Environmental impact assessment: What role for the Commonwealth? - An overview

Environmental and Planning Law Journal

Volumn 13, Issue 4, 1996, Pages 246-259

  Fowler, Robert J ^a  

^a UNIVERSITY OF ADELAIDE   (Australia)

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[No Author keywords available]

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EID: 0011087769     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (63)

1. A English, Discussion paper: Developing the Management of Aboriginal Heritage in Protected Areas in New South Wales, unpublished report to the NSW NPWS (Sydney, 1995).
2. S Münchenberg, Review of the Commonwealth Environmental Impact Assessment Procesâ: Initial Response of the Commonwealth Government, paper delivered to EDO Conference on Commonwealth EIA (Sydney, 19-20 October 1995).
3. Administrative Procedures (1987), par 1.2.1.
4. Administrative Procedures (1987), par 1.2.1.
5. (1995) 85 LGERA 296 (Federal Court).
6. Note in particular, Administrative Procedures (1995), par
7. 2.2. For a critical comment, see J Johnson, Storing the Pulpwood on the Stump, in Australian Centre for Environmental Law (Adelaide), Proceedings of 2nd Defending the Environment Conference (Adelaide, 20-21 May 1995).
8. 2.2. For a critical comment, see J Johnson, Storing the Pulpwood on the Stump, in Australian Centre for Environmental Law (Adelaide), Proceedings of 2nd Defending the Environment Conference (Adelaide, 20-21 May 1995).
9. The constitutional validity of this approach was upheld by the High Court in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
10. 9 ALR 199.
11. See further, R J Fowler, Environmental Impact Assessment Planning and Pollution Measures in Australia (AGPS, Canberra, 1982), p 17; also pp 259-260.
12. See further, R J Fowler, Environmental Impact Assessment Planning and Pollution Measures in Australia (AGPS, Canberra, 1982), p 17; also pp 259-260.
13. See further, R J Fowler, Environmental Impact Assessment Planning and Pollution Measures in Australia (AGPS, Canberra, 1982), p 17; also pp 259-260.
14. In Australian Conservation Foundation v Commonwealth (1990) 146 CLR 493
15. Gibbs CJ and Stephen J considered this matter but expressed contrary views. In practice, the Commonwealth has never sought to raise the issue of enforceability of its Administrative Procedures in legal proceedings since this would contradict its regular approach of requiring private proponents to undertake the preparation of EISs pursuant to the procedures.
16. See Australian Postal Corp v Botany Municipal Council (1989) 69 LGRA 86 (Federal Court).
17. The application of the "relevant factors" test in this case vindicates the author's view expressed some 20 years ago that the Commonwealth process could be enforced by this means: see R J Fowler, "The Prospects of Judicial Review in Relating to Federal Environmental Impact Statement Legislation" (1977) II MULR 1.
18. As noted above, the Commonwealth has moved quickly to overturn the particular effect of the Gunns decision by amending the Administrative Procedures to ensure that an EIS will not be necessary for existing projects when they are subject to further Commonwealth decisions, except in rather limited circumstances: see Administrative Procedures (1995), par 1.2.2.
19. As noted above, the Commonwealth has moved quickly to overturn the particular effect of the Gunns decision by amending the Administrative Procedures to ensure that an EIS will not be necessary for existing projects when they are subject to further Commonwealth decisions, except in rather limited circumstances: see Administrative Procedures (1995), par 1.2.2.
20. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
21. See Export Control Act 1982 (Cth) and Export Control (Unprocessed Wood) Regulations.
22. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
23. House of Representatives Standing Committee on Environment and Conservation, Environmental Protection: Adequacy of Legislative and Administrative Arrangements-First Report (AGPS, Canberra, 1979), hereinafter referred to as the "Hodges Report".
24. House of Representatives Standing Committee on Environment and Conservation, Environmental Protection: Adequacy of Legislative and Administrative Arrangements-First Report (AGPS, Canberra, 1979), hereinafter referred to as the "Hodges Report".
25. House of Representatives Standing Committee on Environment and Conservation, Environmental Protection: Adequacy of Legislative and Administrative Arrangements-First Report (AGPS, Canberra, 1979), hereinafter referred to as the "Hodges Report".
26. For an overview of these types of arrangements, see R J Fowler, "New National Directions in Environmental Protection and Conservation", B Boer, R Fowler and N Gunningham (eds), Environmental Outlook: Law and Policy (Federation Press, Sydney, 1994), pp 113-148.
27. For a discussion of this issue, see A Gardner, "Federal Intergovernmental Co-operation on Environmental Management: A Comparison of Developments in Australia and Canada" (1994) 11 EPLJ 104 at 122 et seq.
28. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
29. There has been little in the way of published reviews of the implantation of the EPIP Act during this period. The following analysis is indebted to the valuable research undertaken by Mr Malcolm Hall, for his dissertation Changing Commonwealth-State Relations in Environmental Impact Assessment Procedures-The Implications for the Efficiency of EIA inAustralia (unpublished, December 1994, Adelaide) which was submitted in part fulfilment of the requirements for the LLM (Env) in The University of Adelaide.
30. There has been little in the way of published reviews of the implantation of the EPIP Act during this period. The following analysis is indebted to the valuable research undertaken by Mr Malcolm Hall, for his dissertation Changing Commonwealth-State Relations in Environmental Impact Assessment Procedures-The Implications for the Efficiency of EIA inAustralia (unpublished, December 1994, Adelaide) which was submitted in part fulfilment of the requirements for the LLM (Env) in The University of Adelaide.
31. There has been little in the way of published reviews of the implantation of the EPIP Act during this period. The following analysis is indebted to the valuable research undertaken by Mr Malcolm Hall, for his dissertation Changing Commonwealth-State Relations in Environmental Impact Assessment Procedures-The Implications for the Efficiency of EIA inAustralia (unpublished, December 1994, Adelaide) which was submitted in part fulfilment of the requirements for the LLM (Env) in The University of Adelaide.
32. Department of the Environment, State and Territories, Annual Report 1992-95 (AGPS, Canberra, 1993), Appendix 10 p 268.
33. P Toyne, The Reluctant Nation (ABC Press, Sydney, 1994), pp 151-174.
34. Environmental Assessment Act 1982 (NT).
35. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
36. IGAE, par 2.2.1.
37. IGAE, par 2.2.1.
38. IGAE, par 2.2.1.
39. IGAE, par 2.2.1.
40. IGAE, par 2.2.1.
41. ANZECC, Working Group on National Environmental Impact Assessment, Overview Paper, Basis for a National Agreement on Environmental Impact Assessment (CEPA, Canberra, 1992).
42. ANZECC, Working Group on National Environmental Impact Assessment, Overview Paper, Basis for a National Agreement on Environmental Impact Assessment (CEPA, Canberra, 1992).
43. ANZECC, Working Group on National Environmental Impact Assessment, Basis for a National Agreement on Environmental Impact Assessment (CEPA, Canberra, 1992) (the "1992 Draft Agreement").
44. This revised draft has not been made available to the public and the author, whilst aware of its terms, is unable to refer to them specifically.
45. 1992 Draft Agreement, par 8.2 (Joint Assessment Procedures).
46. 1992 Draft Agreement, par 8.2 (Joint Assessment Procedures).
47. 1992 Draft Agreement, par 8.2 (Joint Assessment Procedures).
48. 1992 Draft Agreement, par 8.2 (Joint Assessment Procedures).
49. 1992 Draft Agreement, par 8.2 (Joint Assessment Procedures).
50. Words to this effect have been inserted in the preamble to the 1995 revised version of the framework agreement.
51. The amendments have been under fresh consideration since the federal election in March 1996 but, at the time of writing, had not yet been implemented.
52. See IGAE, cl 1.5.
53. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
54. A English, Discussion paper: Developing the Management of Aboriginal Heritage in Protected Areas in New South Wales, unpublished report to the NSW NPWS (Sydney, 1995).
55. A English, Discussion paper: Developing the Management of Aboriginal Heritage in Protected Areas in New South Wales, unpublished report to the NSW NPWS (Sydney, 1995).
56. S Münchenberg, Review of the Commonwealth Environmental Impact Assessment Procesâ: Initial Response of the Commonwealth Government, paper delivered to EDO Conference on Commonwealth EIA (Sydney, 19-20 October 1995).
57. S Münchenberg, Review of the Commonwealth Environmental Impact Assessment Procesâ: Initial Response of the Commonwealth Government, paper delivered to EDO Conference on Commonwealth EIA (Sydney, 19-20 October 1995).
58. The author has access to an unpublished and undated document prepared by the Cth EPA and entitled Initial Response to the Review of the Commonwealth Environmental Impact Assessment Process, which provides extensive details of the accreditation arrangements proposed by the Commonwealth in conjunction with its planned amendments to the Administrative Procedures (hereinafter referred to as "Initial Response"). This document was circulated by the Cth EPA following a meeting of representatives of the Commonwealth, the States, industry and conservation groups on 13-14 September 1995 in Canberra.
59. Initial Response, p 11.
60. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
61. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
62. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
63. M Barker, Harmonising Commonwealth and State EIA Procedures: A View From Western Australia, paper delivered to EDO Conference on Commonwealth Environmental Impact Assessment, Sydney 19-20 October 1995.