can only approve
something that does not involve this nasty impact on the water, but here we discover that you
have approved something, or are purported to have approved something, under the agreement
in which the sewerage is pumped directly into the Ramsar wetland’—we should not have

Thursday, 4 March 1999                  SENATE—Legislation                         ECITA 265

mentioned any particular place, should we—‘and the fish are going to die and the whole
system is going to be corrupted.’ On my reading of this, that is something that the state could
not properly have approved under the bilateral agreement.
   Senator ALLISON—But say it did. We are dealing with hypotheticals but this is necessary,
I think, to understand the processes.
   Mr Beale—It could not have been a proper approval and therefore I do not think it would
have attracted the preservation.
   Senator ALLISON—But if it did? Say the proposal was initially for five rooms and there
was no impact on the wetland area, and then after some political interference—who knows
what—the motel was three times the size. Somewhere during the process it changed and, in
the Commonwealth’s view, it does now compromise the agreement. The state disagrees with
that, and the Commonwealth moves to suspend the agreement. Is that how it can work?
   Mr Beale—That is correct, but I do not think that action would have been approved in a
manner specified under the agreement.
   Senator ALLISON—Nonetheless, strange things happen. If it did, what is in the bill that
provides for that?
   Mr Beale—Again, I think the argument would be that that project could not have been
properly approved with that effect under the provisions of the bilateral agreement and,
therefore, that it would not attract the protection of section 64. Wayne or John, would you like
to answer that?
   Dr Higgins—I think that that would probably depend on exactly how the bilateral agreement
was set up.
   Mr Beale—In a sense, it is a question of fact. If the bilateral agreement were set up in a
way that said you could not approve anything that was going to have this deleterious impact
and, as a question of fact, something was purported to be approved under the bilateral
agreement but was going to have that deleterious impact, I do not believe that it would attract
the protection, under section 64. If you like, I will ask a lawyer.
   Senator ALLISON—If we trust the states entirely to never approve anything which would
be deleterious—not comply with section 64 or whatever it is—if that is never going to happen,
if we never contemplate a circumstance in which a suspension is needed for that purpose, what
is the point of having the suspension provision? Under what circumstances would a bilateral
agreement be suspended?
   Mr Beale—The circumstances under which a bilateral agreement can be suspended are set
out on page 57, section 59; that is, where:
. . . the Environment Minister is not satisfied that the State or Territory:
(a) has complied with, and will comply with, the agreement; and
(b) has given effect, and will give effect, to the agreement in a way that:
(i) accords with the objects of this Act and the objects of this Part;
The point I was trying to make was that, if a state clearly, knowingly purported to approve
a project under a bilateral agreement that had impacts that were not consistent with that
agreement, that would provide the Commonwealth with a cause to cancel the agreement.
Again, my next point is—and I will seek further advice on this—if a project that was the
occasion of that concern had not been properly approved under the bilateral agreement because

ECITA 266                           SENATE—Legislation                 Thursday, 4 March 1999

it did have those deleterious effects, I do not believe it would attract the protection of section
   Senator ALLISON—What does that mean?
   Mr Beale—Again, if you have a project that clearly should not have been approved under
the bilateral agreement—because it damages the fundamental values that the bilateral
agreement is attempting to protect—that can be: (1) a cause for suspending the bilateral
agreement; and, (2) when the bilateral agreement is suspended, the Commonwealth would not
be precluded or constrained by the purported agreement by the state under the bilateral
agreement from using the powers under the act.
   Senator ALLISON—Which are what? Apart from suspending the agreement, what are those
   Mr Tucker—If your question is, ‘If we suspend the agreement, but whoever is building the
motel continues to build the motel, what happens?’-
   Senator ALLISON—Even if it does not; even if it only gets halfway.
   Mr Tucker—If they have essentially broken the law, then we will bring in the enforcement
provisions of the act—the fines and so on.
   Senator ALLISON—But who do you act against, the state or the proponent of the motel?
   Mr Tucker—The taking of the action.
   Mr Beale—That would be the proponent.
   Senator ALLISON—Even though they might have had state permission to do that?
   Mr Beale—They had permission from the state that purported to be permission that would
bind the Commonwealth.
   Mr Bamsey—As Mr Beale said earlier, it is difficult to take these hypothetical situations
too far because in such a situation the precise arrangement of facts would have a major effect.
If we prosecuted, then it would really be for the court to assemble all the facts and the law
and make a decision.
   Senator ALLISON—So you would prosecute, but you would prosecute the proponent, not
the state?
   Mr Beale—It depends on what actions are happening after the thing has been terminated.
Are there ongoing actions that are going to impact on the area? It might be better if we can
think through some of the examples and look at the flow chart or something in that way.
   Senator ALLISON—It would be useful to have an opinion about the legal status, too, of
bilateral agreements. If you take one to the High Court and it is found to have no legal status,
what happens then to the bill?
   Mr Beale—The bilateral agreement clearly has the legal status provided for it under the bill;
that is, it provides a basis on which actions that would otherwise be caught by the bill can
be dealt with under the state legislation, and it is within the Commonwealth’s constitutional
competence to provide for that.
   Senator ALLISON—I look forward to that advice. It sounds useful. A lot of witnesses have
asked that bilateral agreement processes provide a public consultation and an appeal
mechanism. Is government wavering on that score? Is there no suggestion that this should be
looked at?

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 267

   Mr Beale—We are aware that people have asked for public consultation processes. There
is nothing in the act that precludes public consultation. At any point from the signing of the
agreement a person may refer to the minister a matter which they believe involves
contravention of the bilateral agreement. The minister then has to go through the processes
set out in section 57.
   Senator ALLISON—The minister is obliged to go through some processes?
   Mr Beale—Yes.
   Senator ALLISON—What sort of legal status will the administrative guidelines have?
   Mr Beale—We have regulations which will have the status of regulations. The others will
be guidelines like those under the EPIP Act which have the status of being literally that—
guidelines. In the recent case of the long-term operational plan for Sydney Airport, that is,
Botany Council v. the Commonwealth, Justice Finn has a description of the status—and this
applies generally to guidelines—under which legislation is implemented.
   Senator ALLISON—Why is it that clause 75 requires the minister to only consider the
adverse impacts of an action on protective matters and not on any beneficial impacts? This
is something that was raised by the industry.
Mr Beale—Raised by whom?
   Senator ALLISON—By the mining industry, as I recall. I think they cited dredging a
wetland as being a beneficial action.
   Mr Beale—The first thing is: does it need an approval? You will recall that one of the
difficulties we got back into at the time of the listing—I think it was of the wet tropics world
heritage area—was that it appeared that the EPIP Act needed to be triggered, whether or not
this was an advancement or a damage to the area concerned. That very nearly made very
difficult the improvement in environmental conditions. So for that reason the World Heritage
(Properties Conservation) Act was amended to exclude the application of the EPIP Act. In
general here, the whole point is that the minister has to decide whether or not there will be
an adverse impact on a matter of national environmental significance. Once you have made
a decision about that, you then know: does this need approval? It is at the point of considering
the approval that the minister has to weigh up a broader set of interests and to talk to relevant
other ministers and so on.
   Senator ALLISON—So you are saying that it can be taken into account?
   Mr Beale—Yes, at that time. The first threshold test is: does this need approval? And there
you want to make sure that you do not approve anything that causes damage.
   Senator ALLISON—The bill does not provide for vulnerable communities; it does provide
for endangered and vulnerable species and endangered communities. Why was it decided not
to include vulnerable communities?
   Dr Higgins—The bill does provide for the listing of vulnerable ecological communities in
clause 181. By virtue of that listing, they are protected by the permitting provisions as long
as they are in Commonwealth areas. However, the vulnerable ecological communities are not
a trigger for assessment and approval under part 3. The reason for that is that it was not
considered essential for their proper management and protection in the whole scheme of the
   Senator ALLISON—Can you say why?

ECITA 268                            SENATE—Legislation                  Thursday, 4 March 1999

   Mr Fletcher—They are really faced with a lower level of endangerment in terms of
endangered ecological communities. They are a new category coming into play.
   Senator ALLISON—Is it possible to give an example of that?
   Dr Higgins—There are none listed at the moment because there are new categories. So it
is difficult to give a concrete example off the top of my head.
   Mr Beale—Were we to try, it might lead to a heated debate.
   Senator ALLISON—Might it? Can you explain how the bioregional planning will operate
under the bill? How does that work?
   Dr Higgins—The bioregional planning provisions in the bill, as you can see, are fairly
broad. The operations that are set out there are quite simple. They simply say that the minister
may prepare or cooperate with a state, territory or any other person in the preparation of a
bioregional plan and may provide assistance to them on behalf of the Commonwealth. If there
is a bioregional plan in place, the minister may have regard to that plan in making a decision
under the act. Also, the bill provides that the lack of a bioregional plan does not affect
obligations under the act in relation to Commonwealth areas. That is really all the material
that is set out in the bill. The intention is simply to put in place a flexible bioregional planning
provision which would allow the minister to use these sorts of plans to promote the
conservation of biodiversity.
   Senator ALLISON—Who instigates them? Who decides that there will be a bioregional
   Dr Higgins—They could be instigated by either the minister or the other party.
   Senator ALLISON—So, for instance, can three local governments get together and decide
on a bioregional plan?
   Mr Fletcher—Yes, that could happen. Actually, it has happened in a number of areas
around Australia, particularly for catchments. Governments have cooperated in the development
of bioregional plans.
   Senator ALLISON—So what is the process if local government get together and do this
and present it to the minister?
   Dr Higgins—There is no formal process for that set out in the bill. It would be open to the
local governments to make an approach to the minister.
   Mr Fletcher—Through the states and territories they can seek assistance.
   Dr Higgins—Yes, it would be open to local governments to seek assistance under this
provision of the bill and the minister would consider that proposal on its merits.
   Senator ALLISON—What advantages will there be for these bioregional plans?
   Mr Fletcher—Just to correct that, it also covers any other person. So any other person could
also obviously include a local government making an approach direct to the minister.
   Senator ALLISON—Again, what is the advantage? Why would someone bother doing it?
   Mr Fletcher—What is the advantage of developing a bioregional plan?
   Senator ALLISON—Yes.
   Mr Fletcher—If you are looking at a catchment it has a lot of advantages in terms of
looking across total catchment, for instance, in terms of management.

Thursday, 4 March 1999              SENATE—Legislation                              ECITA 269

  Senator ALLISON—I can understand what the environment benefits are, but what in
process terms are the benefits of preparing one?
  Mr Fletcher—Obviously, they can be used as a guide in decision making. You will get
much better decision making if you are using a bioregional plan.
  Senator ALLISON—What is its role within the bill?
  Mr Fletcher—Basically, it can assist in decision making.
  Senator ALLISON—So the bill facilitates an encouragement, or something, does it?
  Mr Fletcher—Yes.
  Senator ALLISON—Again, what advantages are bestowed by the Commonwealth on
someone who prepares one?
  Dr Higgins—There is a provision that allows ministers to provide assistance to people as
part of a bioregional plan. But that is not a requirement for the bioregional planning process.
  Mr Tucker—Senator, is your question: if you have a bioregional plan, what does it get you
out of in terms of Commonwealth action? If it is, I think the answer to that is that it does not
get you out of any Commonwealth action; it is just another mechanism whereby we can
encourage conservation.
  Mr Bamsey—It is a source of information in making decisions and the minister can take
account of it. It could be helpful.
  Senator ALLISON—A lot of people have expressed concern about the conservation
agreements. There is a general unease about the potential for secrecy and the ability to lock
away public areas from the public as a result of those.
  Mr Bamsey—With regard to secrecy, there are arguments and provisions in the bill—I think
under section 309—to not make public aspects of conservation agreements where this may
result in harm being done to components of biodiversity or result in disclosure of matters
which are business-in- confidence. One of the examples that is often given is if you have a
rare or endangered species and you identify that area specifically, unfortunately sometimes
people try to go and dig it up. They kept the location of the Wollemi pine secret for quite
some time. I am not sure that they have even now made it publicly known, until they had
secured a seed stock.
  The primary purpose of any such conservation agreement must be to enhance the
conservation of biodiversity, so that it cannot be an agreement whose primary purpose is to
facilitate development. This is not a provision in our minds that was ever about doing deals
with developers, but rather about facilitating landholders.
  Senator ALLISON—So will the Commonwealth check all those conservation agreements?
What sort of monitoring will they do? Once you exclude the public, the Commonwealth has
really got to do that work, doesn’t it? Surely the public is there as a safeguard against
inappropriate agreements if they have an involvement in them.
  Mr Beale—In a way. We very recently had an agreement signed in relation to a private
Ramsar site. It was the very first of such sites to be actually listed privately on private land
as the result of a group of landowners’ specific action. I am not sure that the public had access
to that site previously, but really, what the landowners did was to assume a set of obligations.
This would provide a legislative framework under which agreements of that sort could be
honoured and given some support and legislative teeth. Do you want to add to that, Howard?

ECITA 270                              SENATE—Legislation                   Thursday, 4 March 1999

  Mr Bamsey—No. I would just draw attention to a number of provisions in the bill,
including clause 310 which says:
The Minister must:
(a) maintain un up-to-date list of conservation agreements that are in force; and
(b) take reasonable steps to ensure copies of the list are available. . .
And to emphasis that, clause 305(2)(a) says:
The Minister must not enter into a conservation agreement unless satisfied that:
(a) the proposed agreement will result in a net benefit to the conservation of biodiversity.
Those taken together, I think, give a picture of the purpose of conservation agreements, that
they are intended to be a net addition.
  Senator ALLISON—The World Wide Fund for Nature cited Victoria’s covenant legislation
which allows the Trust for Nature to apply covenants to land as being a very good example
of how the system might work, but it regretted that other states do not have similar legislation.
Did the government attempt to persuade the other states to put in place similar legislation?
  Mr Beale—The minister has been, I know, very supportive, including, I am sure, of his state
colleagues, of approaches like that taken in Victoria. I am not sure whether ANZECC has ever
discussed that as a specific matter. Do you know, Mr Tucker?
  Mr Tucker—No, I do not know, but it would not surprise me. One of the other mechanisms
where that similar outcome is being achieved is, I suspect, the conservation agreements in
Tasmania associated with the regional forest agreement.
  Senator ALLISON—They do not have the same covenant protection, though, I do not think.
  Mr Tucker—That is one of the possibilities. There is a suite of mechanisms that we could
possibly use, one of which is attaching the conditions to the title on the property, which is
not exactly the same, but a similar outcome.
  Senator ALLISON—I don’t suppose that would be the subject of a bilateral agreement,
would it?
  Mr Tucker—No, but you were saying, ‘Do other states do things like that?’ There are
examples where other states are doing similar things. It may not necessarily be something that
you would actually do under this piece of legislation.
  Senator ALLISON—Have there been any thoughts about other bodies accrediting
conservation agreements like the Trust for Nature?
  Mr Beale—There is no provision for that in the bill, Senator.
  Senator ALLISON—So the states are the only bodies that can accredit conservation
  Mr Beale—It is the Commonwealth and the private party.
  Senator ALLISON—I see. This is nothing to do with the states?
  Mr Beale—No.
  Senator ALLISON—What about accreditation then of bilateral agreements? Can they only
be with the states or could other groups accredit?
  Mr Beale—No, it is with the state or territory. Again, it is in relation to the application of
their legislative powers to achieve the Commonwealth’s end.

Thursday, 4 March 1999             SENATE—Legislation                             ECITA 271

   Senator ALLISON—What sorts of things are likely to be key threatening processes? For
instance, would agriculture be a key threatening process?
   Mr Beale—A key threatening process has to meet a number of characteristics. Firstly, it
has got to be likely to cause a decline in species and, secondly, it has to be amenable to the
development of a national threat abatement plan.
   Senator ALLISON—What sorts of things will they be? What do you imagine?
   Mr Beale—For example, foxes and cats have been already identified as key threatening
processes, if my memory is correct. Land degradation caused by rabbits and the incidental take
of seabirds by long-line fishing are examples of key threatening processes.
   Mr Fletcher—Degradation by goats and phytophthora
   Senator ALLISON—So would aquaculture not qualify as a threatening process under any
   Mr Beale—I do not think that aquaculture at large could be considered to be a key
threatening process on the facts. That is too broad. But particular mechanisms or practices
employed in the industry, if on the facts they have an impact on a species, could be caught.
You would have to find the aquaculture version of long-line fishing and the albatross. It is
a matter of finding the impact.
   Senator ALLISON—Has the department had a chance to look at the World Wide Fund for
Nature’s submission where they make suggestions concerning exotic species and suggest the
inclusion in the bill?
   Mr Beale—I certainly have not. Has the committee made that submission available?
   Senator ALLISON—I believe so.
   Mr Tucker—They have also approached the minister on the matter.
   Mr Beale—They would not have provided their submission without the committee’s
   Senator ALLISON—The submissions have been made public, haven’t they?
   Mr Beale—I have not read it.
   Mr Fletcher—Do you want me to comment in terms of the bill actually covering, or listing,
feral species?
   Senator ALLISON—I just wondered if that submission had received any favourable
response from the department or the minister?
   Mr Fletcher—We have certainly considered the submission. It is a matter for the minister
   Senator ALLISON—Why doesn’t the bill deal with exotic species?
   Mr Fletcher—At the moment there are a whole lot of programs basically that have been
put in place to deal with weeds and feral pests.
   Senator ALLISON—We have got programs in place for biodiversity, too, but it does not
stop us having a section in the bill.
   Mr Fletcher—The programs are very efficient. Really, it is difficult to see that putting a
list in legislation would actually help tackle the problem in a more effective way.

ECITA 272                           SENATE—Legislation                Thursday, 4 March 1999

   Mr Beale—This bill deals with essentially those matters that you can really drive through
legislation. It does not attempt to deal with every issue that is a matter of importance or
   Senator ALLISON—Another submission today from the National Botanic Gardens people
here in Canberra demonstrated some distress that they have disappeared out of the statutes as
a result of this legislation. Why was their role and existence not incorporated in the bill?
   Mr Beale—My attention was drawn to an answer of two questions ago and I was looking
for the National Botanic Gardens.
   CHAIR—They wanted to be specifically mentioned. They were there as a management
authority and continued in that way but they were not very happy about that. Originally, they
thought they had lost their identity totally within the legislation when, in fact, they have not.
But they wanted to be specifically mentioned.
   Mr Beale—I am sorry, Senator, I do not have that level of detail.
   Senator ALLISON—Again, if we can ask you have a look at that submission and respond
it would be useful. I have got quite a few other questions but I am scheduled to be at the
airport in about 20 minutes.
   CHAIR—Would you like to put them on notice?
   Senator ALLISON—As we discussed earlier, it might be useful if we leave open this
question of talking with the department again until after we have seen the rest of submissions
and had the hearings.
   CHAIR—We can arrange another departmental briefing where you can ask questions.
   Senator ALLISON—I think that is a useful process. We could do this in the chamber but
I am sure you do not want that.
   Mr Beale—We would be very happy to cooperate. Can I go back to the suspension of
bilateral agreements? The essence of your question, I understand, is that we all understand that
if projects have been approved in accordance with the bilateral agreement they proceed. The
question mark is: what if there is an allegation that a project has not been approved in
accordance with a bilateral agreement—it has been approved, in some sense, in violation of
that bilateral agreement?
   Senator ALLISON—I understand what would happen then. It is really where the
Commonwealth and the states disagree.
   Mr Beale—I just wanted to understand what the question was. I will get that advice.
   Senator ALLISON—It is where the state might say it complies and the Commonwealth
does not agree, or the states, for whatever reason, agree to modify an agreement they have
given to a proposal and then there is disagreement between the two.
   Mr Beale—Thanks, Senator. We will try and get you an answer.
   CHAIR—I would like to thank the witnesses for appearing today and with that I will close
this session of these hearings.
                              Committee adjourned at 7.08 p.m.


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