The scope and operation of the environment protection (impact of proposals) Act 1974 (Cth)

Environmental and Planning Law Journal

Volumn 14, Issue 3, 1997, Pages 194-206

  Mossop, David ^a  

^a NONE

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EID: 84883885933     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (109)

1. (1976) 50 ALJ 498.
2. R Fowler, "Environmental Impact Assessment: What Role for the Commonwealth?-An Overview" (1996) 13 EPLJ 246.
3. Although the Act commenced on 17 December 1974 its first effective operation was when the first administrative procedures order was notified in the Gazette on 24 June 1975.
4. Section 9 of the Act gives power to make regulations which, in effect, insert in other legislation provisions "requiring or permitting" consideration of environmental affects of taking action or making a decision or recommendation. No regulations have been made under this section. There are two possible explanations for this, one legal and one political. The legal reason is the the broad scope allowed to administrative decision-makers to consider environmental matters when making decisions under legislation unrelated to the environment (Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 at 13-14, 23-24.
5. Peko-Wallsend Pty Ltd v Minister for Aboriginal Affairs (1987) 166 CLR 24 at 39-42. In this regard the references to the contents of an environmental impact statement being irrelevant to the exercise of power under the BuildingfDesign and Siting) Ordinance 1964 (ACT) in Idonz Pty Ltd v National Capital Development Commission (1985)58 LGRA 99 at 128 misconceive the role of the impact statement and are wrong). The political reason is that environmental matters have never gained the political weight given to many other ministerial portfolios and hence it has been politically impossible for an environment minister to modify the legislation within another portfolio.
6. This power has only been used on relatively few occasions (Fraser Island Environmental Inquiry directed 12 July 1975.
7. Environment Inquiry on Uranium Development in the Northern Territory directed 12 July 1975.
8. Ulladulla Hinterland Broadcasting Transmission Station Environmental Inquiry directed 19 December 1989.
9. Shoalwater Bay Inquiry directed 10 May 1993.
10. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
11. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
12. see Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 at 6,26.
13. Kelly (1976) 50 AU 498 at 511-512.
14. Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 469-470.
15. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
16. Amending Acts other than those simply providing for statutory revision were passed in 1975,1987,1988 and 1992. Although some of the amendments will be referred to in the following discussion the principal amendments were as follows: (1975) to limit the objects of the Act relating to financial assistance to the States to direct financial assistance (Environment Protection (Impact of Proposals) Act 1975); (1987) to include provision for public environment reports (Environment Protection (Impact of Proposals) Amendment Act 1987. This Act also implemented the recommendation of the House of Representatives Committee on Environment and Conservation in its report Environmental Protection: Adequacy of Legislative and Administrative Arrangements (Parliamentary Paper, No 261,1979), p 45, that the Minister should reply to requests under s 10 of the Act within three months rather than simply "promptly"); (1988) to exclude from the operation of the Act actions under the World Heritage Properties Conservation Act 1983 (Cth) and the nomination of any property to the World Heritage Committee pursuant to Art 11 of the World Heritage Convention (Conservation Legislation Amendment Act 1988); also in 1988 to implement the recommendations of the Senate Standing Committee on Regulations and Ordinances concerning the. disallowance of statutory instruments (Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act 1988); (1992) to insert a provision deeming impacts on endangered species to be significant (Endangered Species Protection (Consequential Amendments) Act 1992); and also in 1992 to exclude Qantas from the operation of the Act during its privatisation (Qantas Sale Act 1992 (Cth), Sched 1, Pt 1).
17. See Endangered Species (Consequential Amendments) Act 1992 (Cth).
18. Section 5a contains several important features. First the threshold for its application is that the matter could have one of the described effects. As a description of probability the word "could" is a lower threshold than "is likely to" which in turn has been interpreted as being less than "on balance of probabilities will" (Randwick Municipal Council v Crawley (1986) 60 LGRA 277.
19. Jarasius v Forestry Commission (1988) 71 LGRA 79 at 94.
20. Drummoyne Municipal Council v RTA (1989) 67 LGRA 155 at 163). The use of the word "could" suggests a not fanciful or not impossible effect. The second feature worth noting is the relationship between the two described effects. The first is "threaten with extinction" and the second is "significantly impede the recovery of'. It is unclear whether both circumstances could apply to a single species at the same time or whether they are meant to describe alternative situations of a species. The threat of extinction would seem to apply when a species is in decline and the second when a species is on the increase. However an impact on a threatened species will either threaten it with extinction or impede its recovery because one assumes, in the absence of such impacts the tendency of a species is to increase in numbers. That would mean that both effects could apply to a species at the same time and would give the section a less constrained and technical operation.
21. Australia, House of Representatives, Parliamentary Debates, 26 November 1974, p 4082.
22. Th is is referred to by the House of Representatives Comm ittee on Environment and Conservation in its report, Environmental Protection: Adequacy of Legislative and Administrative Arrangements (Parliamentary Paper, No 261, 1979), p 28.
23. Such as the regulations relating to the export of woodchips made under the Export Control Act 1982 (Cth). That the Commonwealth considers such action is covered by the Act is demonstrated by the terms of the exemptions issued in relation to regulation-making activities: see, eg, Exemption of certain actions of Air Services Australia Activities, Commonwealth of Australia Gazette, GN 21, 29 May 1996.
24. Compare Defenders of Wildlife v Andrus 627 F 2d 1238 (1980).
25. The current administrative procedures do not allow for this situation in the definition of "environmentally significant action" (cl 1.1). The closest that they get is the reference to Commonwealth action which has the effect of "promoting or facilitating" action likely to affect the environment to a significant extent. The words "promoting or facilitating" imply some positive action beyond merely deciding not to exercise a restrictive power.
26. As to the use of the term "Australian Government" rather than "Commonwealth Government" see Evans (ed), Labor and the Constitution (Heineman, Melbourne, 1977), p 72.
27. Acts Interpretation Act 1973 (Cth), s 4.
28. But see, in relation to the Administrative Appeals Tribunal, the discussion in the text accompanying n 30.
29. Northern Territory (Self Government) Act 1978 (Cth), s 6.
30. Australian Capital Territory (Self Government) Act 1988 (Cth), s 22.
31. Goodwin v Phillips (1908) 7 CLR 1 at 7, 10.
32. Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276.
33. Saraswati v The Queen (1991) 100 ALR 193 at 204.
34. See the discussion in the text accompanying nn 71-72.
35. See Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270.
36. Section 112 of the Environmental Planning and Assessment Act 1979 (NSW) refers to "an activity that is likely to significantly affect the environment. "
37. See, eg, Kivi v Forestry Commission (1982) 47 LGRA 38.
38. Bailey v Forestry Commission (1989) 67 LGRA 200 at 211-212.
39. See discussion in Jarasius v Forestry Commission of New South Wales(9%) LGRA 79at91-92;BaileyvForestry Commission (1989) 67 LGRA 200 at 211-212.
40. See also Goose Hollow Foothill League v Romney 334 F Supp 877 at 879 (1971).
41. Hiram Clarke Civic Club v Lynn 476 F 2d 421 at 426-427 (1973). It might be argued that the insertion of s 4a in the Act in 1988 which ensures that action taken under the World Heritage Properties Conservation Act 1983 (Cth) is not subject to the Act is evidence that the legislature considered that such acts, having a positive environmental effect, would otherwise have been subject to the Act. However the amendment was made in response to the argument in Queensland v Commonwealth (1988)
42. ALR 291 which was that the negative economic impact of action in relation to a world heritage area had not been assessed and that this was a significant effect on the environment for the purposes of the Act. Therefore the insertion of s 4a does not necessarily result from the acceptance of both "positive" and "negative" effects as falling within the scope of the Act.
43. Compare the equivalent reference in the Environmental Planning and Assessment Act 1979 (NSW) where the reference in s 111 to "fullest extent possible" does describe the degree to which environmental matters must be taken into account.
44. The Oxford English Dictionary (2nd ed, Clarendon Press, 1989).
45. Potter v Neave [1944] SASR 19.
46. Williams v Stewart [1944] SASR 254.
47. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
48. Section 8 provides: "Each Minister shall give all such directions and do all such things as, consistently with relevant laws as affected by regulations under this Act, can be given or done by the Minister" to ensure that the procedures under the Act are given effect to by departments or authorities for which the Minister is responsible and that any final environmental impact statement or public environment report and any suggestions or recommendations therein are taken into account by any such department or authority in matters to which they relate.
49. Queensland v Commonwealth (1988) 77 ALR 291 at 296
50. ALJR 143 at 146. It would also have been open for the plaintiff to argue that the term "affect" included both positive and negative affects on the environment (see below) but that, for political reasons, would have been less attractive: see Toyne, The Reluctant Nation (ABC Books), Ch 5. As to what constitutes the environment for the purposes of environmental impact assessment see, Coastal Waters Alliance v EPA (1996)
51. LGERA 136 at 147-151,157-158.
52. The definition of "environment" is not a reference to a locality or jurisdiction. It might be a reference to a "matter" or a "thing. " However these would appear to be references to property because of the reference to "of the Commonwealth" at the end of the subsection (but see Wanganui-Rangitikei Electric Power Board v A ustralian Mutual Provident Society (1934) 50 CLR 581 at 607,612-613). The non-applicability of the section is consistent with the fact that the provision is a reflection of the common law on the subject which was a general presumption against extra territoriality based on the "comity of nations. " Because the effect of the broad definition of environment is only to affect Commonwealth or Commonwealth authorised actions beyond its jurisdiction there is no conflict with the sovereignty of other nations and hence the policy rationale behind the common law presumption does not come into play.
53. Birmingham University v Federal Commissioner of Taxation (1938) 60 CLR 572.
54. Jackson v Federal Commissioner of Taxation (1920) 27 CLR 503.
55. Pearce and Geddes, Statutory Interpretation in Australia (4th ed, Butterworths, Sydney, 1996), p 170.
56. See also the discussion of this issue in Senate Standing Committee on Environment, Recreation and the Arts, Environmental Impact of Development Assistance (1989), pp 55-59.
57. The principal changes brought about by the remaking of the procedures in 1987 were as follows: Include the references to and requirements for Public Environment Reports (PERs) for which provision was made by the Environment Protection (Impact of Proposals) Amendment Act 1987 (see in particular cl 4.2). Specify that the Minister or department in making the decision as to whether to require an Environmental Impact Statement (EIS) or PER must take into account any environmental assessment action by a State or the Northern Territory (cl 3.1.2(b). Include references to the Northern Territory where there are references to the States (but not references to the Australian Capital Territory). Provide certain additional powers to the Minister for the Environment (cl 3.1.4 power to make recommendations where no EIS or PER required; cl 3.5.1 to revoke requirement for EIS or PER; ell 6.6.1-6.6.3 to require discussions between proponent and department or proponent and the public). Require the Minister to provide reasons for certain decisions (cl 3.1.5 not to require EIS or PER; cl 3.5.2 to revoke requirement fo; EIS or PER) and publish notice in the Gazette of certain actions (cl 3.4(b) direction to require EIS or PER cl.3.5.2 notice of revocation of requirement for EIS or PER) or make available to the public certain documents (cl 9.1.4 report by department on submissions; cl 9.3.2 ministers' comments, suggestions or recommendations to the action Minister; cl 10.1.3,10.2.2 review by department of environmental aspects of proposed action and any recommendations or suggestion made by the Minister as a result). Require the proponent to consult with the Department throughout the preparation of the EIS or PER to ensure that it is acceptable in terms of the mandatory content requirements (in ell 4.1 or 4.2). Requiring action ministers to ensure that suggestions or recommendations made following a review of environmental aspects of a proposed action by the department are taken into account (cl 10.3) and allowing the Minister to require a PER following a review. Providing for agreements with a State or the Northern Territory in order to facilitate joint assessment of proposed actions (ell 12.2.1-12.2.2).
58. Principally to clarify the threshold requirement for referral of a proposal to the Minister for the environment by deleting the reference to proposed action and replacing it instead with the concept of "environmentally significant action. " The changes also made clear the effect of previous environmental assessment under the Act for related actions. They also allowed permission to continue ongoing operations even though the procedures would not be complied with before the decision to continue the actions was made (cl 1 a).
59. South Australia v Tanner (1989) 166 CLR 161 at 164, 178179.
60. Municipal Officers ' Association v Lancaster (1981) 37 ALR 559 at 579; but compare the approach taken in Tickner v Bropho(1993) 114 ALR 409.
61. The correct principle was wrongly applied in Idonz Pty Ltd v National Capital Development Commission (1985)58 LGRA 99 at 128 to the Building (Siting and Design) Ordinance 1964 (ACT).
62. 42 USC s 4321-4370d (1994).
63. Australian Conservation Foundation v Commonwealth (1981) 146 CLR 293 at 524-525.
64. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
65. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
66. Where the applicant is not a "person" (ss 5(1), 6(1), where the decision is specifically excluded from review (Sched 1) or where there is no "decision. under an enactment" (s 3(1).
67. Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 546.
68. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
69. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
70. See also Friends of the Oldman River Society v Canada (Minister of Transport) (1992) 88 DLR (4th) 1 at 20.
71. Prior to the amendment of the administrative procedures in 1995 there was some doubt as to the interpretation of the threshold requirement for designation. Where the Commonwealth authorised an action rather than undertaking it itself the question arose whether the "matter" was the authorised action or the authorisation itself (see Administrative Procedures 1987, cl 1.1, definition of "proposed action" and s 5 of the Act which refers to matters in both s 5(1) and (2). The only significance of this was in determining whether only those matters which had a significant effect on the environment needed to be designated or whether all Commonwealth actions needed to be designated. If the matter was the Commonwealth action (ie the actions referred to in paras (a)-(g) then only through the rather forced but pragmatic interpretation of the words of s 5 and the procedures could the conclusion that only those actions affecting the environment to a significant extent needed to be designated be reached (see Botany Municipal Council v Australian Postal Corp (1989) 69 LGRA 86 at 93; cf Tasmanian Conservation Trust v Minister for Resources (1995) 55 FCR 516 at 536-537). On the other hand if the relevant matter was the authorised action then the requirement that it have a significant effect on the environment before designation was required flowed more easily from the language of s 5 and the procedures. The orthodoxy and administratively more attractive view was that only matters affecting the environment to a significant extent required designation. That was confirmed by the amended administrative procedures which disposed of direct reliance on s 5 of the Act and introduced into the procedures the concept of "environmentally significant action. "
72. The reference to "satisfied" in cl 1.2.1.
73. See the discussion of whether or not "significant effect" was a question of jurisdictional fact in Tasmanian Conservation Trust v Minister for Resources (1995) 55 FCR 516 at 537539. It is worth noting that in s 5 the object of the Act is to ensure that all matters which (in fact) affect the environment to a significant extent be considered and taken into account, not merely those which a Minister considers have that effect.
74. Clause 1.2.1(b).
75. Seed 1a. 1.2.
76. Tasmanian Conservation Trust v Minister for Resources (1995) 55 FCR 516.
77. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
78. See Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192.
79. "[A]s early as practicable, " cl 1.2.1, discussed above.
80. See also Preston's comments to similar effect concerning the operation ofs 112 of the Environmental Planning and Assessment Act 1979 (NSW): B Preston, "The Environmental Impact Statement Threshold Test: When is an Activity Likely to Significantly Affect the Environment?" (1990) 7 EPLJ 147 at 150.
81. Natural Resources Defense Council v Grant 341 F Supp 356 at 367 (1972).
82. Citizens Organized to Defend the Environment Inc v Volpe 353 F Supp 520 at 540 (1977).
83. Manly v Kleindienst 471 F 2d 823 at 830-831 (1972). See also Norway Hill Preservation and Protection Association v King County Council 552 P 2d 674 at 680 (1976).
84. Drummoyne Municipal Council v RTA (1989)67LGRA 155 at 163.
85. Bailey v Forestry Commission (1989) 67 LGRA 200 at 211-212.
86. Rundle v Tweed Shire Council (1989) 68 LGRA 308 at 331-332.
87. Tasmanian Conservation Trust v Minister for Resources (1994) 55 FCR 516 at 540-543.
88. Randwick Municipal Council v Crawley (1986) 60 LGRA 277.
89. Jarasius v Forestry Commission (1988) 71 LGRA 79 at 94.
90. Drummoyne Municipal Council v RTA (1989) 67 LGRA 155 at 163. Compare Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees' Union (1979) 42 FLR 331 at 339, 346.
91. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
92. Administrative procedures,-cl 3.1.1.
93. Clause 3.1.2(b).
94. Clause 3.1.3.
95. See, eg, Marrickville Council v Ministerfor the Environment Sport and Territories (unreported, federal Court, Kiefel J, 25 September 1996).
96. R v Toohey Ex parte Northern Land Council (1981) 151 CLR 170.
97. Padfield v Minister for Agriculture, Fisheries and Food[1968] AC 997.
98. Shrimpton v Commonwealth (1949) 69 CLR 613 at 619621.
99. Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 75.
100. Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 at 725-726.
101. Clauses 4.3,4.4.
102. Clause 4.5.
103. Such as, " eg, the power to grant exemptions from the administrative procedures.
104. Compare Guthega Developments Pty Ltd v Minister (1986)
105. NSWLR 353 at 366-367.
106. Jarasius v Forestry Commission (1987) 71 LGRA 79 at 96.
107. State of California v Block 690 F 2d 753 at 761 (1982).
108. (1995) 55 FCR 516. These exemptions and the reasons for them are described in Mtlnchenberg, "Amendments to Commonwealth EIA procedures" (1995) 12 EPLJ 235 at 235236. The exemptions themselves are reproduced in Commonwealth of Australia Gazette, No GN 16, 26 April 1995.
109. Exemption of the Australian Capital Territory from the Environment Protection (Impact of Proposals) Act 1974, Commonwealth of Australia Gazette, No GN 43,2 November 1994; exemption of the Northern Territory of Australia, Commonwealth of Australia Gazette, No GN 21, 29 May 1996; exemption of decisions in relation to the Ranger Project Area, Commonwealth of Australia Gazette, No GN 21, 29 May 1996; exemption of certain actions of Air Services Australia, Commonwealth of Australia Gazette, No GN 21, 29 May 1996. The power to grant exemptions was considered in Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281.