7. Nuevas Soluciones de la Ecuaci´ on de Black-Scholes
7.5. Comparaci´ on de las soluciones
In deciding whether or not to approve the taking of an action, and what conditions to attach to such an approval (the approval decision), the Minister must follow various requirements.185 Importantly, these requirements include the safeguard that ‘the Minister must not act inconsistently with’ Australia’s obligations under specified multilateral or bilateral environmental conventions, relevantly (for the purposes of this thesis concerned with Australian forestry) including:
• the World Heritage Convention;186 or
• the Convention on Biological Diversity;187 or • the Apia Convention.188
A Ministerial approval in contravention of this prohibition would be unlawful. Given: • the analogous wording of the provision (‘the Minister must not act
inconsistently with …’) to that applied by the High Court in Project Blue Sky v Australian Broadcasting Authority;189and
• the objectively ascertainable legal content of Australia’s obligations under the specified conventions,
184Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 66. 185
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 136-140A.
186Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 137(a). 187Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 139(1)(a)(i). 188Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 139(1)(a)(ii). 189
(1998) 195 CLR 355.
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such an unlawful approval could be challenged by a third party under the Administrative Decisions (Judicial Review) Act 1977 (Cth) using the EPBC Act’s extended standing provisions.190
Nevertheless, in practice, when Ministerial statements of reasons for approval decisions are requested and furnished, they generally simply state, with little further explanation, that the Minister considered Australia’s obligations under the relevant international convention(s) and concluded that the decision would accord with them.191 This ‘tick a box’ approach to statements of reasons demonstrates no evidence of real engagement with international obligations, and may leave some approvals vulnerable to legal challenge.
Hence (leaving aside procedural difficulties in successfully challenging such Ministerial decisions through judicial review), the EPBC Act requirement that approval decision-making complies with Australia’s relevant treaty obligations is a potentially important limitation on approvals.
2.6 Conclusion
This chapter charted the over-arching treaty law, constitutional law and political considerations which led to the EPBC Act, as well as analysing key components of the Act itself. This conclusion summarises these and draws out the emerging theme of co-operative environmental federalism.
190
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 487, 488.
191 See eg Malcolm Turnbull, Minister for the Environment and Water Resources, Statement of
Reasons for Decision to Approve the Proposed Action by Gunns Limited to Construct and Operate a Pulp Mill at Bell Bay, Tasmania and Associated Infrastructure (EPBC 2007/3385), 1 November 2007, 28 [91] stating:
I also took account of Australia’s obligations under international conventions and agreements. I concluded that my decision would not be inconsistent with Australia’s obligations under the Biodiversity Convention, the Apia Convention, CITES, the Bonn Convention, CAMBA or JAMBA.
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2.6.1 Treaty Implementation: International Duty and Constitutional Capacity
The Commonwealth has both the international duty and constitutional power to implement treaty obligations in domestic law. Section 2.2 set out the fundamental rule of treaty law, ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’192 Other articles of the Vienna Convention on the Law of Treaties leave no wriggle room for Australia to avoid this duty on account of its federation. Neither does Australian constitutional law, under which the external affairs power and other heads of power (eg, the corporations power) enable the Commonwealth to implement its treaty obligations (section 2.3 above). PM Hawke’s use of these powers to implement the World Heritage Convention was upheld by the High Court in all three 1980s cases.193 Since then, interpretation of the corporations power, in particular, has expanded greatly. This confirms the national Parliament has much more capacity for environmental regulation than it has ever chosen to exercise.194 Hence, today, ‘the key issue is not so much whether the Commonwealth has the power to make environmental laws but when and how it should do so.’195
This ‘key issue’ is circumscribed less by legal, than by political considerations. The challenge is to overcome these political considerations to produce a federal regulatory and administrative framework driven by best practice policy and principles. Section 2.4 suggested such high-minded aspirations drive Australia’s
192 The pacta sunt servanda rule as codified in the Vienna Convention on the Law of Treaties, opened
for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 26.
193
Tasmanian Dam Case (1983) 158 CLR 1; Tasmanian Forests Case (1988) 164 CLR 261;
Queensland v Commonwealth (1989) 167 CLR 232 (Wet Tropics Case).
194 Department of the Environment, above n 110, [2.6]-[2.7].
195 Ibid [2.7]. A decade earlier, two months before passage of the Environment Protection and
Biodiversity Conservation Act 1999 (Cth), a Senate Committee report recommended that ‘The
Commonwealth should not hesitate to creatively employ the wide powers it possesses in order to protect and conserve the environment and should vigorously defend its power when challenged’: Senate Environment, Communications, Information Technology and the Arts References Committee, Parliament of Australia, Commonwealth Environment Powers (1999), 10.
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environmental legislation far less than political ideology which waxes and wanes as governments change. 1992 was a particularly high achieving year for environmental law at Rio and in Australia with the IGAE and NFPS. Since then, Australia has been dominated by co-operative environmental federalism, embodied in the EPBC Act.
2.6.2 EPBC Act: Consolidation and Treaty Implementation
The Full Court of the Federal Court has noted that, ‘The EPBC Act was enacted to implement the provisions of the Convention on Biological Diversity, and other [MEAs] into Australian law…’ and to consolidate federal environmental responsibilities.196 Section 2.5.1 explained how the Act achieves both these purposes. The Whitlam Government enacted a suite of federal environmental legislation. That challenged was upheld by the High Court as constitutional in contexts regarding:
• the geographic element of the external affairs power;197 and
• Commonwealth Government capacity to use its export control power to refuse export licences for environmental reasons.198
The omnibus EPBC Act replaced most federal environmental statutes focused on specific issues (eg World Heritage,199 endangered species200 or EIA201). In this respect, the Act was rightly heralded in its Second Reading Speech as an overdue consolidation of disparate national environmental statutes under one roof.202
196Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR
24, [2], quoted in Brown v Forestry Tasmania[No 4] (2006) 157 FCR 1, revd (2007) 167 FCR 34, [295] (Marshall J): full quote set out at 2.5.1.
197NSW v Commonwealth (1975) 135 CLR 337(Seas and Submerged Lands Act Case).
198Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1.
199
World Heritage Properties Conservation Act 1983 (Cth).
200Endangered Species Protection Act 1992 (Cth).
201Environmental Protection (Impact of Proposals) Act 1974 (Cth).
202 Commonwealth, Parliamentary Debates, Senate, 29 June 1999, (Sharman Stone, Parliamentary
Secretary to the Minister for the Environment and Heritage).
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The Act aims, inter alia, ‘to assist in the co-operative implementation of Australia’s international environmental responsibilities’203 through protection it provides MNES, most the subject of treaties. Relevant to this thesis are various MEAs which the Australian Government has signed and ratified.204 Australia’s Parliament205 has then implemented these treaties’ specific obligations in the EPBC Act. This thesis explores the extent to which those treaty obligations are implemented with respect to environmental impacts of forestry operations, given RFA exceptionalism.
2.6.3 Federal Responsibility for International Obligations
Intergovernmental agreements between the federal government and all States and Territories206 have acknowledged the Commonwealth’s responsibility to ensure fulfilment of Australia’s international environmental obligations. This is a logical division of treaty responsibility within the Australian federation given the federal government’s executive power to sign and ratify treaties and the Australian Parliament’s power to implement them. This does not necessarily absolve States or others of responsibility to avoid actions which jeopardise Australia’s international obligations. Ultimately, however, it is the Commonwealth’s responsibility to ensure this does not occur. The Commonwealth cannot absolve itself of this responsibility by EPBC Act object s 3(1)(e) referring to ‘the co-operative implementation of Australia’s international environmental responsibilities’. Hopefully, States and others will co-operation in this endeavour, but in case they do not, the Commonwealth must retain capacity to ensure compliance.
203
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(e).
204 pursuant to its Executive power: Australian Constitution s 61. 205 pursuant to its external affairs power: Australian Constitution s 51.
206 See eg the “Commonwealth responsibilities” in the IGAE (see Chapter 2) and Council of
Australian Governments (COAG), ‘Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment’, November 1997
<http://www.environment.gov.au/epbc/publications/coag-agreement/>; see also Department of Agriculture, The RFA Process Australian Government
<http://www.daff.gov.au/rfa/about/process/introduction>.
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The onus on the Commonwealth to ensure Australia meets its international obligations requires federal leadership and the retention of sufficient legal power (including enforcement mechanisms) to encourage and, when necessary, compel compliance by States and those they ordinarily regulate. Given a federal Government may be unwilling (eg for political reasons) to enforce Australia’s domestic (let alone international) environmental law, federal law should also allow third party law enforcement within Australia to ensure those obligations are met. The EPBC Act provides for such civil enforcement by third parties, including injunctions. However, in general, this is restricted to judicial review, rather than merits review. Most Australian States allow both judicial and merits review of planning decisions.
2.6.4 EPBC Act Co-operative Environmental Federalism and Bilateral Agreements
The EPBC Act is a creature of co-operative environmental federalism, exemplified in: • its development during the 1990s (eg, the IGAE (1992) and subsequent, less-
protective, COAG Heads of Agreement (1997):207 see sections 2.4.5 and 3.2);
• its objects (see sections 2.5.2 - 2.5.6); and
• its provisions for bilateral agreements with the States.
Co-operation is generally a virtue, though it depends to what end. Prima facie, the IGAE and the EPBC Act employ co-operative federalism for positive environmental purposes, such as co-operatively implementing Australia’s international environmental obligations.208 The Act also provides for a co-operative mechanism,
207 Council of Australian Governments (COAG), ‘Heads of Agreement on Commonwealth and State
Roles and Responsibilities for the Environment’, November 1997 <http://www.environment.gov.au/epbc/publications/coag-agreement/> – see section 3.2 in Chapter 3.
208
See eg Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(e).
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bilateral agreements, which enable the Australian Government to delegate to the States its EIA and/or project approvals powers. Their aim is to ‘strengthen intergovernmental co-operation, and minimise duplication, through bilateral agreements’.209 However, the Act having narrowed the Commonwealth’s regulatory role to MNES, devolution of its approval decisions to States risks removing from the Commonwealth its remaining environmental oversight power. This could come at the expense of the other substantive outcomes (beyond co-operation), such as environmental protection and meeting international obligations, which the Act’s objects seek. Contemporary developments in relation to EPBC Act bilateral agreements, and their comparison with RFAs, are considered in Chapter 8 at 8.10.1.
209
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(2)(b).
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Exceptionalism
3.1
Introduction
This chapter analyses how and the official reasons why the Australian Parliament excluded environmental impacts of RFA forestry from regulation by the EPBC Act. Enactment of this exclusionary scheme (which this thesis describes as ‘RFA exceptionalism’), and the justifications for it, are the chapter’s key foci. Forestry is instead regulated under a specific national statute, the RFA Act, which governs RFAs. These ten intergovernmental agreements, each between the Australian Government and one of the Australian States (New South Wales, Victoria, Western Australia and Tasmania), cover commercial forestry in RFA regions.1. The RFAs, generally of 20 year duration, mostly predated the RFA Act but are entrenched by it. Specifically, the chapter:
• summarises intergovernmental background to RFA exceptionalism in the COAG Heads of Agreement (section 3.2 of the chapter);
• explains the method of its statutory implementation, through
o the EPBC Act (section 3.3); and
o the RFA Act (sections 3.6-3.11), especially RFA Act s 6 (considered in section 3.8.7); and
• analyses and critiques the justifications given for it, both:
o justifications in the EPBC Act (sections 3.3); and;
o the contemporary governmental justification (section 3.4).
1
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 41.
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sector to which the EPBC Act grants a blanket exclusion from its Part 3 environmental protections, and thereby also its Part 7 EIA and Part 9 approval processes.2 The chapter’s section 3.3 argues that a number of the reasons set out in the EPBC Act for RFA exceptionalism are outdated and no longer applicable due to statutory amendments (eg those summarised in RFA Act s 6). For example, export licences have been rendered redundant as mechanism for environmental regulation by the EPBC Act3 and RFA wood specifically exempted from export control laws.4
Accordingly, the chapter turns in section 3.4 to the contemporary justification for RFA exceptionalism given by Australia’s national and State Governments (and the forestry industry): their claim that RFAs provide equivalent protection to the EPBC Act. From this justification, section 3.5 develops the research questions and hypotheses which the thesis will test.
Subsequent sections of this chapter, from 3.6, commence hypothesis testing by critiquing the RFA Act. It is shown to be far less protective of the environment than the EPBC Act, the RFA Act being focused more on protecting States and their forestry industries from future federal intervention.