New Commonwealth and State Government Environment Relationships
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 18/1999 by Stewart Smith
- The Australian State of the Environment Report of 1996 was the first ever independent and comprehensive report on the state of Australia's environment. The Report noted the following: The national ability to manage the environment is continually hamstrung by structural problems between different areas of government. Standards vary from State to State, and State and Commonwealth governments frequently battle over environmental issues. The recently established National Environment Protection Council will address some of these issues. Clearly, intergovernmental relationships are a major factor in environmental management (page 1).
- The Commonwealth has recently introduced new legislation to redefine its environmental responsibilities, which has repercussions for the States. This paper traces the history of Commonwealth and State environmental relationships and explains the operation and impact of the recently introduced Commonwealth Environment Protection and Conservation Act 1999.
- The Australian federal system of government has resulted in there being two distinct sources of environmental legislation - the Commonwealth and the State Parliaments. The Australian Constitution, which defines Commonwealth powers, makes scant reference to the environment. Instead, successive Commonwealth governments have relied on various heads of power to promulgate environmental laws (pages 3-4).
- Since Federation, the Commonwealth has had an evolving relationship with the States in relation to environmental protection (pages 4-8). Since the mid to late 1980s, the view within dominant sections of government and industry has been what is called co-operative federalism'. This policy holds that the Commonwealth should take the lead on matters of national significance and national coordination, while pulling back from direct command and control of other matters which have traditionally been regulated by State laws. This approach led to the rewriting of Commonwealth environment legislation and the introduction of the Environment Protection and Biodiversity Conservation Act 1999(page 8).
- The Act is divided into eight chapters, which are examined on pp 10-25.
- While industry has been generally supportive of the new legislation, a common criticism has been that it will not achieve the goal of promoting uniform environmental impact standards and processes throughout Australia, although the elimination of duplication is seen as a significant step forward (page 25).
- The reaction from the environment movement has been mixed. Sections of the movement supported the final Bill, as 80% of the desired amendments were included. Other environment organisations, such as the Australian Conservation Foundation, criticised the Act, stating that the Act has very limited national powers and fails to address national issues such as greenhouse gas emissions, forest protection, land clearing and water allocation.