Australia's first national environmental protection measures: Are we advancing, retreating or simply marking time?

Environmental and Planning Law Journal

Volumn 16, Issue 1, 1999, Pages 25-52

  Streets, Sue ^a   Di Carlo, Astrid ^b  

^a DEAKIN UNIVERSITY   (Australia)

^b Mallesons Stephen Jaques   (Australia)

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EID: 0040198377     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (176)

1. The IGAE was signed by the Prime Minister, the Premiers of the States and the Chief Ministers of the two self governing Territories of Australia, following a Special Premiers' Conference held in 1990. It came into effect on 1 May 1992.
2. Amongst other things, the IGAE aims to facilitate a co-operative national approach to the environment and a reduction in the number of disputes between the Commonwealth and the States and Territories on environmental issues.
3. Part 2 of Schedule 4 states that the "Commonwealth and the States agree to set up a Ministerial Council to be called the National Environment Protection Authority (now Council)". Legislation was later enacted in each State and Territory establishing the Council. This legislation is known as the National Environment Protection Council Acts. According to Fowler RJ in his article "Law and Policy Aspects of National Standardisation", in Environmental Outlook No 2, ACEL, at p 319
4. The establishment of the NEPC and the conferral of functions and powers on it in identical terms under the complementary legislation is said to provide the necessary constitutional authority for a body acting for the purposes of Commonwealth, State and Territory law. Even though the numbers of the sections may differ in the other jurisdictions, for ease of reference, unless otherwise mentioned, mention of the sections of the Council legislation is reference to the National Environmental Protection Council Act 1994 (Cth) (NEPCA).
5. R Ramsay and G Rowe, Environmental Law and Policy in Australia: Text and Materials, (Butterworths, Australia, 1995), p 303, (quoting from The Environmental Law Commission of the Australian Conservation Foundation, Submission to the Distribution of Powers Committee of the Constitutional Commission, 7 October 1986).
6. National Environment Protection Council Annual Report 1996-1997, pp 2-3.
7. The definition of these terms are as follows: "standard" means a standard that consists of quantifiable characteristics of the environment against which environmental quality can be assessed. A "goal" is a goal that relates to desired environmental outcomes and that guides the formulation of strategies for the management of human activities that may affect the environment. A "protocol" means a protocol that relates to the process to be followed in measuring environmental characteristics to determine whether a particular standard or goal is being achieved, or the extent of the difference between the measured characteristic of the environment and a particular standard or a particular goal. "Guidelines" give guidance or possible means for achieving desired environmental outcomes.
8. This does not necessarily mean equivalent outcomes, merely consistent standards of protection and consistent goals.
9. Schedule 4 IGAE, cl 1 ' NEPCA (Cth), s 16.
10. NEPCA (Cth), s 17.
11. NEPCA (Cth), s 18. The specified period of public consultation must be at least two months.
12. The Commonwealth has a power of veto not enjoyed by most other jurisdictions. Section 21(1) NEPCA provides that a Measure is a disallowable instrument for the purposes of s 46a of the Acts Interpretation Act 1901. Western Australia, which initially was not prepared to compromise State Rights by joining the Council, came on board some months after the other participating jurisdictions but only after reserving to itself a power of veto which other States do not have.
13. NEPCA (Cth), s 15.
14. A NEPM must be consistent with s 3 of the IGAE.
15. Other NEPMs may be prepared on ambient marine, estuarine and fresh water quality, the protection of amenity in relation to noise (but only if differences in environmental requirements relating to noise would have an adverse effect on national markets for goods and services), and motor vehicle noise and emissions. Interestingly, provision for a NEPM on ground water quality was not included.
16. The Council, at a meeting on 26 June 1998, authorised its Committee to release a discussion paper on Used Packaging Materials to key stakeholders in order for them to make submissions on it. The paper is provided as the basis for discussion about what the NEPM should include. Written submissions on the paper were to be received by 14 August 1998. As yet, a draft NEPM has yet to be produced.
17. A discussion paper on the Assessment of Contaminated Sites was released in July 1998. This NEPM was scheduled to be completed by the end of 1998.
18. Currently, data from trials of the NPI can be found on the internet at www.environment.gov.au/net/npi.html
19. Data from the first reporting year is expected to be available in the year 2000. The database will fulfill several roles. It will provide an overview of the sources of pollution for any area of Australia, identify specific sources of pollution and provide information about the polluting substances concerned including their common uses and effects. A user will be able, for example, to isolate the pollutant they wish to investigate and then use maps to identify the sources (business or domestic) and quantities of the pollutant emitted in their area.
20. Greater accessibility of the NPI is to be achieved by the provision of computers loaded with the database in public places such as municipal libraries and local government offices. Whilst the database is intended to be "user-friendly" and accessible to people without training, placement in such areas allows staff to assist members of the public who wish to access the information should it be necessary.
21. National Environment Protection Council, Information Bulletin, Proposed National Environment Protection Measure -National Pollutant Inventory, December 1996, 1.
22. The Toxic Release Inventory in the United States deals only with point source emissions.
23. No facility is required to report, however, until an Industry Handbook, designed to provide a step by step guide to estimating emissions is produced for that industry sector.
24. These diffuse sources include motor vehicle emissions, small industrial and commercial businesses like service stations and dry cleaners, and domestic sources such as lawn-mowing, paint, fuel combustion, and vegetation. Inclusion of these sources was widely supported in the consultative phase of the NPI.
25. This is not formally part of the Measure.
26. The MOU was signed on 27lh February 1998.
27. Clause 3.2
28. " Senator Robert Hill, Federal Environment Minister, as quoted in the National Environment Protection Council Communique, Landmark Agreement for All Australians, 27th February, 1998
29. M USA Office of Pollution Prevention and Toxics, Toxics Release Inventory: Community Right to Know, May 1998, http://www.epa.gov/opptintr/tri/index.html 30 Senator Hill has commented "the data will... help governments and industry to design better and more effective control programs", op cit n 28.
30. The establishment of pollutant inventories was recommended in Agenda 21, an agreement negotiated at the Rio Earth Summit in 1992. The inventory will particularly, it is hoped, assist Australia, to meet its obligations regarding the reduction of greenhouse gases.
31. Clause 5.
32. Schedule A, Table I. An extensive technical process to identify substances of concern in Australia was completed prior to the Measure being made.
33. Clause 33.
34. It should be noted that our smaller industry sector uses and emits fewer substances than United States industry. Nevertheless, environmental groups have argued that over 200 toxic chemicals should be listed on the inventory if it is to be effective.
35. Whilst few international schemes include transfers, Australia had the opportunity to be a leader in this regard. Transfers were included on the draft NPI as a core provision and the Commonwealth government was very keen to include this information on the NPI. However, numerous public submissions were received, many of which focussed on the inclusion of transfers. Generally speaking, industry, which made the majority of submissions, was opposed to including transfers mainly on the basis of cost. The subsequent omission of transfer reporting on the final NPI proved to be highly controversial. The inclusion of transfers would aid in an understanding of the whole waste stream.
36. A re-consideration of the issue of whether these emissions should be included on the NPI is expressly provided for in cl 33 of the NPI Measure and should take place in October 1999
37. Environmental groups have argued that the purpose of the inventory is undermined by the exclusion of transfers.
38. Implementation of this requirement by participating jurisdictions may be achieved in various ways. In Victoria, for example, the requirement to provide the information and provisions concerning verification and enforcement will be included in State Industrial Waste Management Policy which is subordinate legislation. w See further ell 7 and 8.
39. Clause 14. The Commonwealth is funding the development of industry handbooks: See cl 5.1.7. Some handbooks are already completed, others are in draft form, for example Fossil Fuel Electric Power Generation Handbook. Clause 5.1.7 of the MOU provides that the Commonwealth will also fund revisions of these handbooks.
40. It has been estimated that annual reporting costs will average approximately $1,700 per facility under limited reporting and $2,000 if reporting is increased to 90 substances (subject to the review in October 1999).
41. Clause 5.1
42. These thresholds range from 10 tonnes per year to 2,000 tonnes per year.
43. Guidelines, as mentioned above, are defined in the NEPCA.
44. Generally speaking, Freedom of Information legislation in Australia requires certain documents including departmental manuals, policies and guidelines to be published and generally available: See for example the Freedom of Information Act 1982 (Cth) Part 11. The Defence Security Manual is, however, not required to be published and is not a public document. This would make any challenge to an exemption decision even more difficult.
45. As Aronson and Dyer have pointed out: "[i]n Australia, the High Court has readily acknowledged the natural justice consequences which can flow from the publication of government guidelines or policy statement, but has refused to make them binding in their own right".
46. M Aronson and B Dyer, Judicial Review of Administrative Action (Law Book Company, Sydney, 1996), p 144.
47. [1985] AC 374.
48. (1987) 75 ALR 218.
49. Justice Shepherd agreed, although he considered the matter non-justiciable because it had been made by Cabinet.
50. para 5.4.3.
51. Environment Protection Agencies or Departments will usually be nominated agencies for this purpose.
52. Freedom of Information Acts in Australia vary throughout jurisdictions. In Victoria, for example, s 34 of the Freedom of Information Act 1982 exempts documents from disclosure if information relates to a trade secret where disclosure would be likely to expose a business, commercial or financial undertaking to disadvantage.
53. Nominated agency is defined in the MOU as the agency of a participating State or Territory which that State or Territory has nominated as having responsibility for the implementation of the NPI. In Victoria, for example, the nominated agency is the Victorian EPA.
54. Paragraph 5.4.1(b).
55. Paragraph 5.4.4.
56. As Aronson and Fanklin have pointed out "[I]t is impossible to lay down any guidelines, even at a high level of generality, as to how hearings should be conducted".' M Aronson and N Franklin, Review of Administrative Action (Law Book Company, Sydney, 1996) at 159-160.
57. Even if principles of procedural fairness do not require an oral hearing, the nominated agency may choose to provide one.
58. (1985) 159 CLR 550.
59. Ibid, at 584.
60. For instance, as a class of citizens in the vicinity of a facility.
61. Until Is' July, 1998 appeals would have been heard by the Victorian Administrative Appeals Tribunal. The AAT was replaced in 1998 by the Victorian Civil and Administrative Tribunal. This new "super tribunal" has assumed the jurisdiction of several tribunals, including the AAT, in what was a major rationalisation of the tribunal system in Victoria. Changes in terminology in the new legislation involve the new tribunal engaging in "review of a decision" instead of hearing "appeals".
62. Victorian Civil and Administrative Tribunal Act 1998 (Vic). This right of appeal, with the introduction of this new legislation, is now subject to leave being granted.
63. Environment Protection Act which provides for review of some EPA decisions by 3rd parties, for example licensing decisions.
64. It should be noted that the NEPC did not receive submissions seeking 3rt party appeal rights during development of the Measure.
65. Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; ALR 257, High Court of Australia (Full Court)
66. According to information in one Draft Emissions Estimation Handbook, emission estimation based on an audit or direct measurement may have an uncertainty rating of 20 per cent: See Draft Emissions Estimation Handbook, Fossil Fuel Electric Power Generation, National Pollutant Inventory Unit, Department of Environment, Queensland, for Environment Australia, April 1998, at page 54. The document was used by industrial facilities in south-east Queensland as part of the trial NPI.
67. Emissions are often worked out by estimating the emission factor. This is the pollutant emission rate relative to the level of source activity. Emission factors are available for many processes based on the results of source tests from an individual plant or facility within an industry or process sector. Emission factors adopted in the NPI are usually averages of American or European industry-wide data and not Australian industry data. However, Australian data are being used where the international material is not accurate, tor example, coal fueled electricity generation.
68. Draft Fossil Fuels Handbook op cit n 69, at 54.
69. Op cit n 41, regarding estimated reporting costs.
70. It should be noted that other inventories, including the United States model, suffer from the same inaccuracy. Australia is adopting many United States techniques.
71. EPA Victoria has let a consultancy to develop this contextual information.
72. Paragraph 5.5.6
73. EPA Victoria has indicated that verification checks will occur for all reports, although not all reports will be subject to in-depth reviews. In depth reviews will be conducted randomly as there are insufficient resources to conduct such reviews for all reports.
74. Clause 25 (3).
75. Clause 25(4).
76. Clause 25(5) (6).
77. Kl Sections 38, 40, 44 and 46.
78. NSW they will be adopted as Protection of the Environment Policies, and in other jurisdictions, excluding the Commonwealth, as Environment Protection Policies. The only jurisdiction not to have Environment Protection Policies is the Commonwealth.
79. P Grobovsky and J Braithwaite, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies (1986) and S Streets, "Prosecuting Directors and Managers in Australia: A Brave New Approach to an old problem?" (1998) 22 MULR 693.
80. By way of comparison, citizen action is quite common in America where most environmental statutes provide for citizen enforcement
81. D Mossop, "Citizen Suits", Alternative Law Journal, 1993, 18(6) at 266
82. One reason advanced in favour of providing for citizen enforcement of environmental laws is to overcome restrictive rules of standing in public law. It has been persuasively argued that allowing private enforcement can compliment existing regulatory efforts and thus given enforcement "teeth". It has also been argued that environmental citizens should be allowed to take action to protect the public interest in environmental quality because to do so benefits society as a whole. As Sax has commented "It is extraordinary for government to take the position that citizens - who have the most direct stake - should have no significant role to play in the determination of their environmental destiny. Is pursuit of the public interest to be the exclusive preserve of a professional bureaucracy?"
83. J Sax, "The People, No - Environment and the Bureaucracy" (1971) The New Republic, I9lh June, p 10.
84. NEPCA (Cth), s 24.
85. As the Commonwealth is funding the NPI program it will very likely put considerable pressure on participating jurisdictions to comply. Unfortunately, as discussed below, the Commonwealth may be on somewhat shaky ground given its own history and attitude to compliance with environmental laws.
86. In Victoria, for example, the use of Infringement Notices and Breach of Policy Notices has already been mooted as possible additional enforcement measures, should available means prove insufficient.
87. National Environment Protection Council, Draft National Environment Protection Measure and Impact Statement for Ambient Air Quality, 21 November 1997, p 14.
88. National Environment Protection Council, Ambient Air Quality, Final Impact Statement for the Ambient Air Quality National Environment Protection Measure, 26 June 1998, p iii.
89. As might be expected, the community and industry response to the draft AAQ Measure was varied. Industry wanted lower standards, whereas environmental groups claimed that the standards were too low and should be significantly increased. Environmental groups also wanted the AAQ Measure to impose penalties on jurisdictions which failed to comply with the NEPM. For example MIM Holdings Pty Ltd and the Chamber of Minerals and Energy of WA were concerned that the standards set by the AAQ would be used for point source control. They submitted that it should be made clear in the NEPM that the standards are not mandatory or alternatively change the standards to either goals or guidelines. MIM Holdings Limited was particularly concerned that the NEPM process lacked adequate due diligence, which led to draft proposals for sulphur dioxide, lead and particulate matter which are inappropriate. MIM Holdings Limited argued that if implemented, the Air NEPM would severely compromise its operations and affect its export earnings and therefore the job security at its facilities. In contrast, the Queensland Conservation Council submitted that South East Queensland needed more monitoring stations and that therefore monitoring should be compulsory. It also argued that the NEPM should be extended to include ecological protection. See further Final Impact Statement, page 15.
90. The Monitoring Protocol is a part of the NEPM and sets out the procedures to be followed in establishing ambient air quality monitoring stations.
91. Final Impact Statement, p ii.
92. Ibid at 5.
93. Whilst the Final Impact Statement states that small settlements (less than 25,000 people) were deemed to have acceptable air quality and were therefore not required to be monitored, it also says that the exception to this is where there is a major pollutant source. However it later states, on page 5, that the "NEPM monitoring protocol does not apply to monitoring and controlling peak concentrations from major sources such as heavily trafficked roads and major industries. Any monitoring of these major 'point sources' continues to be the responsibility of each individual jurisdiction and is outside the scope of the NEPM". A report prepared by an official working group on the monitoring protocol, consisting of one representative of each of the jurisdictions, said that the protocol is "aimed at providing information and assurance on the quality of ambient air to which the general population is exposed. Thus monitoring for the NEPM is not intended to cover exposure of individuals in the immediate vicinity of pollutant sources". This is qualified later in the same report to state that performance monitoring stations should not be located next to localised pollutant sources. Although if a region has more than 25,000 people, then a monitoring station may be located within that region, but away from a major pollutant source arguably so as not to obscure the results. See Report of the NEPM for Air Quality Monitoring Working Group, 12 March 1998.
94. AAQ NEPM Part 4.
95. Ibid at cl 5.
96. Ibid at cl 6.
97. Final Impact Statement p vi. The PRC will comprise a member from each jurisdiction as well as two nominees from industry and the environment movement, and one from local government.
98. Ibid at 5.
99. Ibid at 46.
100. Whilst there is no obligation to do so, Victoria will include AAQ ambient concentrations information on the NPI.
101. Ibid at p ii.
102. A number of submissions made on the Draft Impact Statement pointed out that the "goal" of the NEPM merely reinforces the status quo as the information suggests that for much of Australia, the proposed NEPM standards have already been achieved.
103. Final Impact Statement, p 5.
104. Although this is what the PRC is designed to guard against.
105. Final Impact Statement, p 17.
106. NHMRC goals do not apply in Victoria or Tasmania. In most cases the standards set by these two States are the same as the other States.
107. Final Impact Statement, p 63
108. Ibid at 62.
109. Ibid at 31.
110. Ibid at ix.
111. Ibid at 93.
112. Ibid at 93
113. The introduction of unleaded petrol and exhaust catalytic converters.
114. Ibid at 35.
115. This presumes that the ambient air quality is currently being monitored in ajurisdiction.
116. Clause 1 of Schedule 4 of the IGAE.
117. NEPCA(Cth),s 15(A)
118. Interestingly, submissions to the Impact Statement were quite critical of it, because it placed a dollar value on human lives.
119. The reason for limiting the NEPM to six pollutants and their impact on human health was that the Council said it was the first Measure on ambient air quality that it had produced (see Final Impact Statement, p iv). This reasoning appears spurious in light of overseas experience in implementing similar ambient air quality schemes. It appears that the reason for limiting the AAQ NEPM has more to do with achieving ownership of the AAQ amongst participating jurisdictions.
120. NEPC Summary of Public Comment on the AAQ Measure, pp 24 and 25.
121. Final Impact Statement, p 5.
122. Clause 18(1) NEPM. Also see above at "Political accountability", p 38.
123. The Air Environment SEPP 1981.
124. Australian Environmental Law News, Issue No 3 1995, "State Implementation of National Environment Protection Measures", p 58 and s 17a(1) of the Environment Protection Act 1970 (Vic) which provides that the Governor in Council may incorporate a NEPM or vary a SEPP or Industrial Waste Management Policy so as to make the policy consistent with a NEPM.
125. "Verification and enforcement, pp 35-38.
126. In Victoria, for example, more efforts with regard to particles will be required.
127. National Environment Protection Council, Draft Impact Statement on Movement of Controlled Waste Between States and Territories, 16 January 1998, p 2. Note that waste is defined in the NEPM to mean any discarded, rejected, unwanted, surplus or abandoned matter alone or intended for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter or sale, whether for value or not (cl 3). Controlled waste means any waste listed in Schedule A List 1 of the NEPM provided the waste possesses one or more of the characteristics listed in Schedule A List 2 (cl 3). "List 1 is comprised of waste categories recognised as hazardous under international agreements, waste categories extracted from National Guidelines for the Management of Waste previously agreed to by ANZECC, and wastes of sufficient concern regarding their potential impact to the environment to require their tracking and appropriate management." (Impact Statement, p 3). List 1 does not cover radioactive waste, as this is covered by State and Territory Legislation.
128. Impact Statement on Controlled Waste, p 12.
129. Ibid at 2.
130. It is interesting to note that Minister Tehan introduced on 11 November 1998, an Environment Protection (Amendment) Bill which proposes to allow the EPA Victoria to recognise transport permits and licences issued by other jurisdictions. It also makes other provisions to improve the transportation of waste system in Victoria.
131. Clause 13(e) NEPM.
132. Impact Statement on Controlled Waste, pp 13-14.
133. Note however that no breakdown of how the Queensland government arrived at these costs was mentioned in the Impact Statement.
134. The various legislation dealing with the handling, disposal and tracking of intrastate and interstate waste in each State and Territory. Waste Minimisation and Management Act 1995 (NSW) and associated Regulations identity facilities and business that must be licensed and provides a definition of controlled waste. (Impact Statement, p 22) In Victoria the Environment Protection Act 1970 (Vic) and its Regulations proscribe for licensed waste management and transport of waste (Impact Statement, pp 23-24). Queensland has proposed an Environmental Protection (Waste Management) Policy under the Environment Protection Act 1994 (Qld). The Department of Environment has established a voluntary manifest tracking system in Queensland based on the ANZECC guidelines (Impact Statement, p 25). The Environment Protection Act 1993 (SA) governs waste management in South Australia (Impact Statement, p 26). According to the Impact Statement (p 28) "no comprehensive hazardous waste tracking framework exists at present in WA"... and "no consolidated list of hazardous wastes is in place in WA, however work has already commenced on comprehensive hazardous waste regulations which are being developed to be consistent with the trust of the draft measure". In Tasmania the primary piece of legislation dealing with the control of hazardous waste is the Environmental Management and Pollution Control Act 1994 (Tas). In 1995 the Northern Territory developed a Waste Management and Pollution Control Strategy which deals with the licensing of contractors dealing with hazardous wastes and the implementation of a waste system in line with ANZECC (Impact Statement, p 30). The two pieces of legislation in the ACT which deal with the control of hazardous waste are the Dangerous Goods Act 1984 (ACT) and the Public Health Act 1928 (ACT).
135. This Act implements the Basel Convention.
136. Clause 8 NEPM.
137. Impact Statement on Controlled Waste, p 36.
138. EPA Victoria has commented that there will be very few exemptions. The plausible possibilities are Albury/Wodonga, Canberra/Queanbeyan and the Queensland and NSW Border along the Gold Coast strip.
139. Clause 13 NEPM.
140. The IGAE Schedule 4, cl 26 and op cit n 6 above.
141. The legislation definition of guidelines and op cit n 6 above.
142. Impact Statement on Controlled Waste, pp 21-22.
143. Ibid at 13.
144. For a list of the benefits that the NEPM will provide, see Impact Statement, p 5.
145. G Meyers, S Potter and G Leane, "Promise or Pretence - Compliance with the Intergovernmental Agreement on the Environment: The National Environment Protection Council (Western Australia) Act 1996", in E Law - Murdoch University Electronic Journal of Law, Vol 4 No 1, March 1997 at 6.
146. Which states that NEPMs will apply as from the date of commencement of a Measure throughout Australia as a valid law of each jurisdiction.
147. Clause 17 states that the Commonwealth and the States will be responsible for the attainment and maintenance of agreed national standards or goals through appropriate mechanisms such as Commonwealth and State Environment Protection Bodies. Section 7(1) of the Commonwealth Act states that "It is the intention of the Parliament that the Commonwealth will, in compliance with its obligations under the Agreement, implement, by such laws and other arrangements as are necessary, each national environment protection measure in respect of activities of the Commonwealth (and its instrumentalities) in a participating jurisdiction". In Victoria, s 7 of the National Environment Protection Council Act 1995 (Vic) is in similar terms.
148. As has been discussed above, in Victoria the AAQ Measure will be implemented as a SEPP and the NPI Measure as an IWMP.
149. For a more detailed discussion about the incorporation of NEPMs in State and Territory Jurisdictions
150. Meyers, op cit n 151 at 11-13.
151. Tasmania has provided in its National Environment Protection Council (Tasmania) Act 1995 for incorporation of NEPMs through s 65. This section states that NEPMs are to be State Policies with the State Policies and Projects Act 1993. This Act creates a framework for sustainable development policies in Tasmania. Penalties are provided for their breach. The NEPMs are taken to have been approved by both Houses of Parliament. (Meyers, op cit n 151 at 9).
152. Meyers, op cit nl 51 at 9.
153. Second reading speech, 8th September, p 9466.
154. This seems inconsistent with the primary aim of NEPMs, that is, providing equivalent environment protection for all Australians.
155. One would assume the intention was for standards to rise rather than fall.
156. Clauses 19 and 20 IGAE.
157. NEPC (WA) Act. ss 22(2) - (6).
158. Meyers, op cit n 151 at 14.
159. Ibid at 13.
160. Commonwealth immunity from state laws is a complex question beyond the scope of this paper. For a more detailed discussion see discussion of the NEPM (Implementation) Bill 1997 Bills Digest, No 113, 1997-98 (http://www.aph.gov.au). The general position taken is that the Commonwealth is immune from State environment protection laws due to the operation of various immunities and inconsistency provisions in the Constitution. Although see Re The Residential Tenancies Tribunal of NSW and Henderson; Ex Parle Defence Housing Authority (Henderson), High Court of Australia, No S75 of 1996, discussed in Australian Government Solicitor (1997), "The Commonwealth's Implied Constitutional Immunity from State Law", Legal Briefing No 36, 30 August 1997.
161. Australian Environmental Law News - Issue No. 3 1995 "State Implementation of National Environment Protection Measures", p 59.
162. National Environment Protection Measures (Implementation) Bill 1998, Bills Digest No 113, 1997-98, p 7.
163. 7(1) where it states "(and its instrumentalities)" and s 7(2).
164. N Pain, "Current Initiatives on National Standardisation of Environmental Standards", Environment Outlook No 2, ACEL, p 307.
165. Section 9(1) of the Bill states that "A provision of a State law implementing a NEPM that applies in a Commonwealth place in a State because of the operation of the Commonwealth Places (Application of Laws) Act 1970 does not extend to activities carried on in that place by or on behalf of the Commonwealth or a Commonwealth authority, except to the extent that it so applies under this Act". Section 9(2) states that "A provision of a State law or a Territory law implementing a NEPM does not extend to activities carried on by or on behalf of the Commonwealth or a Commonwealth authority anywhere other than in a Commonwealth place in a State, except to the extent that it so applies under this act".
166. National Environment Protection Measures (Implementation) Bill 1998, Bill Digest 113, 1997-98, p 8.
167. Ibid at 13.
168. National Interest is defined in the Commonwealth Bill in s 5, to mean a matter concerning Australia's relations with another country, its international obligations, national security, national defence or national emergency. It also means a matter relating to a telecommunications activity authorised by Divisions 2-4 or Schedule 3 of the Telecommunications Act 1997 or the management of aviation airspace or airports and any other matter agreed between the Commonwealth, the States and the Territories.
169. Parts 2 and 3 of the Commonwealth Bill aim to implement NEPMs by means of applied State and Territory legislation to Commonwealth Places and activities. Parts 4 and 5 aim to apply NEPMs by these other means.
170. Clause 10(2).
171. Clauses 13 and 18.
172. Clauses 12(3) and 17(3).
173. Environmental Law Update, CCH, Issue 2, May 1998 at 1.
174. Ibid at 2.
175. A minority report, led by the Australian Democrats recommended significant changes to the Bill. Members of the Labor party also expressed concern. Major issues of controversy were that: NEPMs would not apply to Commonwealth activities routinely, but only after a positive declaration at the discretion of the Commonwealth Environment Minister. That there were inappropriate or no criteria expressed for the exercise of that discretion and the weak enforcement regime established by the Bill: See further Bills Digest no 49, 1998-99, p 9.
176. As a result of the 1998 federal election the Bill lapsed. It was re-introduced into the Senate on 251 November 1998 and passed by the Senate with several amendments on 7/12/98. It was introduced into the House of Representatives on 8/12/98 and passed on 10/12/98.