Tasmania's environmental improvement programs and the "Brown Issues" - Environmental accountability or regulatory capture?

Environmental and Planning Law Journal

Volumn 17, Issue 1, 2000, Pages 24-33

  Marsden, Simon ^a   Gibson, Kathy ^a   Hollingsworth, Carl ^a  

^a UNIVERSITY OF TASMANIA   (Australia)

Author keywords

[No Author keywords available]

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EID: 84884239775     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (74)

1. See RJ Fowler, "'The Brown Issues'-Recent Trends and Developments in Environment Protection Law and Policy" in B Boer, RJ Fowler, and N Gunningham (eds), Environmental Outlook: Law and Policy (Federation Press, Sydney, 1984), pp 162-163.
2. For general definitions of accountability, see D Fuller and B Roffey, "Improving Public Sector Accountability and Strategic Decision-Making", (1993) 52(2) Australian Journal of Public Administration p 151.
3. The exception is when pollution affects people personally and where it is visible. With regard to the history of the treatment and disposal of sewage in Sydney, see D Coward, Out of Sight, Sydney's Environmental History (Department of Economic History, Australian National University, Canberra, 1988). With regard to the development of public opinion to counter environmental harm
4. see R Staib, "Processes in Pollution Management: An Australian Model", (1998) 22(3) Environmental Management pp 393-406.
5. The exception to this is regulation of an industry that will immediately pass regulatory costs onto the consumer in the form of higher prices, or to the shareholder in the form of reduced dividends.
6. The Department of Primary Industries, Water and the Environment (DPIWE). One is appointed for local government experience, one for industry experience, and another for conservation experience; two of its five members are derived from DPIWE.
7. Policies and measures include the National Strategy for Ecologically Sustainable Development, 1992 (NSESD)
8. see http://www.environment.gov.au/epcg/esd/nsesd.htm and the National Environmental Protection measures (NEPMs)-see National Environmental Protection Council Act 1994 (Cth).
9. The State Policy on Water Quality Management 1997, established under the State Policies and Projects Act 1993.
10. The Sewers and Drains Act 1954 and the Water Management Bill 1999.
11. See National Environmental Law Association, Integrated Environmental Management-A Whole-of-Government Responsibility? 18th Annual Conference, Sydney 8-10 September 1999.
12. See DE Fisher, "Environmental Accountability of the Water and Electricity Industries in Australia" (1997) 15(2) Journal of Energy and Natural Resources Law pp 97-128.
13. Enforcement strategies vary considerably within Australia. See P Grobovsky and J Braithwaite, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies (Oxford University Press, Melbourne, 1986).
14. The Commonwealth Constitution Act 1900.
15. The Intergovernmental Agreement on the Environment 1992.
16. See the Environment Protection and Biodiversity Conservation Act 1999.
17. See generally D Fuller, and B Roffey, "Improving Public Sector Accountability and Strategic Decision-Making" (1993) 52(2) Australian Journal of Public Administration pp 149-163.
18. In States the size of Tasmania, it has been argued for some time that it is not possible to maintain existing administrative structures either economically or politically. The Nixon Report of 1997 argued for greater rationalisation, and a reduction in the size of the Tasmanian House of Representatives in 1998 brought an associate reduction in the number of Departments.
19. See P Drucker, The Age of Discontinuity (Heinmann, London, 1969)
20. P Self, Administrative Theories and Politics (Allen and Unwin, London, 1977) (second edition).
21. T Doyle, Environmental Decision-making Under Conservative Governments: the Emergency of Wise Use and the Gang Bank Theory of Nature. Paper presented to the Public Policy Network Conference 1999, "Public Policy for the New Millenium", University of Adelaide, 1999. [Also found as a chapter in Environmental Policy Two, KJ Walker and K Crowley (Eds), (University of New South Wales Press, Sydney, 1999] Doyle discusses the inadequacy of "roundtable" discussions conducted by Western Mining Corporation regarding Olympic Dam.
22. T Doyle, Environmental Decision-making Under Conservative Governments: the Emergency of Wise Use and the Gang Bank Theory of Nature. Paper presented to the Public Policy Network Conference 1999, "Public Policy for the New Millenium", University of Adelaide, 1999. [Also found as a chapter in Environmental Policy Two, KJ Walker and K Crowley (Eds), (University of New South Wales Press, Sydney, 1999] Doyle discusses the inadequacy of "roundtable" discussions conducted by Western Mining Corporation regarding Olympic Dam.
23. See M Briody and T Prenzler, "The Enforcement of Environmental Protection Laws in Queensland: A Case of Regulatory Capture?" (1998) 15(1) Environmental and Planning Law Journal p 55.
24. R Sullivan, K Zeise and J Smith, "Establishing Emission Estimation Techniques for Australia" in Proceedings of 14 International Clean Air Environment Conference, 14-18 October 1998, Melbourne (Clean Air Society of Australia and New Zealand, Mitcham, Victoria, 1998), pp 148-152.
25. See generally G Bates and Z Lipman, Corporate Liability for Pollution (Law Book Company, Sydney, 1998). As a specific example, see the discussion of the water industry in New South Wales
26. in R White, "Environmental Criminology and Sydney Water" (1998) 10(2) Current Issues in Criminal Justice pp 214-219.
27. Recent cases have found local authorities liable in negligence for failing to properly exercise powers conferred on them in relation to risks to health and property, which were known or should have been known to them or to their officers. See Pyrenees Shire Council v Day (1998) 1992 CLR 330 and Ryan v Great Lakes Council (1999) FCA 177; both were cases concerning regulation of sewage works. Whether or not the defence of statutory authority would succeed regarding the councils' implementation of EIPs would be a matter for the courts.
28. See generally, R Douglas and M Jones Administrative Law: Commentary and Materials, (Federation Press, Sydney, 1999). The role of the Tasmanian Resource Management and Planning Appeal Tribunal is considered briefly below.
29. Policies and measures include the National Strategy for Ecologically Sustainable Development, 1992 (NSESD)
30. Section 2.2.
31. Section 2.3.
32. Section 2.4. See also RJ Graham, "The Role of Local Government" (1993) 2(3) Environment South Australia pp 12-13; this is a summary of the report prepared by TASQUE of the University of Tasmania for the Local Government Minister's Conference in Environmental Management.
33. Section 2.5.
34. Policies and measures include the National Strategy for Ecologically Sustainable Development, 1992 (NSESD)
35. The Principles are found in s 3. They are the precautionary principle, and principles of intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms.
36. Section 3.2.
37. Policies and measures include the National Strategy for Ecologically Sustainable Development, 1992 (NSESD)
38. The key principles are: integrating economic and environmental goals in policies and activities, ensuring that environmental assets are properly valued, providing for equity within and between generations, dealing cautiously with risk and irreversibility, and recognising the global dimension.
39. Section 1.
40. Policies and measures include the National Strategy for Ecologically Sustainable Development, 1992 (NSESD)
41. Sections 9-15.
42. See National Environmental Protection Council Act 1994 (Cth) and National Environmental Protection Council (Tasmania) Act 1995. For recent commentaries
43. See the Resource Management Act 1991.
44. See also the assessment of Linda Pearson in "Incorporating ESD Principles in Land-Use Decision-Making:Some Issues after Teoh" EPLJ 47-53 who quotes G Bates, Environmental Law in Australia (Butterworths, 1995) as authority for the proposition that where environmental harm is a possibility, the principle means the proponent "must prove that harm will not occur, rather than any opponent having to prove that it will" (at 47).
45. See the Sewers and Drains Act 1954 and the proposed Water Management Act 1999, discussed below.
46. The NEPMs are to be taken to be State Policies under the SPPA, see s 12A.
47. Part 3, section 7.1.
48. Division 2A, s 15.1.
49. "Environmental harm" and "pollutant" are defined in s 4 of the policy.
50. This is also defined in s 4 of the policy.
51. Division 2B, ss 16.2 and 16.3.
52. Division 2B, s 18.2(a).
53. They are known as Environmental Management Programs in Queensland. See L Bowie, "The Environmental Management Program Procedure-A Rope to Save a Drowning Business or a Noose Around its Neck?", Paper presented to the Queensland Environmental Law Association Annual Conference, Noosa, May 1999. In New South Wales they are known as Pollution Studies and Reduction Programs.
54. See also the assessment of Linda Pearson in "Incorporating ESD Principles in Land-Use Decision-Making:Some Issues after Teoh" EPLJ 47-53 who quotes G Bates, Environmental Law in Australia (Butterworths, 1995) as authority for the proposition that where environmental harm is a possibility, the principle means the proponent "must prove that harm will not occur, rather than any opponent having to prove that it will" (at 47).
55. See also the assessment of Linda Pearson in "Incorporating ESD Principles in Land-Use Decision-Making:Some Issues after Teoh" EPLJ 47-53 who quotes G Bates, Environmental Law in Australia (Butterworths, 1995) as authority for the proposition that where environmental harm is a possibility, the principle means the proponent "must prove that harm will not occur, rather than any opponent having to prove that it will" (at 47).
56. See also the assessment of Linda Pearson in "Incorporating ESD Principles in Land-Use Decision-Making:Some Issues after Teoh" EPLJ 47-53 who quotes G Bates, Environmental Law in Australia (Butterworths, 1995) as authority for the proposition that where environmental harm is a possibility, the principle means the proponent "must prove that harm will not occur, rather than any opponent having to prove that it will" (at 47).
57. Department of the Environment and Land Management, Annual Report 1994-95. The Department was the predecessor of DPIWE, which combined its functions with the Department of Primary Industries in 1999.
58. The Environmental Protection Act 1973.
59. Consulting Environmental Engineers, Development Proposal and Environmental Management Plan Hobart Sewerage Scheme: Selfs Point to Sandy Bay-(Report for Hobart City Council, 1994).
60. Interview, Mr John Hincston, Manager Engineering Operations, Clarence City Council.
61. Interview, Mr Chris Marlow, Environmental Health Sewerage Engineer, Glenorchy City Council.
62. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
63. Clarence City Council, Sewerage Strategy, Have Your Say (1996).
64. Interview, Mr John Hincston, Clarence City Council.
65. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
66. See Schedule 6, s 5(1).
67. Interviews, Mr Greg Dowson, Environmental Officer and Ms Mandy Haynes, Operations Support Officer, Department of Environment and Land Management.
68. See G Dowson, D Norath and D Ray, Design and Management of Tasmanian Sewage Lagoon Systems (Environment Tasmania, Hobart, 1996), which indicates that the lagoons are impacting on water quality and the protected environmental values of the receiving waters. This is in clear contravention of the State Policy on Water Quality Management 1997 and the proposed Water Management Act 1999. In some instances the requirements of the EIPs are not inadequate in themselves, but they are being blatantly ignored in the knowledge that enforcement is not an issue when the Councils have no resources to deal with the problem. See Interview, Mr Greg Dowson, Environmental Officer, Department of the Environment and Land Management.
69. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
70. Under the provisions of the Resource Management and Planning Appeal Tribunal Act 1993.
71. Department of Environment and Land Management, Annual Report 1994-1995; interview, Mr Greg Dowson, Environmental Officer, Department of Environment and Land Management.
72. M Andrzejczak and R Bogus, The Auditor-General Tasmania, Special Report No 4-Standard of Annual Reporting by Government Departments, (Report for the Tasmanian Parliament, Hobart, 1993), p 1. Thereafter, appeals lie to the Supreme Court of Tasmania; see ss 48 and 49 of Div 3, EMPCA.
73. J Elix and J Lambert, More Than Just the Odd Tree: Report on Incentives and Barriers to Rural Woodland Conservation, Using Grassy White Box Woodlands as a Model, National Research and Development Program on Rehabilitation, Management and Conservation of Remnant Vegetation, Natural Heritage Trust, Research Report, January 1998 at 5
74. T Doyle, Environmental Decision-making Under Conservative Governments: the Emergency of Wise Use and the Gang Bank Theory of Nature. Paper presented to the Public Policy Network Conference 1999, "Public Policy for the New Millenium", University of Adelaide, 1999. [Also found as a chapter in Environmental Policy Two, KJ Walker and K Crowley (Eds), (University of New South Wales Press, Sydney, 1999] Doyle discusses the inadequacy of "roundtable" discussions conducted by Western Mining Corporation regarding Olympic Dam.