senate - aph

COMMONWEALTH OF AUSTRALIA

Official Committee Hansard

SENATEENVIRONMENT, COMMUNICATIONS,

INFORMATION TECHNOLOGY AND THE ARTSLEGISLATION COMMITTEE

Reference: Environment Protection and Biodiversity ConservationBill 1998

FRIDAY, 12 MARCH 1999

ADELAIDE

BY AUTHORITY OF THE SENATE

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SENATE

ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY ANDTHE ARTS LEGISLATION COMMITTEE

Friday, 12 March 1999

Members: Senator Eggleston(Chair), Senators Allison, Bishop, Bolkus, Payne and Tierney

Participating members: Senators Abetz, Bartlett, Boswell, Bourne, Brown, Brownhill, GeorgeCampbell, Carr, Colston, Coonan, Faulkner, Harradine, Lees, Lundy, Margetts and Schacht

Senators in attendance:Senators Allison, Bolkus, Eggleston and Margetts

Terms of reference for the inquiry:Environment Protection and Biodiversity Conservation Bill 1998

WITNESSES

JOHNSON, Mr Andrew William, Program Manager Planning and StrategicDevelopment, Primary Industries and Resources SA . . . . . . . . . . . . . . . . . . . . 273

MARTINS, Mr Joe, Senior Environmental Officer, Primary Industries and ResourcesSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

WICKES, Mr Roger Barrington, Director Sustainable Resources, Primary Industriesand Resources SA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

DYSON, Ms Megan Frances Napier, Executive Adviser, Department for Environment,Heritage and Aboriginal Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

SCANLON, Mr John Erik Linder, Chief Executive, Department for Environment,Heritage and Aboriginal Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

RUDD, Mr William Lloyd, Managing Solicitor, Administration and Environment,Crown Solicitor’s Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

FOWLER, Professor Robert John, Director, Australian Centre for Environmental Law,University of Adelaide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

GARRETT, Mr Clinton (Private capacity) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

DONALD, Mrs Ngoi Ngoi, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreter . . . . . . . . . . . . . . . . . . . . . . 303

JINGO, Mr Johnny, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreter . . . . . . . . . . . . . . . . . . . . . . 303

TEAMAY, Mr Malya, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreter . . . . . . . . . . . . . . . . . . . . . . 303

TJAMIWA, Mr Tony, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreter . . . . . . . . . . . . . . . . . . . . . . 303

WILLMOT, Ms Joanne Edith, Chairperson, Ulur u-Kata Tjut a National Park Boardof Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

KEYES, Mr Antony David, Senior Lawyer, Central Land Council . . . . . . . . . . . 312

TILMOUTH, Mr Leigh Bruce, Director, Central Land Council . . . . . . . . . . . . . . 312

JOSIF, Mr Paul, Coordinator, Office for Joint Management, Mut itjulu CommunityInc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

WENSING, Mr Edward George, Acting Policy Manager, Environment and Planning,Australian Local Government Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328

JEFFRIESS, Mr Brian Charles, President, Tuna Boat Owners Association ofAustralia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

MATTINGLEY, Dr Christobel Rosemary (Private capacity) . . . . . . . . . . . . . . . . 351

NEWLAND, Mr Nicholas Paul, Chairman, Foundation for Rabbit Free Australia 351

Friday, 12 March 1999 SENATE—Legislation ECITA 273

Committee met at 8.35 a.m.

JOHNSON, Mr Andrew William, Program Manager Planning and Strategic Development,Primary Industries and Resources SA

MARTINS, Mr Joe, Senior Environmental Officer, Primary Industries and ResourcesSA

WICKES, Mr Roger Barrington, Director Sustainable Resources, Primary Industries andResources SA

DYSON, Ms Megan Frances Napier, Executive Adviser, Department for Environment,Heritage and Aboriginal Affairs

SCANLON, Mr John Erik Linder, Chief Executive, Department for Environment,Heritage and Aboriginal Affairs

RUDD, Mr William Lloyd, Managing Solicitor, Administration and Environment, CrownSolicitor’s Office

CHAIR —This is the public hearing of the Senate Environment, Communications,Information Technology and the Arts Legislation Committee. Today’s hearing in the OldMeeting Hall here in Adelaide is part of the committee’s inquiry into the EnvironmentProtection and Biodiversity Conservation Bill 1998. I welcome Mr John Scanlon, Ms MeganDyson, Mr William Rudd, Mr Joe Martins, Mr Andrew Johnson and Mr Roger Wickes. Doesanyone have any comment to make on the capacity in which they appear?

Mr Scanlon—I am representing the South Australian government for the purposes of today’shearing.

CHAIR —Thank you. The committee prefers all evidence to be given in public but you mayat any time request that your evidence, part of your evidence or answers to specific questionsbe given in private and the committee will consider any such request. I point out, however,that evidence taken in camera may be subsequently made public by order of the Senate. Thecommittee has before it submission No. 523 dated 31 August 1998. Are there any alterationsor additions you wish to make to the submission at this point?

Mr Scanlon—No, Senator.

CHAIR —I now invite you to make an opening statement. At the conclusion of yourremarks, the senators will ask you questions. Please proceed.

Mr Scanlon—Thank you, Senator. As you indicated, the South Australian government hasput forward a written submission in relation to this inquiry and it is the 16-page submissionthat you have just referred to. What the government has sought to do there is to be constructivein its comments in relation to the bill. The submission highlights areas where the governmentis supportive of certain aspects of the bill, but then goes on to express a number of concernsin relation to aspects of it. Where we have outlined those concerns, we have also maderecommendations about what changes we say could be made to the bill to allay those concerns.

South Australia did actively participate in the review of roles and responsibilities in relationto the environment and is a signatory to the heads of agreement document that I note isreferred to in the second reading speech by Senator Hill. The South Australian governmentrecognises that the review of Commonwealth environmental legislation is clearly warrantedand, in fact, the South Australian government over the past six or seven years has been activein reviewing all of its environmental legislation, be that environment protection legislation,

ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS

ECITA 274 SENATE—Legislation Friday, 12 March 1999

water resources legislation, development control legislation or dispute resolution through theestablishment of an Environment Resources and Development Court in this state.

To the South Australian government it appears that there are two fundamental conceptswhich appear to underpin the bill, and they are the identification of matters of nationalenvironmental significance as being the areas which will trigger Commonwealth intervention,and also the use to be made of bilateral agreements. They are two concepts that, from ourperspective, seem to underpin the bill, and the South Australian government supports both ofthose concepts; that is, the concept of matters of national environmental significance beingused as a means of rationalising the current grounds for Commonwealth intervention and, byarticulating them in that way, it places them on a more logical basis. In relation to the conceptof using bilateral agreements through a legislative framework, which we do not currently have,that is supported as a concept to enable accreditation of decisions and approval processes.

As you would have noted, though, Senators, the South Australian government does havea number of concerns in relation to the current bill. They have been articulated in thesubmission and I will very briefly highlight some of those concerns. There is concern inrelation to the capacity to expand matters of national environmental significance throughregulation rather than through amendment to the legislation, and there has been some specificconcern expressed in relation to matters of national environmental significance covering themining and milling of uranium ore, and that has been specifically noted in the submission.

Secondly, the breadth of actions that can be caught by the bill is of great concern to theSouth Australian government. You would be familiar with the breadth of the definition of‘actions’ within the bill and, when one couples that with the lack of definition of ‘significantimpact’, there is a concern on the part of the South Australian government about the breadthof actions that may be covered by this bill. That is particularly so in relation to threatenedspecies and communities and the coverage of that particular matter of national environmentalsignificance, and that has been highlighted in the submission.

Thirdly, in relation to bilateral agreements, these clearly underpin the operational aspectsof the bill, namely giving effect to it in an effective way on the ground. The bill suggests thatthere will be some guidance given to bilaterals through regulation. The South Australiangovernment believes that given bilaterals are so significant to giving effect to the bill, we oughtto have the benefit of proposed regulations at this stage. That is something that has certainlybeen done in South Australia before. For example, with our Development Act review, the actand the regulations came out together so we could understand the full package, or thecommunity could. There are also concerns about the federal minister’s ability to cancel orsuspend bilateral arrangements. That is dealt with, as you are aware, in the bill and there aresome concerns about how that is done.

The South Australian government would like to see bilateral agreements have the capacityfor maximum coverage of state systems so we can make full use of good effective systemsthat are in place in different states, and that may vary. There is also a concern in relation tothe time that may be taken to develop those bilateral agreements. The South Australiangovernment has said that the bill, should it be passed in this or another form, should bedelayed or the commencement of the bill should be delayed until such time as those bilateralagreements are in place, or at least to allow sufficient time for those bilateral agreements tobe negotiated. They are so critical to the scheme of this bill that, if they are not in place beforethe bill comes into operation, there will be great difficulty in terms of approval processes.There have been some concerns in the past in relation to negotiating with the Commonwealthin relation to bilateral agreements.



Fourthly, state involvement in decision making is a concern to the South Australiangovernment, and that is in particular in relation to the listing of threatened species andcommunities and our involvement with the selection process for the scientific committee underthe bill.

Fifthly, the removal of the current triggers: Senators, we are not sure whether or not theconsequential amendments address this. We only just got the other day the EnvironmentalReform (Consequential Provisions) Bill 1998 [1999]. The heads of agreement that was signedoff by governments was underpinned by the assumption that existing Commonwealth triggerswould be removed and replaced by ‘matters of national environmental significance’. We didnot see that reflected in the bill and we expressed a concern about that. It may be that thatis now being tackled, but I cannot say whether that is the case. Finally, there are a numberof miscellaneous things that are addressed within the submission. For example, I am not quitesure how the transitional provisions are going to work until we have got the benefit of seeingthem.

So can I say, Chair, in summary that the South Australian position has been articulatedwithin the written submission. There is clearly merit in reform of Commonwealthenvironmental legislation. Some could argue it is long overdue. We have certainly reformedour legislation here. The South Australian government sees merit in the concepts which it seesas underpinning the bill, being matters of national environmental significance and the use ofbilateral agreements. Through the submission we have, however, expressed concerns regardingthe application of those concepts and a number of critical clauses that will go to theinterpretation of the bill, and those concerns are of such order that the South Australiangovernment does not support the bill in its current form. Thank you.

Senator BOLKUS—Can I start off by asking about your suggestion that the bill’simplementation be delayed for 24 months after assent until all bilateral agreements arefinalised. Have you had discussions with the federal government as to that sort of timetable?

Mr Scanlon—We have certainly had discussions with the federal government about delayinggiving effect to the bill to allow bilateral agreements to come into place. That goes back towhen we had discussions about developing up the heads of agreement, the issue of delayinggiving effect to the bill to allow—

Senator BOLKUS—Have they been responsive at all?Mr Scanlon—I would say there was a concern expressed about what length of time you

would allow for. You would have to limit it in time. You could not just say, ‘The bill doesn’tcome into effect until we’ve got all bilateral agreements in place,’ because that could take avery long time. I think there was some level of support, certainly at the officer level, aboutallowing some period of time to develop bilaterals.

Senator BOLKUS—You mention in respect to nuclear actions your concern that this billmight have some impact and you prefer that it does not. What are your concerns there? Whaton-the-ground problem would you have with the bill as it is currently phrased?

Mr Scanlon—There are a number of concerns expressed through this whole process. Theconcerns are related to several things, some of which have now been addressed in this bill.The position of the South Australian government is that the mining and milling of uraniumore is a mining activity and should be treated as a mining activity similar to any other, butthe Commonwealth has got legitimate involvement when it comes to the export of uraniumproduct, and there is no issue taken with the role of the Commonwealth there. The other issuethat was raised by the South Australian government was that under the existing arrangements



the environment minister would have the opportunity to have some comment on proposedconditions in relation to Commonwealth intervention in relation to activities relating to mining.The proposed bill would give the federal minister for the environment the power to effectivelyveto a decision.

Senator BOLKUS—What if, for instance, there was a proposal to store high-level wastein South Australia? Could you anticipate the federal government having some responsibilityto make decisions in respect of that?

Mr Scanlon—That is not an issue that is being directly tackled. Certainly that steps outsideof what the concern of the South Australian government was. The South Australiangovernment’s concern was really related to the mining and milling. It did not address thequestion of where nuclear waste would be put. I would suggest that that would be an issuethat the federal government would have a legitimate interest in.

Senator BOLKUS—And transport, of course, yes. So that goes to your point aboutsubdivision E on the protection of the environment from nuclear actions as broadly defined.Why then wouldn’t the federal government have some need for a legislative trigger to takean interest in the nuclear industry?

Mr Scanlon—The position that the South Australian government took and the point thatit was trying to stress was that, if you are talking about the mining and milling of uraniumore, that is a mining activity that the South Australian government argues has no broaderconsequences than the mining of coal or the mining of any other product, and that the federalgovernment ought not concern itself with that particular activity. When it comes to certainother activities, be it the export of uranium product or, Senator, as you have said, there maybe suggestions of where nuclear waste may be dumped, those issues go beyond where theSouth Australian government is expressing concern. The export is clearly covered byinternational arrangements to which Australia is a signatory and, as you are aware, there isa whole process in place in relation to that, but the South Australian government concern wasabout not having a trigger in relation to the mining and milling of the ore.

Senator BOLKUS—Could I move on to another topic, and other senators might follow theline on the nuclear industry anyway. You refer to I suppose what can be best described as anunexpected consequence of the definition of ‘significant impact’ and ‘action’. You areconcerned that it might catch other state legislation. Can you give us some examples of whatyou are concerned about there.

Mr Scanlon—Yes. The concern was that the breadth of the definition of ‘action’ is verybroad and we do not have any guidance through the bill as to what might be a significantimpact. I think we highlight it within the submission: is it intended through the definition of‘action’ to include decisions relating to funding or decisions that relate to policy decisions bygovernment? Just how broadly is the definition of ‘action’ intended to extend, theunderstanding being that the definition of ‘action’ would really be restricted to those sorts ofactivities that would be requiring some form of licence approval or consent under existingenvironment and development control laws. So the concern is how far the definition of ‘action’is intended to extend.

Senator BOLKUS—And I presume you have got some legal advice that raises these issues.I wonder, if you do have it, whether we can be given it. It may have to be rewritten, obviously,to accommodate this committee as opposed to your own direct government interest, but Iwould not mind some more information on what you anticipate being the breadth of theseclauses that may have been unexpected.



Mr Scanlon—Yes, we will be happy to provide that.

Senator BOLKUS—Is there any particular area that the South Australian government thinksshould not be the subject of bilaterals? Is there any area that should be of national importance,national interest, and should be kept as such—world heritage, for instance, or anything else?

Mr Scanlon—I suppose the decision as to whether or not to nominate a particular placefor world heritage listing will reside with the federal government, which is consistent with theConvention on World Heritage. The issue as to how you get to the right decision as to whetheror not you nominate and the role of the state is an issue that obviously this state has expressedsome views on, but the decision as to whether or not a nomination is put forward ultimatelyunder the convention will reside with the nation. But if we use world heritage as an example,we would say there could be bilateral agreements put in place to accredit a management planthat had been developed for that world heritage place. If the state is acting consistently withthat management plan, then there will be no need for Commonwealth intervention. Amanagement plan would have been developed and considered consistent with world heritagevalues, signed off by Commonwealth and state, and state processes could apply.

Senator ALLISON—I wonder if I can continue that line of questioning about bilateralagreements. Have you developed a list of the sorts of matters you would expect to be coveredin terms of South Australia by those agreements?

Mr Scanlon—What we are going through at the moment is a process of working with allrelevant state government agencies to identify where the areas are where we believe bilateralagreements may be required. We have not concluded that process because we are waiting tosee which way this bill might go. We are identifying and, for example, the obvious ones aredevelopment act processes, which includes our environmental impact assessment process, andthe Environment Protection Act with our environmental authorisations. They are two, if youlike, very obvious ones where bilateral arrangements will need to be in place, but then we havegot a whole series of other things.

Senator ALLISON—So would you be thinking there would be hundreds or tens or two orthree? What is the general feel for the numbers of them, or is that irrelevant? Could anagreement cover lots of things or could we have lots that cover small things?

Ms Dyson—I think we would envisage a smaller number rather than a greater number,although it may be that in some areas we could be seeking bilateral agreements coveringsubject matter, or particular areas rather than particular legislation. Mr Scanlon has nominatedthe most major areas. There is also fishing and mining legislation. We also have a raft of otherenvironmental protection legislation, such as a Native Vegetation Act and similar legislationwhich covers land clearance, so half a dozen perhaps.

Senator ALLISON—What is your current understanding of the legal status of bilateralagreements?

Mr Scanlon—We have a bilateral agreement in place in relation to environmental impactassessment. As I understand it, that has been agreed through an administrative process ratherthan through a legislative scheme, but the legislative scheme allows that to be given effectto. As I understand, this is the first proposal to actually legislate a framework for bilateralagreements in relation to the environment between the states and the Commonwealth, but Iwill stand corrected on that.

Senator ALLISON—On the subject of the framework of the bilaterals, would you besatisfied if the government produced a framework at the time of the legislation being debated



rather than the bilaterals? The argument, as I understand it, the government puts is that bilateralagreements may continue to evolve and arise. Would you be more comfortable if you couldat least see the framework in place?

Mr Scanlon—Yes, I think we would be. Because bilaterals are so fundamental to givingeffect on the ground to the way in which this bill is going to work, the more information wehave the better. That is why we have made the suggestion that to have the benefit of proposedregulations under the bill which may shape what the bilateral agreement is going to look likewould be very useful. We have been given a sort of pro forma or some form of possiblebilateral just recently through Environment Australia.

Senator ALLISON—When was that?

Mr Scanlon—Just recently, a couple of weeks ago. To see what sort of regulatoryframework would be proposed by the government would be useful, and any work we can doon looking at how these bilaterals may take shape before this scheme comes into effect wouldbe useful, because if we do not have effective bilateral agreements in place for when this billcomes into effect, there could be some quite significant consequences.

Senator ALLISON—There has been a suggestion made that the bilateral agreements shouldaccredit the states to do the assessment but that the approval process should remain with theCommonwealth. What is your view on that?

Mr Scanlon—We believe that there ought to be capacity to accredit both process anddecision. The minister of the day may take a particular view in relation to where a decisionis going to be accredited, but we believe the capacity should be there for accrediting both theassessment process and the ultimate decision as well, and we also believe bilaterals shouldbe broad enough to encompass enforcement provisions as well.

Senator ALLISON—Do you think that bilateral agreements should be made public priorto the agreement on them?

Mr Scanlon—The submission does not address that. Bilateral agreements are agreementsreached between two spheres of government: the Commonwealth government and the stategovernment. Our submission does not address that. I would anticipate that the governmentwould see those arrangements being negotiated between governments. In terms of thosearrangements being public, those agreements having been struck, that will be another issue,but I do not have any direct instruction in terms of the government’s attitude on that. I wouldanticipate the South Australian government would want to negotiate directly and then theycan go public after that.

Senator ALLISON—When it is already stitched up. There has also been the suggestionthat perhaps we should be calling these ‘multilateral’ agreements and that there arecircumstances in which more than one state government might be a party to an agreement,and some regret—I note today we talk with the ALGA—that local government has been prettywell excluded from most of the negotiation. What is your view about (a) including localgovernment and (b) whether there is an argument for multilateral agreements with other states?

Mr Scanlon—I suppose if we are looking at bilaterals that are going to accredit particularprocesses and quite possibly decisions, the scheme, if you like, that is going to be accreditedis determined by state parliament, basically. All of the legislation that sets up all of theprocesses, be they assessment processes or decision making processes, are established by stateparliament.



Senator ALLISON—So will bilaterals come to the parliament for approval before they aresupported or otherwise on the state level?

Mr Scanlon—The bill does not require that.

Senator ALLISON—Well, I am asking you. You are the state government.

Mr Scanlon—Yes. The bill does not require that and I have got no direct instruction onit. I would not anticipate bilaterals going to parliament, but I do not have any brief on that.We have worked within the structure of the bill and the bill anticipates that bilaterals will benegotiated between governments.

If I can follow up that point about the involvement of local government, the federalgovernment and the federal minister would need to be satisfied that the scheme that had beenput in place in a particular state for an approval process or an assessment process or the likewas sufficient to satisfy the Commonwealth’s interest in the matter, and if there are some areasof detail that need to be addressed it is really going to fall upon state government, stateparliament, to address that.

Local government has clearly got a legitimate interest in the outcomes of this because it isresponsible—and particularly in the development control process in South Australia—foradministering a significant proportion of the development act, but that is within the schemeput in place through the act.

Senator ALLISON—But local government was involved initially in the COAG discussions.Now they say they may not sign the heads of agreement, and they are concerned about theirexclusion and the proposals they put forward which do not appear to have been adopted. Haveyou read the ALGA submission?

Mr Scanlon—If you look at the current system, with the current World Heritage (PropertiesConservation) Act, the EPIP Act and others, I do not read them as incorporating a direct rolefor local government, although the ramifications of that legislation impacts on all spheres ofgovernment: Commonwealth, state and local. So there is no issue taken with the legitimateinterest of local government in the legislation and the administration of the legislation bothat Commonwealth and state level, and local government was involved in the discussions aboutthe review of roles and responsibilities in relation to the environment.

But if we are going to focus specifically on the negotiation of bilaterals, I think we wouldsuggest that that ought to be left in the context of the bill between Commonwealth and state.If the state government, be it here or anywhere else, believes that it wishes to engage localgovernment in the negotiation of those bilaterals then that will be up to each state governmentto determine. I think that is fair, and it may well be—and I cannot say yes or no to this—thatstate governments would elect to engage directly local government in those negotiations, givenits role in administering particular legislation like the Development Act, but we would suggestit need not be prescribed in the bill, and that will be a matter for the state government toengage in with its own local governments.

Senator ALLISON—Is it your view that the states ought to be required to comply withinternational obligations in relation to the environment?

Mr Scanlon—As you are aware, the obligations that apply to Australia, through treaties orother matters that it is a party to, reside on Australia as a nation, and states have no directobligation to give effect to international treaties under international law. The state governmenthas always said, though, that it has a responsibility to ensure that it is contributing to givingeffect to Australia’s international obligations, but that is a position the state has taken—that



we believe we ought to contribute to that—and we do contribute to that directly. But, if youlike, at international law the obligation remains Australia’s as a nation and then the statescontribute to achieving that.

Clause 6 of the bill could be read as suggesting that international obligations areautomatically incorporated into Australia’s domestic law and would effectively overrideAustralian legislation. We took issue with that. We did not know if that was the intention; thatis certainly the way it reads. The situation in Australia always has been that internationalobligations are given effect through domestic legislation, be it Commonwealth or state. CanI say that South Australia recognises its role in giving effect to international obligations, butit is not a legal obligation, it is a moral one.

Senator ALLISON—Would you say that this legislation enhances or otherwise theCommonwealth’s ability to comply with its international agreements?

Mr Scanlon—I suppose the Commonwealth is seeking here to identify for itself where ithas a legitimate role in relation to environmental issues and, to a large extent, it has definedits role as relating to its international obligations, be it Ramsar, world heritage, biodiversity,climate change. They are all factored in in one way or another; maybe not directly but throughthe areas that have been identified. I cannot really comment on whether or not this is goingto be more effective than the existing regime. The existing regime is certainly an old regime.It has been around for a long time. It is certainly in need of review.

Senator ALLISON—If you do not have a view about whether or not it does, would youat least argue that it ought? If we can use one example, given that greenhouse emissions isa national problem, should this bill be dealing with Australia’s obligations in respect ofgreenhouse?

Mr Scanlon—It is a question of how you deal with them. I would say that this particularbill does address Australia’s international obligations through a whole raft of treaties that ithas signed. It may not directly refer to a particular convention but it does, on my reading ofit, seek to give effect to international obligations and it is certainly a far more comprehensivescheme in terms of Commonwealth involvement in environmental issues than we currentlyhave, in particular in relation to threatened species and communities. The current threatenedspecies legislation at Commonwealth level only applies to Commonwealth land, which is aboutthree per cent of the country from my recollection, and this particular bill intends to havecoverage right across the nation.

Senator ALLISON—I come back to bilateral agreements again. What is your understandingof the process by which a bilateral agreement will be suspended in the event of a disputebetween the Commonwealth and the states?

Mr Scanlon—I might invite Megan Dyson to speak more fully to this. The negotiation ofbilateral agreements is critical to giving effect to this. We acknowledge that if a state is notgiving effect to a bilateral agreement, there needs to be some way of addressing that. Wewould suggest that it needs to be done in such a way that states have an opportunity to beconsulted and advised and remedy any perceived defect with giving effect to bilateralagreements. The current bill does provide for some level of consultation between state andfederal governments in the event there is a concern but that is the process we would have inmind. Then if the state is clearly in breach of the bilateral agreement, obviously, some actionneeds to be taken. I will ask Ms Dyson if she wants to add to that.

Ms Dyson—I think Mr Scanlon has more or less answered the question, but we have madespecific recommendations in the written submission in relation to at least placing a time limit



on the operation of an emergency suspension and requiring the Commonwealth to go backto the states for consultation—I think it is under clause 58—because it seems at the momentthe bill simply allows the Commonwealth minister to make a unilateral decision to suspendin case of an emergency, which would seem to be a reasonable enough power to have if anemergency does arise, but there is then no requirement for the minister to go back to a stateand consult over whether there should be an actual permanent cancellation and there is no timelimit on the operation of that suspension. The state government has been concerned that thatleads to significant uncertainty in the life of a bilateral agreement.

Senator ALLISON—Given that a suspension would almost certainly be associated witha development which may or may not be under way, what do you see in terms of the processin the bill for dealing with the situation of a suspended project or cancelled project? What doyou see as the legal situation that arises from such an event?

Ms Dyson—I would say that it is not particularly clear. The recommendations foramendment indicate that we do not think it is clear what the status would be for a project thatis currently halfway through an assessment. For example, a developer may be left in limboperhaps. There appears to be a clause protecting action taken pursuant to an approval that hasbeen given under a bilateral which is later suspended, which would afford some comfort toa proponent who is part way through a development, but I think the provisions regarding thelegal effects of cancellation and suspension do need to be better clarified. Our submission goesto some of the detail there.

Senator ALLISON—It has been suggested that bilateral agreements should be the subjectof a regular review. I think three years has been a commonly suggested period of time andthat there ought to be a commissioner for the environment who would do such reviews. Is thatsomething that your government would support?

Mr Scanlon—It is not an issue that has been put to government nor considered by it, soI cannot say it would or would not be supported. I suppose what has been said by thegovernment is that the role of bilaterals is critical and the ability to give effect to thosebilaterals is critical. I think there is already a five-yearly review built into the bill. I might bewrong but from recollection there was a five-yearly review built in and no issue has been takenwith that. Senator, I cannot answer the other issue because it has not been put to government.

Senator ALLISON—Have you commenced the writing of your legislation in anticipationof the Commonwealth legislation?

Mr Scanlon—When I made my brief opening remarks I commented on the reviews of SouthAustralian legislation in recent years. We are certainly giving consideration to our currentlegislative regime as it relates to the environment in all its aspects to see whether or not thisbill may require some changes. But we have actually reviewed significantly environmentprotection, development control, environment courts, and we have had consequentialamendments to a whole raft of other legislation, including the national parks legislation.

We have world’s best native vegetation legislation. We believe that we have a good regimeof environmental legislation in place. We did water resources as well recently. If we need totweak it around to give effect to bilaterals we will have to address that at the time, but wehave been very active in this state in reviewing all environment legislation and we believe wehave a good environment legislative regime in place that has been reviewed over the last sixor seven years. It never comes to an end, though. We are always reviewing it.

Senator MARGETTS—I was wondering, considering you have indicated that the stateshave no obligation under international law, whether or not that would make it stronger for the



case that many people have put up. For instance, greenhouse obligations should be clearlyoutlined in this kind of bill as it is meant to be replacing just about everything that exists. Yousay states have no obligation under international agreements and I guess that means you haveno expectation that you will be required to meet international standards by some sort oflegislation or agreement.

Mr Scanlon—Can I tackle that in a couple of ways. The first one I stated, which I thinkis stating the obvious, is that states are not signatories to international agreements and henceare not bound at international environmental law by those agreements. That is just a statementof fact. In terms of the manner in which states view their obligations, I can only speak forSouth Australia. We do regard ourselves as having obligations, at least in a moral sense, togive effect to international obligations. We take very seriously our view as a state incontributing to Australia meeting its international obligations. For example, as a statedepartment, we are well aware of international obligations. When we are reviewing legislationthey are all taken into effect.

If you look at a number of our acts of parliament that relate to the environment, you willsee that there is reference made, even in the bills, to our contribution to internationalagreements. I just want to draw a distinction between what is the situation in international lawand the way in which we view our role as a state in contributing to meeting our obligationsas a nation.

Senator MARGETTS—I am not completely au fait with the role, for instance, that SouthAustralia has played in meeting Australia’s international commitments on greenhouse. But letus, for instance, say that South Australia was working very hard and very diligently to reducegreenhouse emissions perhaps to the level or below what Australia indicated it was going todo, and another state had scant regard for any international obligations and what the Australiancommunity wanted—which clearly they have said in many polls they do—and was about tosignificantly increase in several different projects their greenhouse emissions. Would that notindicate therefore that there is a role for the Commonwealth to step in so that the job for therest of you was not so difficult?

Mr Scanlon—I suppose the Commonwealth uses a number of different interventions toachieve those sorts of outcomes, be they financial interventions, be they related to a wholeraft of things, and legislative interventions are just one part of that. Greenhouse relates to somany different aspects, as you are well aware, Senator, of activity. It can relate to clearanceof vegetation, it can relate to motor vehicle use, it can relate to what industry is doing. It canrelate to a whole raft of things.

Senator MARGETTS—I agree, yes.

Mr Scanlon—They are all addressed in different ways. Clearly, the Commonwealth hasinternational obligations in relation to greenhouse. The Kyoto protocol has not yet been ratifiedand has not yet come into effect because we have not got the number of signatories, but theCommonwealth government clearly has obligations there. From the South Australianperspective on land clearance, we introduced land clearance controls in 1982 and as a statewe have invested $80 million between 1982 and 1993, I think it is—I might be corrected onthat—in assisting farmers and compensating them for diminution in value. We have protected550,000 hectares of remnant vegetation on private land. That is the only scheme of its sortof that magnitude that has been put into effect in Australia. It is recognised internationally andso we do make a significant contribution in that regard.



Senator MARGETTS—Yes. That is very interesting, but it is a little bit off the point.Australia has signed up to these commitments and there is an assumption that those will bemet—and, of course, there are a number of these different areas where Australia already haslegislation, the Commonwealth government has legislation—and they have an obligation tomeet or to administer their acts. I will go back to greenhouse. In your submission you saymatters of national environmental significance rather than the indirect triggers should be dealtwith. Ironically, when you were talking about greenhouse you were saying they can use theindirect triggers. To me, that sounds inconsistent. It seemed like you were giving the bestargument for the Commonwealth to include in legislation clearly that they do have anobligation to administer, say, greenhouse emissions and that perhaps they should, as they say,be including things like transport, industry, land clearance and so on.

Mr Scanlon—I suppose what I am saying is that the federal government has obligationsat international law and how it discharges them is done in many different ways. What I wassaying is that it has many different interventions. It can intervene through legislative means,financial means—a whole raft of ways that the Commonwealth can give effect to thoseinternational obligations.

Senator MARGETTS—But you, in fact, are arguing against them using what you wouldcall indirect means.

Mr Scanlon—No. I would say you do not have to actually put in the word ‘greenhouse’or ‘climate change convention’ to give effect to the convention. The convention will be giveneffect to in a whole raft of ways through voluntary means, legislative means, financialassistance—the whole range of things. You do not have to actually have the words ‘climatechange’ or ‘greenhouse’ stated in a bill to have a bill that is tackling that in a way that isappropriate for a legislative intervention.

Senator MARGETTS—Surely, though, if you do not mention climate change then the statesare likely to challenge the Commonwealth’s ability to make those legislative requirements.

Mr Scanlon—We cannot, because if the Commonwealth is giving effect to its internationalobligations, it has the capacity under our constitution to legislate.

Senator MARGETTS—I agree with that, yes. But surely they would have to point to thatpoint of international agreement for them not to be challenged by states like Western Australia,for instance. I am not necessarily saying South Australia would.

Mr Scanlon—I will not get into a debate. As you know, there is a whole raft ofconstitutional powers which the Commonwealth can use. One is relying upon giving effectto international agreements and then the Commonwealth government can choose whatevermeans it sees necessary to give effect to that. It is not unusual. International agreements aregiven effect to in many instances through state legislation, or through non-legislative means.There is a whole raft of measures you can take.

Senator MARGETTS—Can I get back to the issue of bilateral agreements. You haveindicated that it is unlikely the South Australian government would be wanting to make thedetails of bilateral agreements available before they were signed. What is the basis of thedecision? Have any of you been involved with negotiating bilateral agreements before?

Mr Scanlon—There has been involvement in relation to bilateral agreements with theenvironmental impact assessment process. There has been involvement with bilaterals or whatI would describe as bilaterals in relation to NHT processes, yes.



Senator MARGETTS—What is the basis upon which South Australia reaches that position?We know, for instance, the vast majority of people in the population believe that governmentsof all types have an obligation to represent them strongly or show strong leadership on theissue of environmental issues and ecological sustainability. So they are your electorate, theyare our electorate, they do not belong to just one party. That is what people are saying againand again. What is the basis upon which the South Australian government would go to abilateral agreement? What is the basis of the decision that the South Australian governmentwould come to? Is it simply government policy—that is, in effect, a party policy onenvironment versus development—or is there a means of making sure those other values thecommunity holds are actually built into your negotiating position?

Mr Scanlon—I suppose the position of the government is going to be determined by theframework set in place by the legislation. The position we will take to the table is: what dowe need to do in order to satisfy the federal government that we are in a position—

Senator MARGETTS—Oh, come now! You would go to the table and say, ‘How can wesatisfy the federal government?’

Mr Scanlon—If we are talking about bilateral agreements, the framework for thoseagreements will be set in place by the legislation and if the legislation—

Senator MARGETTS—Yes, but you would have your own list of druthers, right?

Mr Scanlon—Yes.

Senator MARGETTS—Yes, but where does that list of druthers come from? Where doesthat wish list come from? How do you work out what your values are which go to that listof where you want to go?

Mr Scanlon—Can I just put it this way, just to put it in place: what this bill will say is thatthe Commonwealth will have involvement in certain matters of national environmentalsignificance and it gets involved with actions. That will be dealt with case by case or throughbilateral agreements. The framework for where you can have bilateral agreements will be setin place by the bill and the regulations. What we as a state need to do is say, ‘Where is thecapacity to enter into bilateral agreements? What is the framework we need to comply with?What are the requirements of the legislative scheme?’ So we identify that.

That is what I am saying is our starting point. Where can we have them, or what does thebill or the act, if it comes into effect, require us to do? Then we go with the position of sayingwhether or not our particular scheme satisfies the requirements of the Commonwealthlegislation. So, if you like, that is the position that we will have to take in terms of negotiatingbilaterals. If you want to talk about what are the values of government or what is the viewthat government holds about a whole raft of issues, then I am probably not the person.

Senator MARGETTS—It just seems that maybe South Australia is different from the otherstates. Most of the other states basically are saying, ‘We’d like to be in charge of theenvironment and we’ve got our own ideas,’ which in effect are government policy on theenvironment. So South Australia is different?

Mr Scanlon—No, you are asking me another question. The position of the government andthe position of the South Australian parliament is articulated in a number of ways. It isarticulated through the legislation that has been passed by the parliament. As I said, I believewe have a very strong legislative regime in place. If you want to look at the views of the SouthAustralian parliament and governments of all persuasions, look at what has happened withnative vegetation legislation in South Australia. Look at what we have done with water



resources legislation in South Australia. Look at what we have done with the environmentprotection legislation. Look at the fact we have set up an Environment Resources andDevelopment Court.

Senator MARGETTS—So if it is based on that why would you have to have it secret? Iguess that is what I am trying to get to. What would be the point of keeping that basis ofnegotiation secret if it is simply based on the words that are written already and the basis ofyour legislation? You say you want to see the regs before you go any further. People aresaying that they not only want to see the regs but they want to see the basis of the bilateralagreement, so they are saying, ‘We want to see the colour of your agreement before we arehappy with this legislation.’

Mr Scanlon—I suppose what we are saying is the framework will be set in place by thebill and the regs, and that is all available publicly; our legislation is known as well. If, asgovernments, we are going to negotiate a bilateral agreement, we say those negotiations oughtto take place between governments. In terms of those bilaterals being made public, then Icannot see any issue would be taken with that. They are the bilateral arrangements that arein place, people should know what they are. But the South Australian government believe thatthose negotiations are a matter between governments to determine in the context of thelegislative scheme that is put into effect. So that would be the position of the government:them being made public and, subsequently, whether or not the government of South Australiaor any other state chose to engage a broader sector of the community or chose to engage localgovernment would be entirely open to it. What we are saying is you just do not need toprescribe that in the bill. Leave it to the South Australian government to decide who it decidesto engage in that process. It is not prohibited from doing that; it will be up to it to determine.

CHAIR —Senator Margetts, I think we will have to leave it there because we are out oftime. I would like to thank the South Australian government for appearing before thecommittee, and I assure you the points you have made will be taken into consideration in thereport of this committee. So thank you very much indeed.



[9.24 a.m.]

FOWLER, Professor Robert John, Director, Australian Centre for Environmental Law,University of Adelaide

CHAIR —I welcome Professor Rob Fowler. The committee prefers that all evidence be givenin public but you may at any time request that your evidence, part of your evidence or answersto specific questions be given in private and the committee will consider any such request.I point out, however, that evidence taken in camera may subsequently be made public by orderof the Senate. The commission has before it submission No. 621 dated 9 March 1999. Arethere any alterations or additions you wish to make to your submission at this stage?

Prof. Fowler—No, there are not.

CHAIR —I now invite you to make an opening statement. At the conclusion of your remarksthe senators will question you.

Prof. Fowler—Thank you. I thought by way of opening remarks that I would just say twothings. The first is to invite the committee actually to engage in some visualisation, by whichI mean that I would like you to think about a pyramid and to think of that pyramid as beingcomprised of the entire range of environmental approvals and assessment requirements thatexist in Australia under state and federal laws. This is not meant to be hierarchical in any sensebut if one visualises that pyramid, at the base of it you would find local government makinga very large range of decisions on a day-to-day basis about development matters. You wouldfind in the middle section of the pyramid, state governments routinely exercising powers underdevelopment approval legislation and environment protection legislation. At the moment youwould find at the pinnacle of the pyramid a small range of circumstances in which theCommonwealth currently exercises environmental and approval powers in what I think iswidely acknowledged to be a rather ad hoc matter insofar as it depends on matters such asexport approval, foreign investment approval or financial arrangements between theCommonwealth and the states.

My submission suggests that in the commendable act of proceeding to define moreeffectively, pursuant to the COAG process, those matters of national environmentalsignificance, the bill engages in illusion in the sense that it defines the areas at the pinnacleof that pyramid in which the Commonwealth has a role and certain responsibilities and then,through the mechanism of bilateral agreements, it provides a means for the entire retreat fromthe exercise of those roles and responsibilities. I argue on three grounds—firstly in terms ofthe international obligations which the Commonwealth has assumed across a wide range ofmatters concerning the environment, secondly in relation to the status of the Commonwealthgovernment as a national government exercising responsibility in areas of national relevanceand importance, and thirdly in terms of public expectations as reflected in a wide range ofopinion polls over many years—that that pinnacle of the pyramid should remain firmly inCommonwealth hands. So that is the first point I make by way of introductory remarks.

The second point is somewhat briefer. It is clear that the mechanism of bilateral agreementsis based on a long process now of discussion between governments, leading to theintergovernmental agreement in the first instance and the heads of agreement agreed inprinciple in COAG in November 1997. If one goes back to that COAG agreement of 1997,it is in fact quite obscure in relation to the question of whether the mechanism of accreditationwas intended to extend beyond environmental impact assessment to decision making. I haveread that agreement and it is extremely vague on that matter; it is almost contradictory in itsterms.



The bill is not so. The bill is clear and unequivocal in providing that through the mechanismof bilateral agreements it is possible for the Commonwealth to hand back to the states theresponsibility for making decisions with respect to environmental approvals, in addition to theprocess of environmental impact assessment. Again, I say that the bill therefore goes further,perhaps; it does not just simply implement the COAG agreements. I think in that sense it mayhave gone further than the COAG agreement itself envisaged. Those are my preliminarycomments.

CHAIR —Thank you, Professor Fowler. I would like to just take you up on that issue ofthe Commonwealth responsibility. In fact, the Commonwealth at the top of the pyramidproposes to contract out, if you like, the assessment processes through bilateral agreementsbut the Commonwealth retains to itself and the Commonwealth environmental minister, thepower to approve or disapprove of an assessment. The states may propose an assessment butthe Commonwealth does not necessarily have to accept a state assessment and will make itsown assessment if it so deems fit. So doesn’t that mean that in fact the ultimate power in thedesignated matters of national environmental significance rests with the Commonwealthminister?

Prof. Fowler—It does rest with the Commonwealth minister, and I agree with yourassessment of what the bill provides in that respect. It is possible that the Commonwealthminister may determine that a state’s environmental process would be accredited but theCommonwealth minister would reserve the right to make the final decision, but it is equallypossible under the relevant clauses in the bill that the Commonwealth minister could accreditboth the environmental assessment process and the decision making or environmental approvaloutcome as well. Those are two scenarios which are equally feasible under the bill.

CHAIR —Wouldn’t you agree though that in agreeing to approve an assessment by the state,the Commonwealth minister in effect is assessing the assessment, and if he agrees with theassessment he will accept it?

Prof. Fowler—No, I disagree with that, and I do so based on historical grounds.

CHAIR —But if not, you would be wrong.

Prof. Fowler—There have been in place since the 1970s cooperative arrangements betweenthe Commonwealth and the states which envisage that in certain circumstances theCommonwealth might either allow the state to conduct the whole environmental assessmentprocess and simply accept the outcomes of that, or it may engage in its own separate andadditional evaluation of a project using its own bureaucracy to undertake it. Those arealternatives and at the moment if the environmental assessment process of the state isaccredited under this bill it is possible, and it is probably likely given all that has been saidby the minister and in the consultation paper, that the Commonwealth would not have a hands-on role in evaluation, it would simply agree to accept the outcomes of the state environmentalassessment process. There would be no independent assessment by the advisers to theCommonwealth minister.

CHAIR —But the Commonwealth has the capacity to reject the state assessment, does itnot, and carry out an independent assessment if it so desires? As I understand it, the intentionof this bill is to avoid duplication, to make the process more efficient and nevertheless the finalpower of acceptance or rejection of a proposed outcome lies with the Commonwealth minister.In fact, to many of the people who have made submissions to this committee, that power isan issue, the unilateral power of the minister. And you seem to accept that the minister hassuch power, as many of these people or submitters have suggested in fact he does. As I



understand it, it is the intention of the Commonwealth that that should be the situation, thatthe Commonwealth minister does have the ultimate decision making power in this designatedmatter.

Prof. Fowler—I would submit respectfully that that is not an intention that is evident inthe terminology of the bill. If one reads the bill, one can see in it the capacity for theCommonwealth environment minister, through the process of executing a bilateral agreementwhich could have reference to a class of actions—if those classes of activities are identifiedwithin a bilateral agreement as subject to accreditation vis-a-vis a state environmentalprocess—virtually disengaging from active involvement in the environmental assessment ofthose types of activities and agreeing, through that agreement, to accept the outcomes of thestate process. So it could apply not simply on a project by project basis but whenever aparticular type of proposal comes forward; it might be a pulp and paper mill, it might be arefinery, it might be a power generation station.

CHAIR —That is an interesting point if that is the case, but I do not think that is theCommonwealth’s intention. I think it is the intention that the Commonwealth should havepower of approval.

Prof. Fowler—I would hope that it is not the intention of the Commonwealth, obviously.All I am saying is that the bill at the moment does not guard sufficiently against that as apossible outcome.

Senator BOLKUS—Professor Fowler, first of all thanks for your paper. I found it not justinteresting but it was a good summary of the developments of the law over the last 20 or 30years or so.

Prof. Fowler—Thank you.

Senator BOLKUS—Let’s say that having in one document an analysis of how the law hasdeveloped and then an explanation of how this law unwinds over the last 20 or 30 years willbe useful for the parliament. Following on from what the chairman was asking you about, youasked us to imagine a few scenarios, but can you imagine under the proposed legislation whatpower the federal minister may have to intervene in circumstances such as, for instance, theFranklin River Dam, Daintree, Coronation Hill or Fraser Island, once a bilateral agreementis in place. Will there be any capacity in similar circumstances where in retrospect the broadcommunity now agrees with the decisions taken at that time though they did not agree withthem? Would a federal minister have the capacity to intervene to protect such areas in thefuture?

Prof. Fowler—If I understand the senator’s question correctly, you are asking whetherhaving ceded to a state through a bilateral agreement the responsibility for environmentalassessment and conceivably for making a decision in relation to, say, development affectingthe world heritage site, could the Commonwealth minister then come back and say, ‘Well, Iam sorry, but I think I had better decide this one’?

Senator BOLKUS—That is right, yes.

Prof. Fowler—Yes. I think the bill is particularly obscure on that matter. My reading ofthe bill at the moment is that there is not a clear capacity to retrieve the decision makingresponsibility in a particular instance once a bilateral agreement has been executed, and I makethis point at the end of my submission. There is a clause in there, clause 64, which appearsto be trying to protect decisions that have been made previously under a bilateral agreement.If, for example, a state had approved a particular development under a bilateral agreement,



the subsequent suspension of that agreement or its cancellation should not affect that approval,and that is a perfectly sensible thing.

But I read that clause as conceivably also validating a decision by a state government whichthe Commonwealth was then seeking to overturn. My concern about clause 64 and about thosesections on suspension and cancellation is that they do not explicitly make clear that thedecision to suspend and cancel can be retroactive vis-a-vis a decision that the Commonwealthfinds unacceptable, so that if the Commonwealth gives that power to the state, then it reallyties its hands to accept the outcome.

Senator BOLKUS—Sure. Accepting the outcome is one aspect. Another aspect which isquite critical in any process is the actual process of assessment and scrutiny and review. Isuppose to an extent we have to anticipate what is in the bilateral agreements, but one thingI think we have been told to anticipate is that the Commonwealth will remove themselves fromthat particular part of the process. You may want to take this question on notice. Would youimagine also that if the bilateral agreement had the effect of leaving the processes with thestates in those areas where there is an agreement, the Commonwealth would not have thelegislative power under the legislation that has been supplanted by this legislation to embarkupon the processes that otherwise it could have?

Prof. Fowler—I agree with your assessment. I think that at the moment there is the potentialfor a development which might have a significant impact on a world heritage area, to beaddressed under a bilateral agreement by a state government. If that state government proceedsto make a decision which appears on the face of it not to have given sufficient regard to worldheritage values, it is not clear that the bill could then afford any mechanism for overturningthat decision, even though it was in clear breach of the bilateral agreement. All that theCommonwealth could do would be to suspend that agreement in future.

Senator BOLKUS—In future?Prof. Fowler—And that is my point. Where there has been a breach of a bilateral agreement

in relation to a decision affecting a world heritage site, a Ramsar site or an endangered speciesissue, it does not clearly contemplate that in that situation the Commonwealth could in effectcall in that decision and say, ‘Well, we think it needs to be done again.’ Rather the opposite:in my submission, clause 64 might be read to preclude that.

Senator BOLKUS—You would have just heard the state government of South Australiaindicate that they felt that they were not bound by international agreements entered into bythe Commonwealth. If that were right and if, in the pursuance of their obligations underbilateral arrangements, they did not feel compelled to be bound by international agreements,would that be of concern to you?

Prof. Fowler—Yes. It is one of the grounds upon which I argue against accreditation asa mechanism. I think, given the way in which Commonwealth responsibilities have beendefined in the bill so as to clearly relate to certain areas of international obligation, such asworld heritage and wetlands, it contradicts the assumption of that responsibility to then handit over to the states, which are not bound directly by the international agreements concerned.

Senator ALLISON—I echo Senator Bolkus’s remarks about that document. I can see itbeing of great use to me. I have so many questions on this one. I was very interested in thecomments in your submission about the Canadian experience and the Canadian legislationbecause a number of groups—particularly industry—have come to the committee and citedthat as world’s best practice or a model that Australia should be looking at. I was not evenaware that it had bilateral agreements as part of it, but I wonder if you could either expand



on what you have said here about the failure of that legislation or direct the committee toanother document that we might have a chance of looking at.

Prof. Fowler—My comments are based on the fact that I receive a number of publicationsfrom Canada from environmental law institutions of a similar nature to my own. The Canadiansystem was in fact modelled on the Australian Intergovernmental Agreement on theEnvironment. Our environment minister visited Canada several years ago and in discussionswith her counterpart it emerged that the idea of something like an intergovernment agreementbecame very attractive to the Canadian federal government. As a result of the Canadianintergovernmental agreement the provinces have been given greater freedom to make decisionswhich would otherwise have fallen to the federal government in Canada to handle, and it isnow emerging as a concern on two fronts that, firstly, the provinces are not maintaining theircurrent levels of environment protection. In some cases they are winding back—in Albertathey are winding back energy regulation, for example—and they are moving in oppositedirections to the ecological sustainability objective, yet at the same time they are enjoyingwider decision making powers than they previously possessed.

Secondly—and this is why I think we had this bill before us in part—the Canadian system,like the current one in Australia, is not legally based. Currently accreditation in Australia doesnot work because it is contained in an intergovernmental agreement which has no legal statusand, were it to be put in practice—and it has not, there has not been accreditation in practicesince 1992—then it is likely that a challenge could be mounted to the handing back of powersto the states which the Commonwealth still has a legal responsibility to exercise, and that isthe gist of an action in the Supreme Court of Canada at the moment over their particulararrangements.

So what I am saying is that whilst Canada has not in fact gone as far as Australia proposesto go in legislating for accreditation, its experience with an administrative system ofaccreditation has shown, firstly, that the provinces have not responded constructively to that,and, secondly, that it poses legal threats in terms of its enforceability.

Senator BOLKUS—Can I just intervene for a second. Under our Constitution there is amechanism for referral of powers to the states.

Prof. Fowler—Yes.

Senator BOLKUS—This bilateral agreement arrangement does not come under that. Couldthis be challenged, do you think, constitutionally?

Prof. Fowler—I would defer on that because I do not claim to be a constitutional lawyerand I have not specifically considered that issue but, as I understand the referrals power, itis a power on the part of the states to refer matters to the Commonwealth. In effect, what thebilateral agreements are doing is in reverse. Where the Commonwealth appears to have theclear constitutional power to do something, it is contracting to refer that back to the states.Whether that raises constitutional issues I am not clear. They have only just begun to occurto me in the context of this bill and I do not purport to claim expertise to that degree in thearea of constitutional law, but it is an issue, I believe.

Senator ALLISON—I think you may have answered this question, anyway, with yourremarks a minute ago: the proposition put to the committee on a regular basis is that thisenvironment will create a competition between the states to arrive at the lowest commondenominator when they are competing for development interests in their states. Is that theexperience in Canada too?



Prof. Fowler—I have actually been involved in a study with Harvard Law School oncompetitiveness as an aspect of environmental regulation and that study indicates, in a numberof case studies, that in federal systems inevitably there is some element of competition betweenstates to attract development activity. That can at times come into conflict with environmentalprotection goals, and that is, in essence, the nature of a system in which economic developmentis a key to wellbeing within state governments and the idea of trying to attract developmentto a state is important. I actually say in my submission that I think that that is a factor whichcan never be forgotten. It is the reality of the way in which our federal system works and thattherefore, when one faces the possibility of state governments exercising environmentalapproval powers, they do not exercise them in a vacuum.

Now, I cannot speak for Canada specifically, but I can say from my own experience ofhaving been an academic visitor to Canada on a number of occasions that it is very similarto Australia in the sense that you have certain natural resource rich provinces which are verykeen on the development of those resources and which tend to be pushing downwards ratherthan upwards in their environmental standards, and Canada’s recent experience suggests thatsome of those provinces, such as Alberta which I have already mentioned, are using the newfound freedom to try to promote those goals.

Senator ALLISON—You asked us at the outset to imagine a pyramid. My question to youabout local government is: should the role of local government be more carefully prescribedin this legislation and do you understand the disappointment the ALGA has with the bill?

Prof. Fowler—Yes, I do understand their disappointment.Senator ALLISON—Is there a constitutional problem with local government actually being

part of the bill?Prof. Fowler—Local government is not recognised in the Constitution and therefore I can

understand why those who drafted the bill would have found it difficult to define the role oflocal government specifically in the bill. Nevertheless, one could have easily made provisionfor the recognition of local government and for consultation with local government at variouspoints. And I make another point here: since 1992 and the Rio Earth Summit there has beena tremendous amount of effort in Australia in particular to promote Agenda 21 documents atthe local government level. Local government has become increasingly aware of environmentalresponsibilities across Australia, and I think we are a leader as a nation in this regard, and localgovernment deserves recognition for that.

Senator ALLISON—You do not mention in your submission conservation agreements but,nonetheless, they are there built into the bill and they are agreements that can be reached withanybody, including local government, presumably. Why is it so difficult to bring localgovernment in in a stronger way? You must excuse my ignorance on constitutional mattersin the local government area.

Prof. Fowler—I think perhaps part of the difficulty is simply a mechanical one as well. Itis much easier to envisage agreements operating between entities such as a state governmentand the Commonwealth government than it is with either individual local governments or withthe AGLA, for example. There is just a mechanical problem there, I think, in that you haveobviously thousands of local government entities in Australia and to envisage trying to enterinto agreements with each of those is probably beyond the bounds of practicality.

Senator ALLISON—I suppose a way of involving local government which is not presentlythere is to make the process much more transparent and public so that councils can put insubmissions in the same way that the public can.



Prof. Fowler—Yes, I would agree with that.Senator ALLISON—And this is a fundamental flaw, in your view, in the bill?Prof. Fowler—Well, I think the flaw is not simply with respect to local government but

with respect to the community as a whole, that there is no provision for prior consultation ordiscussion with the public or with local government before a bilateral agreement is executed.

Senator ALLISON—I think we have probably explored most of the issues that you raisedin your submission. I wonder if I can move on to some other areas.

Prof. Fowler—By all means. Yes, there are other areas that I might have addressed.Senator ALLISON—This afternoon we will have evidence from the traditional owners of

Uluru and the land council, and I wonder whether you have had a chance to look at thechanges this bill proposes to make to Kakadu and to Uluru, and the demise of the statutoryrole of the Director of National Parks and Wildlife. Does that concern you?

Prof. Fowler—I am aware of those changes. I have not focused on those. I have focusedprimarily on the definition of ‘national environmental significance’, the environmental approvaland the environmental impact assessment components of the bill. I have concerns about theloss of that statutory office, though, because I believe it has been one which has worked well,and I fail to see the reason for disbanding it.

Senator ALLISON—Is it your view that the Crown should be exempt from liability forprosecution?

Prof. Fowler—No. I believe that there is no inherent legal reason why the Crown shouldnot be able to be prosecuted or an agency for the Crown should not be prosecuted where itis clear that offences are being committed by those agencies under environmental legislation.That is a view I have expressed frequently to the state government in relation to its ownlegislation. May I add one other thing on that, and that is that I think there is an innovativeprovision in the bill concerning civil penalties. As it happens, I have just returned from a six-month sabbatical in the United States working on the concept of civil penalties, which I findextremely attractive because it provides an informal and more effective means of enforcementthan does criminal prosecution. Nevertheless, I am surprised that the bill appears tocontemplate only civil penalties and does not still make provision for criminal sanctions aswell.

Senator ALLISON—Is there any information arising from your sabbatical that you wouldlike to pass on to the committee that relates to the bill in that sense?

Prof. Fowler—It is in embryo and unfortunately delayed by having to prepare a submission,but I am due to get it to a publisher in about three weeks time.

Senator BOLKUS—It still gives us enough time for this committee.Senator ALLISON—That is right. If you can get it to us before we are actually dealing

with it in the Senate, that would be interesting.Prof. Fowler—I will try.Senator ALLISON—Rules of standing is another issue that comes up again and again.

Presumably you would sooner see a more open and a more all-inclusive rule in this respect.Prof. Fowler—I prefer open standing, and I refer back to the recommendations of the

Australian Law Reform Commission over a long period of time on that matter, which I thinkare sensible and appropriate. I make one further point. Can I return to the bilateral agreementsmechanism. If that mechanism is to stay in the bill, if the political outcome is that it remains,



my strongest hope would be that at least in this bill one or two of two things occur. The firstis that something like a parliamentary commission for the environment is established toperform an oversight and monitoring role with respect to those agreements, but the secondis that it may be possible to even contemplate the idea of judicial review where it appearedthat an agreement was contrary to the act, and my difficulty there, in looking at the provisionsof the act which deal with the Administrative Decisions (Judicial Review) Act, is that thereis a broadening of the definition of ‘standing’ in the term ‘aggrieved person’ provided in thisact, but it is not clear that the Administrative Decisions (Judicial Review) Act has been madeapplicable to this act. My understanding of that act is that it has a very long list in schedulesof decisions that are reviewable under that act by any person aggrieved.

So whilst ‘standing’ has been broadened in this act, it is not clear, and I can find noreference to any amendments to the ADJR Act which make clear that certain actions by theenvironment minister such as the entry into a bilateral agreement are reviewable. If that wereto be done, then it would provide an additional safeguard if we are going to have bilateralagreements to ensure that they are done in compliance with the spirit and objects of the act.

Senator BOLKUS—You would also want some criteria against which a bilateral agreementor decision would be assessed, wouldn’t you?

Prof. Fowler—Yes. I think that insofar as the act has sought to spell out certain criteria,such as the agreements must be consistent with the objects of the act, that is fine, but theprovision that additional criteria can be spelled out by regulation requires clarification, andpreferably some indication of what those criteria would be.

Senator MARGETTS—Professor Fowler, the South Australian government representativeswho, I must say, listened to your presentation, which was really good to hear, took specificexception to the minister’s power to cancel. You have concentrated in your submission onthings like the accreditation process. Do you see a connection between that, and do you seeany problems with watering down that provision? They suggested there could or should besome time limit on suspension.

Prof. Fowler—I think they made that suggestion in relation to emergency suspension. I thinkthat is not an unreasonable thing for the states to argue. I can understand why they would dothat. I have already expressed my concern about suspension and cancellation, that it may cometoo late where it does happen.

Senator MARGETTS—That is right. You said that your reading of the bill is that it doesnot mean that the Commonwealth can stop an activity which might be—

Prof. Fowler—Under way.

Senator MARGETTS—under way.

Prof. Fowler—In breach of the act, or in breach of an agreement rather.

Senator MARGETTS—And might actually mean that they have not been able to keep totheir international agreements.

Prof. Fowler—Yes. That is my principal concern about those provisions concerningsuspension and cancellation.

Senator MARGETTS—Is it your understanding that that might lead to some legalchallenges, some sort of writ of mandamus to the Commonwealth, if they are not able tointervene to prevent something that is part of their international obligations?



Prof. Fowler—If the act does not allow for that action to be challenged because it hasfacilitated the exercise of the relevant approval by a state government, then I think it wouldbe very difficult to mount a legal challenge in those circumstances. The act basically hascountenanced that outcome by allowing the state to make the decision and not giving theCommonwealth the power to reactivate its own decision making power.

Senator MARGETTS—So that would indicate that Australia is actually legislating to maybeget out of its international obligations?

Prof. Fowler—It is a scenario which one could ascribe to the act in its current form, thatAustralia could be found in breach of its international obligations with respect to the protectionof world heritage or Ramsar sites with endangered species.

Senator MARGETTS—Do you agree with the South Australian government representativesthat the Commonwealth could or should legislate or make agreements to implement greenhousecommitments without mentioning the words ‘greenhouse’ or ‘climate change’?

Prof. Fowler—I think the definition of ‘matters of national environmental significance’ inthe bill is too narrow. This was another matter that I did not take up in the submission becauseI wanted to focus fairly and squarely on the issue of bilateral agreements. The genesis of this,of course, lies in the COAG heads of agreement where the attachment 1 to that agreementcreates two parts: a first part, which are the matters of national environmental significance onwhich the Commonwealth can act in terms of environmental assessment approvals subject toa bilateral agreement; and a second part where it has, if you like, an ancillary role but not adirect hands-on role.

The matters that COAG put into part 2 of that attachment I think in some cases are mattersthat belong in part 1. Specifically I would say that where a development is proposed whichis likely to make a significant contribution to greenhouse gases—I could think of a coal-firedpower station as an example—I believe that is the sort of project that ought to be assessedby the Commonwealth and on which a decision should be made by the Commonwealth whichwould be consistent with its international obligations. Similarly, if developments are likelyto have a major impact on biodiversity conservation, then again I would argue that those oughtto be within the reach of the Commonwealth power under the matters of nationalenvironmental significance test.

A third area which I would put forward, because it has been a particular hobbyhorse of mine,is genetically engineered organisms. I was a party to making submissions to a previous Senatecommittee that looked at that matter, which recommended, I think four to five years ago, thatthere was an urgent need for national legislation to regulate the deliberate release of geneticallyengineered organisms. I think it is a classic example of the breakdown of cooperativefederalism that no such agreement has been reached, and we still have an informal and non-legislative scheme for that area, and I believe it is high time that the Commonwealth steppedin and said, ‘We will do this because it is clear that the states are unwilling to do so.’

Senator MARGETTS—Finally, Professor Fowler, consistently people, especially youngpeople, poll environmental issues as being of major interest to them; they do not necessarilyalways show that, but polling consistently shows that. Given the well-known level ofcommunity interest in environmental issues and given your experience in looking at Canada’soutcomes, what could you see might be the result if there is a loss of confidence inenvironmental protection as a result of bilateral agreements? In particular, do you see theremight be some further pressure for constitutional change to make these things crystal clear?



Prof. Fowler—It is an excellent question and it is one that has troubled me for some time,because I have written and talked about accreditation as a mechanism for eight to nine yearsnow, and I have found it very difficult to get an audience. People find it hard to understandthe nature of these intergovernmental agreements and the way in which they can influenceoutcomes in practice. I think it might be very hard for people to understand, if this bill passesand bilateral agreements become a part of the routine exercise of environmental managementpowers, how that has made a shift in power until such time as the first development comesalong, where somebody says, ‘Well, surely this is a matter of national environmentalsignificance and the Commonwealth has the power to decide this,’ and then that is fine, butin fact the Commonwealth has contracted out to the states to deal with that matter.

If that happens, then I think there will be a growing public awareness of the dangers of thistype of approach. My ultimate conclusion is that, if there is to be accreditation in relation tomatters of national environmental significance, it should operate the other way. The statesshould be accrediting the Commonwealth and saying, ‘We will accept the outcomes of yourenvironmental assessment and approval processes.’ I do not see the argument for theCommonwealth to accredit state processes in those circumstances, and I think there could bea considerable amount of surprise within the community and ultimately a loss of confidenceby the community in the Commonwealth in terms of what will have transpired through thesebilateral agreements.

Senator MARGETTS—Thank you.CHAIR —Thank you, professor, for appearing today and for your interesting evidence.



[10.08 a.m.]GARRETT, Mr Clinton (Private capacity)

CHAIR —Mr Garrett, I am Senator Eggleston, the chairman. I welcome you to the hearing.In what capacity do you appear before the committee today.

Mr Garrett —I am an Alderman of the Whyalla City Council.CHAIR —Are you appearing on behalf of the Whyalla City Council, as an individual or as

a representative of another organisation?Mr Garrett —I am representing myself individually.CHAIR —In your private capacity. That is fine. The committee prefers all evidence to be

given in public, but you may at any time request that your evidence, part of your evidence,or answers to specific questions be given in private, and the committee will consider any suchrequest. I point out, however, that evidence taken in camera may subsequently be made publicby order of the Senate. The committee has before it submission No. 352 dated 24 August 1998.Are there any alterations or additions you wish to make to the submission at this stage?

Mr Garrett —There are no significant alterations or additions I would like to make, althoughI would welcome any questions from the senators on my submission.

CHAIR —Yes, we will proceed to that phase next. I now invite you to make an openingstatement at the conclusion of which we shall have the senators question you. So pleaseproceed, Mr Garrett.

Mr Garrett —Could the senators introduce themselves?CHAIR —I will introduce them. We have Senator Bolkus, Senator Lyn Allison, me—Senator

Eggleston—as the chair, and Senator Margetts. The senators will identify themselves beforethey question you. Would you like to now make your opening statement.

Mr Garrett —Yes. I am actively involved with the environment plan in Whyalla. I am anAlderman of the Whyalla City Council. I have a long-term interest in environmental issues.I am a geography and biology teacher, and I was chosen as the winner of the NationalExcellence in Teaching awards in 1995 for my work with students in such matters.

CHAIR —Good. Are there other points you wish to make?Mr Garrett —Not as a part of an introduction, no.CHAIR —Okay. I will now ask Senator Bolkus to question you, if he has any questions for

you.Senator BOLKUS—Mr Garrett, I have got probably one broad question, and it comes out

through your submission. You are concerned that through this bill the Commonwealth doesnot assert sufficient interest or primacy over issues which cross state borders, and the question,I suppose, is in a couple of parts. What sorts of issues would you like to see canvassed bythis bill? Are there any specific issues that may in fact be more South Australian than otherstates, such as rivers, particularly rivers coming into South Australia?

Mr Garrett —Senator, the gist of your question is that you would like me to comment onissues which I think are of national significance. Perhaps the most outstanding issue whichI think the Commonwealth should be exerting far more leadership in is the greenhouse issue.This is one which obviously transcends state boundaries. At the moment the Commonwealthhas in fact done very little in that area when you compare us with your developed nations.On issues such as the Murray-Darling Basin I am pleased to see that the states and the



Commonwealth are actually beginning to make some progress. I would like to see, though,far more Commonwealth involvement.

My concern with this bill would be that much of the decision making would go back towardsthe states rather than a combination of Commonwealth and states, otherwise the whole strategicthrust which has been developed might be lost. I think issues such as soil erosion go rightacross the state borders. Things like river system management, not just the Murray-Darling,are more than just single state issues.

Senator BOLKUS—Thanks very much.

CHAIR —Senator Allison is next, Mr Garrett.

Senator ALLISON—Alderman Garrett, we heard evidence a little earlier today fromProfessor Fowler, who suggested that this bill may result in the Commonwealth giving overall of its powers, even for matters of environmental significance or national significance, tothe states. Is that something you would be concerned about as well?

Mr Garrett —I am extremely concerned about any notion that we should go back to thesort of situation that we had, say, in the 1970s, where the responsibility for environmentalissues was perceived to reside primarily with the states. If we look at issues like the FranklinDam or the mining of sand on Fraser Island, both of those were issues where the states werequite happy to go ahead and do things which would have resulted in major environmentaldestruction. It was only through the Commonwealth stepping in and doing something that thosetwo situations were resolved in favour of the environment.

I think any suggestion that we go back to that sort of situation flies in the face of what isgoing on everywhere else in the world. We are not seeing countries like America takingenvironmental matters and handing them back to the states. What is happening there is thatthe national hand is being strengthened. If we look at countries like Germany and Denmark,although they do not have the same sort of governmental systems, the federal governmentsthere are actively involved in environmental matters.

Senator MARGETTS—Professor Fowler also raised the difficult problem for localgovernment and for the public generally in the fact that a lot of this depends onintergovernmental agreement. The issue raised this morning was that much of this has alreadybeen decided between governments, state and federal, which has not included local governmentand has not included the public. Can you comment for the need for public involvement in theprocess, and local government’s involvement, and, if you have had a chance to look at thebill, also the standing of groups and individuals in relation to challenging aspects of the bill.

Mr Garrett —I will make it quite clear that I have not read the bill. What I have read isthe comments of the Environmental Defender’s Office on the bill, and then other articles whichhave appeared on it. I think there was some work done on the role of local government sofar as greenhouse abatement is concerned, and it was recommended or thought that localgovernment could have an effect on about 50 per cent of all greenhouse emissions, and at themoment there is a limited program for local government to be involved in that sort of thing.Whyalla City Council has certainly tried to take a lead in this area with our solar hot-waterrebate and with getting energy efficient designs for homes.

However, we are one council basically operating on our own, and it would be far better ifthere was a national strategy for this sort of thing and a set of national indicators to whichpeople had to work. There has been a lot of work done, for example, on the National HouseEnergy Rating Scheme. Until we actually have in the building code of Australia a requirement



that new buildings perform to either four- or five-star energy ratings, we are going to continueto build buildings that will last for 20 years, 50 years, and which will be excessively energyconsuming.

So I do see that there is a significant role for local governments to be involved inenvironmental issues. The problem that local governments like mine have is that we aresignificantly cash-strapped because in this city BHP does not pay rates—that was a stategovernment decision which has penalised this city for all time—whereas in Newcastle theypay approximately $1.2 million in rates and in Whyalla they have given us an ex gratiapayment of $85,000. So places like Whyalla would certainly look to have a much greaterCommonwealth involvement at the funding level, too.

So far as public involvement is concerned, basically if you do not educate the public in thefirst place as to why things need to change, then people will see no need to change andAustralia will, I think, continue to go very slowly in environmental issues. The interestingthing there is that if we went back to 1992 when the Rio Conference happened, there was ahigh level of media awareness about environmental issues, and polls taken at that time wouldshow that the public rated environmental issues as either the highest or second-highest issuein a priority order.

If you were to do that same survey today, you would find that it has slipped down theagenda considerably, and I would say that the amount of public information on theenvironment has slipped down and leant to that sort of situation. So I do see that there is amajor role for both Commonwealth and state governments in educating the public aboutenvironmental issues and where people can do better, because many things actually rely onenvironmental decisions that people make at individual levels. When I go to buy a car, I canmake a choice about buying something that uses a lot of fuel or something which is fuelefficient. Because I have an understanding of this sort of thing, I buy a fuel efficient car. WhenI was building an extension to my house, I had it designed in such a way that it works in apassive solar sense and the cost of doing that was minimal and I have made a significantdifference to my energy bills as a result. There are lots of things that individuals can do, butthey need information in order to do it.

Senator ALLISON—As a South Australian, I wonder if you are interested in the provisionin the bill which confines the Commonwealth’s involvement in nuclear activities to millingand mining and, specifically, the provision which would take away the Commonwealthinvolvement in transport of uranium ore. Do you have a view on that?

Mr Garrett —More than on the transport of uranium ore, Senator. I have a view that it lookslike Australia has been organised into being a nuclear repository and I am actually moreconcerned about the transport of high level nuclear waste. The transport of yellowcake is, Ithink, a relatively minor problem because a spill of yellowcake would be fairly easily cleanedup but a spill of high level nuclear waste would be considerably harder to clean up and,therefore, you would want to see the Commonwealth involved at a very significant level onthe transport of such things.

Mining and milling certainly have a place in the environmental agenda, too, but I wouldbe more concerned at this stage about plans to use the inland of South Australia as a nuclearrepository. I do not actually oppose that. What I do want to see is that the transport of suchwaste is done in such a way that the risk to the environment, the risk to the public, isabsolutely minimised.



Senator ALLISON—Can I ask you a question about consultation. What sort of involvementhas your council been invited to have, either by the state government or by the federalgovernment, in looking at this bill?

Mr Garrett —None—that I am aware of.

Senator ALLISON—None.

Mr Garrett —I happened to get involved in this because I saw a public notice. I respondedin the first place back in May last year and following that I wrote a second response. As faras council is concerned—and I chair the local environment committee and the economicdevelopment committee of council—I have not seen anything come past the council agendathat would invite council to be involved in the drafting of this bill.

Senator ALLISON—Would you like to make a comment on that? Is that disappointing fromyour point of view? Should the federal government have more widely canvassed this bill withlocal government? That is a leading question.

Mr Garrett —Given the role that local government has in managing significant areas ofAustralia, I would have thought it was imperative that the Commonwealth canvass it with localgovernment. Many of the decisions that are required will, of necessity, need to involve localgovernment and I think it is very sad that more has not been done in the consultation processin that area.

Senator ALLISON—Another suggestion which has been put by a number of witnesses isthat there should be a commissioner for the environment who could, amongst other things,monitor the agreements, bilateral agreements, review them after a period of three years andgenerally be involved in the process. Is that something you would support?

Mr Garrett —Yes, I would. Two years ago when I went to the State of the EnvironmentConference, one of the things which was very obvious then was the problem of collatinginformation between the states and federal bodies on developing sustainability indicators. Youreally do need an overarching structure, and perhaps a commissioner for the environment isthe way to do it: a person who collects all of that environmental data, sets the indicators andthen sees whether we are meeting those indicators and whether we are meeting ourinternational indicators. I can see great value in having such a commissioner, so long as theyare sufficiently resourced to do their job properly.

CHAIR —I have one question for you, Mr Garrett. You said you were concerned about thelimited number of matters of national environmental significance.

Mr Garrett —Yes.

CHAIR —And in particular the greenhouse issue. Are you aware that there is a $180 millionpackage of measures designed to reduce greenhouse emissions and the creation of anAustralian Greenhouse Office as a federal program already?

Mr Garrett —Yes, Senator, and $180 million is a pittance. That is $180 million over howlong?

CHAIR —At least there is a program, as there are in a number of other areas which are notcovered by this bill, so the Commonwealth is actually involved in a wide spectrum of othermatters of national environmental significance, but not necessarily designated as such in thisbill.

Mr Garrett —Two things that the Commonwealth could do so far as greenhouse mattersare concerned would be to have a national fossil fuel obligation, as the UK has. I actually saw



the results for NFFO4 a few weeks ago. The cost of generating power from the wind has nowfallen to the same level as generating power from coal and that is because there was arequirement that a certain percentage of the UK’s power come from a non-fossil fuel source.The other thing which would significantly improve Australia’s greenhouse performance is acarbon tax and, if you read my submission, Paul Hawkin has spoken at great length about this.Countries like Denmark and Holland have done a significant amount of work on this and findthat a carbon tax is a very useful way of stimulating business. The Business Council ofAustralia has made a lot of noise about the potential damage to the Australian economy byhaving a carbon tax. The results in other places in the world suggest that what it does istransfer jobs from old dying industries to new growing industries.

CHAIR —Thank you. I guess there are other issues, but the point is that the Commonwealthis covering that as of environmental significance elsewhere. That was the point I wished tomake.

Senator MARGETTS—I tried unsuccessfully to find out from the South Australiangovernment today what was the basis upon which they approached bilateral agreements. Haveyou had much experience with South Australian bilateral agreements on environmental issuesand what is your understanding of the basis upon which subsequent—

Mr Garrett —No, Senator Margetts, I am not able to help you on that at all. I cannotremember as a council that we have had any dealings on any bilateral agreements.

Senator MARGETTS—Do you have confidence in the South Australian government topick up on the kinds of issues that are being presented to you and the other councils involvedin Agenda 21 in their negotiations on such agreements?

Mr Garrett —So far as Local Agenda 21 is concerned, we were a pilot city for doing LocalAgenda 21 and we have done that entirely on our own. We have had the guidelines, we havegone through the public consultation, developed a local environment plan and council is nowimplementing that. The only government help that we have had has been two meetings withone officer from the department of environment. At the initial stages everything else has beendone by council. So if there was significant support for developing a Local Agenda 21 planfrom either the state government or federal government, we certainly have not seen too muchevidence of it.

Senator MARGETTS—If the stated aims of better environmental protection and coverage—whatever one thinks of the bill—are to be achieved, would they ever work if local governmentwas not fully part of that process?

Mr Garrett —I think it would work to a degree, but you are not really maximising yourchances of success if you do not have local government on board. I will give you an example.If we look at pollution of the sea, the city council here has constructed wetlands to trap thesignificant amount of stormwater which flows off our streets so that it does not enter the seaand pollute the area. We have moved our rubbish dump so that there is no problem of materialgetting out of the dump and into the sea. We have been actively involved in trying to helpSA Water recycle the 4½ million litres of sewage which runs into the sea here every day, soas a councillor I can see that we have a significant impact on the environment, and the greaterthe level of involvement between the council, state and federal governments on these issues,I think the better we are going to be able to manage the environment.

Senator MARGETTS—Would it help councils, in your opinion, to have some kind of firmCommonwealth legislative framework on these issues, like greenhouse, that many people



believe are of national and international significance? Could you give your reasons for that,or any examples of how it might help council.

Mr Garrett —Perhaps one of the most useful things that the Commonwealth governmentcould do would be to develop a set of economic and environmental indicators which applyright across Australia and to review these on a regular basis. Then, having set the indicators,work with councils to see how they can be best implemented. Australia has a low rate oftaxation. We have the second lowest rate of taxation in the developed world, but we have avery low rate of spending on infrastructure. I see a significant role for the Commonwealth inimproving the amount of money which is spent on the environment and perhaps one of thebest vehicles for doing that is through local government.

So far as meeting international obligations, such as greenhouse, as I said before councilshave the opportunity to influence about 50 per cent of all greenhouse emissions and it seemsa great pity that we have not yet come up with some strategy at a Commonwealth and localgovernment level to do something about that.

Senator MARGETTS—If I understand you correctly, some legislative backing might bedone in a very cost-effective way. Is this what you are suggesting?

Mr Garrett —Certainly. The evidence from overseas is that it is cost effective to do thingson greenhouse. Basically anything that you do to improve energy emissions improves thecompetitiveness of Australian industry and one of the things we are being told all the timeis that Australian industry must become more competitive. Why is it then that Australianindustry uses three times the amount of energy per dollar of GDP output compared withJapanese companies? The reason there is that the Japanese have made a concerted effort onthe energy efficiency part and we have not yet. That does not mean that we should not. I thinkthe time will come when one of two things will happen: either Australia wakes up to its needto improve energy efficiency and its emissions of greenhouse gases or we continue on the sameway as we are, and we will actually be outpaced by the countries that have made a decisionto go in another direction.

Senator MARGETTS—Senator Eggleston has mentioned a $180 million package forgreenhouse policy implementation, and also it has been mentioned by the South Australiangovernment that things like the industry agreement should be enough. In the light of suchthings as the removal of the diesel fuel rebate, what do you think is going to be the impacton an area like Whyalla of the environmental standards if there is not some kind ofenvironmental or legislative protection or action in relation to those issues?

Mr Garrett —The removal of the diesel fuel rebate would certainly be popular with somesectors within the economy. However, the downside to that would be that it actuallyencourages us to continue on with old technology. I do not know whether you have been toEurope in the last few years, but have a look at the number of vehicles which are dieselpowered there compared to those diesel powered in Australia. Diesel is not necessarily thebest way to go, but the reason that so many vehicles are highly energy efficient in Europe isthe higher fuel prices. We actually would be going in completely the reverse direction. Bylowering the diesel fuel rebate, what we would do would be to encourage the least efficientengines to remain in service.

It is pretty clear that one of the growing areas for powering vehicles is going to be methanolfuel cells. Australia has the resources to produce large amounts of methanol, and yet I do notsee any evidence yet that Australia is getting involved in methanol fuel production or methanolfuel cells. In fact, in recent discussions with the South Australian government they could see



that there was no point in being involved in it because at the moment there is no market. Ofcourse there is no market just yet, but if you do not position yourself to take advantage of themarket as it develops, then somebody else will be already in the best position. But to comeback to the diesel fuel rebate, what that will do unfortunately will be to shift more goods offrail to road. I would be much happier to see a move in the other direction so that we use fuelmore efficiently.

Senator MARGETTS—Given that you are meeting with other councils from time to timein relation to such things as Agenda 21 and other environmental issues, how widely spreadare these concerns within local government, both from your meetings with other people inSouth Australia and other parts of Australia?

Mr Garrett —There is significant concern about environmental issues. One of the thingswhich is increasingly being recognised is that a good quality local environment leads to betterstandards of health in the local community and people tend to be more productive. If you couldget your hands on a research paper from Flinders University, published in the FlindersUniversity News about three weeks ago, it actually has this quantified. What they have donethere is quantified what we have had as a gut feeling, that better local environments meanbetter communities, more productive communities.

Senator MARGETTS—Just added to that, and related to a question I asked the previouswitness, if through these bilateral agreements the community loses confidence in theCommonwealth and the state to properly protect the environment, what do you see might bethe result? Can you see any particular result within your community if the community losesconfidence in the role of the Commonwealth to help protect the environment?

Mr Garrett —On a personal level I can say that I feel increasingly cynical about theCommonwealth wishing to protect the environment, and I find it difficult to speak for otherson this so I would be unwilling to commit myself.

Senator MARGETTS—Okay. Thank you very much.CHAIR —Thank you, Mr Garrett, for giving your evidence and for appearing before us

today.Mr Garrett —Thank you.

Proceedings suspended from 10.40 a.m. to 11.08 a.m.



DONALD, Mrs Ngoi Ngoi, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreterJINGO, Mr Johnny, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreterTEAMAY, Mr Malya, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreterTJAMIWA, Mr Tony, Board Member, Ulur u-Kata Tjut a National Park Board ofManagement, through Ms Lizzie Ellis, interpreterWILLMOT, Ms Joanne Edith, Chairperson, Ulur u-Kata Tjut a National Park Board ofManagement

CHAIR —I would like to welcome the representatives of the Uluru-Kata Tjuta National ParkBoard of Management.

Mr Tjamiwa —That was the Tjukurpa song for the mala dreaming that belongs to Uluru-Kata Tjuta. This is the Tjukurpa, the stories for Uluru and Kata Tjuta Uluru, Kuniya, the carpetsnake, liru, snake, and mala, rufous hair wallaby, and Kurpany, the devil dingo. That’s thestories that belong at Ayers Rock.

Ms Willmot —Thank you, Tjamiwa. Thank you, other members of the board.CHAIR —For the Hansard record, perhaps someone could state the names for inclusion in

the record. Would you like to do that, Ms Willmot.Ms Willmot —Yes. My name is Joanne Willmot. I am the chair of the Uluru-Kata Tjuta

Board of Management. Beside me is Mr Johnny Jingo, traditional owner for Uluru-Kata Tjuta,and also a board member. Beside him is Ms Ngoi Ngoi Donald, who is taking the place ofKunbry Peipei, who could not attend. She is a traditional owner as well as a board member.Beside her is Malya Teamay, who is a traditional owner and board member, and then we havegot Ms Lizzie Ellis, who is the interpreter and translator for this session, and next to her isMr Tony Tjamiwa, who is a senior lawman, an elder, for Uluru-Kata Tjuta National Park, aswell as a board member. We all represent the Uluru-Kata Tjuta Board of Management. Thankyou.

CHAIR —Thank you very much. The committee prefers all evidence to be given in publicbut you may at any time request that your evidence, part of your evidence or answers tospecific questions be given in private, and the committee will consider any such request. Ipoint out, however, that evidence taken in camera may subsequently be made public by orderof the Senate. The committee has before it submission No. 616 dated 27 February 1999. Arethere any alterations or additions you would like to make to your submission before makingan opening statement?

Ms Willmot —No, there aren’t. Can I just ask, for the purposes of the interpreter, that whenyou are speaking in English you keep it very simple but also speak slowly so the interpretergets the gist of what is being said and translates it, because English is not the first languageof the traditional owners.

CHAIR —We understand that and we will certainly be very sensitive to that.Ms Willmot —Thank you.CHAIR —So would you like to make an opening statement.Ms Willmot —I would. I ask the question: what is joint management? You have just

witnessed an aspect of the living, breathing culture of the original and current owners of Uluru.



That culture is a major attraction for visitors to Uluru-Kata Tjuta National Park but, moreimportantly, it is the essence of life to the traditional owners. The main object of jointmanagement is the promotion and strengthening of that culture. Joint management is what itsays. Under joint management, Anangu and non-Aboriginals work together evenly. Anangusay, ‘ngapartji-ngapartji.’ This means reciprocity, evenness and cooperation.

How does non-Aboriginal law support joint management? Joint management is supportedby four legs: the land rights act, the National Parks and Wildlife Conservation Act and thepark lease and the plan of management. The land rights act in front keeps Tjukurpa in front.It says that nothing happens on Aboriginal land without the informed consent of the traditionalowners. The National Parks Act keeps joint management strong. It says that Aboriginal ownedparks are managed by a board with Aboriginal majority. The park lease is the agreementbetween traditional owners and the director of national parks and wildlife. It also keeps strongand up front the position of traditional owners in the management of the park.

The plan of management describes the prescriptions and policies that govern the day-to-dayoperations of the park. The plan clearly places Tjukurpa at the forefront of management.Tjukurpa is in front, not forgotten, as some would have, and is a vital component of the entirejoint management arrangement. This environment bill must be understood in the context ofbroader systematic attacks on Aboriginal rights: the Wik native title amendments, the Reevesreview of the land rights act, the failure of the government’s Aboriginal heritage bill 1998 toimplement the Evatt report, the non-recognition of Aboriginal ownership of land under theCommonwealth Constitution and under the proposed Northern Territory constitution.

Aboriginal people are slowly losing control over their country and their own land. What kindof message can the board send to Canberra? Mutual trust and understanding. Joint managementrequires mutual trust and understanding. Understanding: non-Aboriginals, including theminister, must understand that traditional Aboriginal culture is very different from non-Aboriginal cultures. Consultation must be sensitive to Aboriginal culture. That is, it must beunhurried, based on ngapartji-ngapartji relationships, repetitious. It is about listening carefully,not only with your ears, but with an open heart, participatory. ‘Your law is on paper; our lawshould be on the top,’ said one senior elder from Uluru.

Trust: the way the minister has proposed the Environment Protection and BiodiversityConservation Bill has damaged joint management. If the bill goes ahead, it will do much moredamage. Imposing changes without consultation and consent breaches the spirit of trustrequired for successful joint management. The minister says he is trying to foster cooperativerelationships between Aboriginal people, non-Aboriginal people and the traditional owners,but that requires cooperation from both sides. It cannot be imposed if one party is unwilling,for whatever reason, or if one party is not prepared to demonstrate its goodwill.

The main concerns with this bill are no proper consultation—too little too fast. ‘Thegovernment is making the law weak and making us weak until we are nearly ready to falldown,’ says one senior traditional owner from Uluru. No negotiations, the abolition of thetraditional owners-joint management partnership without their consent; imposition of a boardmember without traditional owners’ consent, almost complete disregard for Aboriginal cultureand intellectual property rights, and no equivalent of section 70 of the National Parks andWildlife Conservation Act.

At Uluru we are providing an internationally acclaimed model for joint management, as wellas a multimillion dollar drawcard for the tourism industry. Why impose changes when jointmanagement is based on consultation and negotiation? Why not negotiate and discuss these



changes, especially if they really are so beneficial to traditional owners? We have constantlyfound that joining the knowledge of two cultures brings much more beneficial results than ispossible with one culture working alone. Equally we can reach much better results than thebill promises by the same methods—consultation and negotiation.

CHAIR —Is that all, Ms Willmot?Ms Willmot —That is all.CHAIR —Thank you.Ms Willmot —I would also like to present this painting of the Uluru-Kata Tjuta Tjukurpa.

It is being presented by the traditional owners of Uluru as a submission to the committee.CHAIR —Okay.Ms Willmot —This is their story that has been handed down for thousands of years, and

this is the story they tell and they continue to live by this story for Uluru-Kata Tjuta.CHAIR —We thank you very much for that.Senator BOLKUS—Would you like to tell us as much of your story as you can.CHAIR —Would you like to tell us a story or provide a text which explains the story which

we might then be able to include in the report of the committee.Ms Willmot —There is a story on the back of it, and it also says who the artists are, and

they are the board members. So it briefly gives an outline of what the story is for Uluru, butif you want to hear just a little bit of it I can ask Mr Teamay if he would like to just explainit again.

CHAIR —If that is the feeling of the committee, we would be quite happy to hear it andwe would be very interested in hearing it, in fact.

Mr Teamay—The story that belongs to Uluru-Kata Tjuta is the carpet snake. This carpetsnake came in from the east with the eggs around her neck. She travelled and lives now atUluru. From the west a little came the snake and he lives at Uluru, too. From the west, fromnear Docker River near the Western Australian border, kurpany, the devil dingo, came to AyersRock and he chased the mala people, the rufous hair wallaby people, away from Ayers Rock.But the mala people were living at Ayers Rock. They belong to that country. All these arethe sacred beings of Uluru and their spiritual bodies are represented in natural formations atUluru in rock or trees or rivers. The stories are that these sacred beings handed down lawswhich told people of today, who followed them, to follow the laws that explained how theylived and were to look after the country and live on a day-to-day basis and how to performceremonies and songs and dances. So these beings are sacred beings who gave Aboriginalpeople what they have today. These people here live the life and stories—they live that today.

CHAIR —Thank you very much. We are very grateful that you explained the story of Uluruto us. The committee will seek to have, perhaps, a photograph if that is possible, a picture,included in the report with the story of what it is about. Once again, thank you very much forproviding us with that picture.

Ms Willmot —Can I also say that, as they have presented this to you and realised that itwill be a report going to parliament, the traditional owners have asked that you hang itsomewhere in parliament in a place of significance because it signifies Aboriginal culture beingvibrant and alive and existing and continuing to exist and being a part of our future.

CHAIR —We will certainly seek to do that and the committee will write to the Presidentof the Senate seeking to have the picture put in such a location.



Ms Willmot —Thank you.

CHAIR —Once again, I thank you very much on behalf of the committee for thatpresentation.

Ms Willmot —Can I also say that this is the wana that women use for digging but also usefor their ceremonies. I would also like to present this because it is about sharing ourexperiences but also acknowledging that there are ceremonies that go with dialogue betweendifferent groups of people across country. I would like to present this wana to the speakers,and this one, too. This is part of the ceremony, as well, that we want to continue in ourrelationship with you all. Thank you. I present this to the chair.

CHAIR —Thank you very much indeed. We might ask the senators to ask some questions,beginning with Senator Bolkus.

Senator BOLKUS—I will start off by asking you about consultation in this process. Thequestion essentially is: did the minister consult with the traditional owners before the decisionwas announced on the change of management and why is it important for you that there beconsultation at the early stages before there are changes to the joint management arrangements?

Mr Tjamiwa —The minister, after presenting the proposed legislation bill, went up to AyersRock and was talking to them about it and he told the people what he was proposing to changeand that was the first time, and after hearing those proposals they did not agree with it andthey wanted to take him around to the sacred places to show him and to try and teach himthe different laws and rules and to show him how Aboriginal people, when they are doingconsultations with other groups, do it slowly and together. But he did it on his own, so theywere trying to go back a step to educate him in their culture and law. Last week he went upto visit them at Ayers Rock and they only took him on the mala walk, which is one of thestories on that painting over there. They took him on that walk and told him about that storybut they could not do other things, like taking him out to other sacred places around Uluru,because they were busy with ceremonial business at that time last week.

Senator BOLKUS—Can I ask whether it would have been more important for the ministerto have consulted with the owners before he made the decision? Why would this be so? Whenyou answer that second question can you explain to us the traditional law of Tjukurpa andhow that would apply in this case?

Mr Jingo —He only came up to tell us what changes he was going to make. That is whenwe all got a shock. That is when it happened. There was no consultation before that.

Ms Willmot —Perhaps I could answer the first question. I will see this as striking at the veryheart of joint management and the way in which they came together with non-traditionalowners in leasing the park back once they got the hand-back in 1985 to the Commonwealthgovernment. They thought they had an equitable relationship where Tjukurpa was at theforefront because that was the creation of that country and people’s relationship to it. Thegovernment came in after taking away that country and decided to work together withtraditional owners on joint management of that part. Aboriginal people see it as an affront inregard to the joint management arrangements, and what they see as ngapartji-npagartji, thatthere does not seem to be a concept from their perspective from those ideals from the non-indigenous counterpart in the joint management arrangements. But in regard to Tjukurpa youwill have to ask the traditional owners.



Senator BOLKUS—To the extent that they can explain to us Tjukurpa as it applies to theconsultation process of joint management, can you give us some explanation of the traditionallaw?

Mr Tjamiwa —The changes that the minister is proposing to make, he just came and toldus about it, and after hearing that we were really upset about it and really worried becausethose changes affect the traditional people, the traditional owners, because traditional law isdifferent from whitefella law, government law, and in traditional law people cannot changethe law all the time. It is always there; it is never changing. But white law changes. So,because he came in and said it was going to change, that is why we were really worried andupset, because it was not done in a slow process so that people could understand it properly.

Senator BOLKUS—There is just one last question from me before my colleagues get achance as well. Can you tell us why the Northern Territory government should not get aposition on the board?

Mr Tjamiwa —On the board there are four non-Aboriginal members and six Aboriginalmembers, and the minister wanted to change the numbering of the board, but at the lastmeeting with him there was a heated discussion. But we met with the minister yesterday andspoke to him. The idea, that option that he is thinking about; he rethought it and it is a lotclearer now. We were happy with the other idea that he has got, the option now. The otherthing is that in the past the Northern Territory government has not helped the people livingat Uluru. They have not helped them with anything, they have not given them any assistanceand they have not helped the Mutitjulu Community, money wise, and in the past the historytells itself; you can read the stories about it. These things should be done slowly. The ministershould have come up and had talks with us first before even doing the bill. We are preparedto sit down, take it slowly and talk through this so that we are happy and the governmentministers are happy too.

CHAIR —That in a way answers the question which I was going to ask, and that is: wasthe problem with the Northern Territory having somebody on the board or was it really thatthe minister did not talk about the idea with you first about putting somebody on the board?Perhaps that has already been answered in what you have said. I would like to ask you adifferent question now. If the Northern Territory government’s record is so bad with Uluru,isn’t it a good idea to have the Northern Territory on the board so they can see what you aredoing and get involved, and perhaps that will mean they will give you more help in the future?

Ms Willmot —I just wonder whether it is a good enough reason to put a Northern Territorygovernment rep onto joint management of the board, given that I think there has been a reallygood record between the traditional owners and the Commonwealth government representativeswho are on that board. Everybody comes in ensuring that they have the same outcomes andthat is working with the spirit of joint management and holding that essence true. Because ofwhat they have found in the past in regard to their relationship with the NT government, theyare a bit sceptical as to what their reasons could be, and surely they should have beenproviding the services to this community without having to have some arrangements wherebythey wanted something for what they were going to do, given that the services that are neededat Mutitjulu Community in part are services that are provided by the NT governmentthroughout the whole NT with other communities, black and white.

CHAIR —One last question then: do you have a way of talking to the Northern Territorygovernment about your problems?



Mr Tjamiwa —No. We can speak to the government if we want to. There is nothingstopping us.

CHAIR —So there is no problem. Thank you.

Senator ALLISON—Can I clarify what you said a little earlier. I think you said that inyesterday’s meeting with the minister he made another suggestion to you. Can you tell thecommittee what that suggestion was?

Mr Teamay—Yesterday the traditional owners were happy with that and they said to theminister, ‘We’re happy with that option. It’s an option, an idea.’ They said, ‘We’re happy withthat one.’ It was different from the one that he proposed to us at Ayers Rock last week. Weare going to go back and talk about that option. The option last week that he put to us wasseven Aboriginal and five non-Aboriginal people on the board, and the one that he gave tous yesterday was the same number—six Aboriginal members and four—but instead of addingon people, more non-Aboriginal members on the board, he would remove one of the membersthat is on there now and replace that with an NT rep.

Senator ALLISON—Does the board agree with that suggestion?

Ms Willmot —Perhaps I can answer that by saying that basically the Central Land Councildeals with the consultation of traditional owners outside of the park, so it would probably bea question that you could ask them when they come and give their submission later. But forthe traditional owners living at Mutitjulu it means going back and talking to the community,having a community council meeting and then the proposals being put to the board at the nextboard meeting, if that is possible. However, we have got a vast number of other things thatare also on our agenda at the next meeting.

Senator ALLISON—Are you able to tell the committee how long you would like to havefor that process?

Ms Willmot —I do not think we have actually thought about a time, other than that it willtake quite a bit of time to consult with Aboriginal people in Mutitjulu as well as outside ofthe park itself. We have to remember that it is actually pulling together people who aregeographically miles apart, as well as sustaining an interpreter, making sure that you have gotinterpreters that are available to actually do the consultation. So I would say within a fewmonths, at least.

Senator ALLISON—In your submission you say that one thing you are worried about isthe present arrangement where the minister disagrees with advice from the director, but theminister must table that disagreement in the parliament so it is open to public scrutiny. I thinkin your submission you say that this process would be gone with the current proposal. Myquestion is: has there been an instance of the director not agreeing with the minister and thematter has gone to the parliament?

Mr Tjamiwa —Yes. In the past there has always been where the minister thinks differentlyto the board and the director, but the minister and the director and the board should bealtogether like that, thinking the one thing to enable the proper running and joint managementin the park.

Senator ALLISON—Does one concern that you have relate to the director being closer toyour board than the minister would be? Are there many occasions when you can talk with thedirector? The director’s position makes it easier for you to communicate than it would be tocommunicate to the minister?



Mr Tjamiwa —Yes. It is very good that the director is there and that they see him at theboard meeting and they can talk to him because the director is like a road to the government,to the minister, and they can see that link. They can see it in that person, and their worriesthey can say straight to him across the table, and they know that he will go back to thegovernment and tell them their story. It is important to have that link, that visual link.

Senator ALLISON—Did you explain that to the Prime Minister when you met with himthis week, or last week, and what was his response?

Mr Jingo —He is thinking about doing the changes and putting an NT rep on the board.Ms Willmot —Sometimes questions become really difficult to understand. It depends on the

way you actually put them, especially when people feel like the question has been answeredbefore. They are thinking that you have asked another question. So it is very hard translatingit.

Senator ALLISON—Shall I try again with that question? I think it is important. Yesterdayor this week or last week when you met with the minister, did you say to him that you wereconcerned not to have the Director of National Parks and Wildlife on the board and not to beable to talk directly with him? Did you raise that with the minister and, if you did, what didthe minister say?

Mr Jingo —With the removal of the director, if they take out the director, there are goingto be concerns and worries. More is going to come out in the future for the Aboriginal people,for the traditional owners of Uluru-Kata Tjuta, in them having the power to look after the placeand manage the place.

Senator ALLISON—Did you explain that to the minister?Mr Jingo —Yes, we voiced our concerns but he just kept saying, ‘It’s only a minor change.’Ms Willmot —What I can say is that I remember the question specifically because I needed

to get the minister to explain exactly how that process would work once the director’s positionwas going to be abolished, and he could not find an explanation so that Anangu couldunderstand what was actually going to happen administratively in regard to the abolition ofthe director’s position. So we are not clear, and the minister could not give us a clear definitionas to administratively what would happen and how we would have better access and whowould actually take that position.

Senator ALLISON—We are talking about who on the board would report to the minister.My question is: if it was the member from the Northern Territory, if what was agreed finallywas that a Northern Territory member of the board was in that position of reporting to theminister instead of the director, would you be concerned about that?

Mr Jingo —We want the minister to come up to have a meeting with all the traditionalowners at Uluru, when all of the traditional owners are there, and to tell us exactly what optionhe is going to take so that they can talk about it right there and then and make sure thateverybody is happy. There are 250 other people and we are representatives and we cannotanswer that question.

Senator ALLISON—Thank you.Senator MARGETTS—The management and the care that the board and the community

take in looking after Uluru is worth a lot to the Northern Territory, I assume. This might besomething that other people can answer as well. Has anybody any figures on what benefitsthe Northern Territory government gain from the work that you do in looking after Uluru?There are other people that I should ask that question of. On the other side of it, what are the



basic services that you believe are lacking? What kind of services in health and education doyou believe are lacking which the Northern Territory government ought to be providing foryou?

Mr Jingo —Through our community council we have put in submissions in the NorthernTerritory and asked for money to fund community stuff and we have never got any financialassistance with that, and the same with ATSIC. Mutitjulu has not been given the funding thatother Aboriginal communities in the Centre get. In the last couple of years the park has alwaysbeen helping the community with infrastructure. One of them is housing and there is also otherstuff that we have not had financial assistance with.

Ms Willmot —Perhaps I could just say that the Central Land Council instituted a projectlast year with a gentleman named Pritchard. Maybe they could talk a bit later, when they givetheir submission, in regard to looking at the economic strategy in that region and wheremoneys are going. I can tell you now that traditional owners get 25 per cent of gate moneysat Uluru and they also get rent money, but the bulk of that goes to the Aboriginal AssociationsAct and is distributed to all the traditional owners who belong to Uluru. It does not all cometo Mutitjulu and, given the fact that there is a billion dollar industry that is called ‘the Resort’on the other side of the—

Senator MARGETTS—Sorry—that is a billion dollars a year?Ms Willmot —It is over a billion. I cannot give specific numbers. I am sure that the Central

Land Council in their report, when it is finished, will probably be able to give you the specificfigures but—

Senator BOLKUS—That is the resort.Ms Willmot —The Yulara Resort, Ayers Rock Management. Aboriginal people at Mutitjulu

have not really benefited from the moneys from the resort. Given that they live in what mostAustralians consider a very affluent region in regard to the amount of tourism that comes there,they have suffered the consequences of that by having limited support and funding from theCommonwealth and no funding whatsoever from the Northern Territory government. Theessential services are substandard and have been provided to date by Parks Australia who arenow seeing that they want to get on with park management. Yes, the Northern Territorygovernment should be providing those services but to date they have not been, along with allof the other essential services that are required for a community to be healthy andenvironmentally friendly and happy.

Senator MARGETTS—Do you know of any Darwin communities who have to raise theirown money for their own health services and schools?

Ms Willmot —No, we do not.Senator MARGETTS—What is wrong with the Northern Territory putting a condition that

they will provide those services only if they get a position on the board?Ms Willmot —Can you say that again?Senator MARGETTS—What is wrong with the Northern Territory telling you that they

will be prepared to consider providing those services only if they get a position on the board?Mr Jingo —I do not want to answer that question before it is finalised with the minister who

is going to be on the board exactly. If the NT government is going to be on there then we cantalk about that after. There are two things you have to think about. You have to doconsultation slowly and think about things properly, think it through carefully and explain itclearly. They are the two things that have to be done and the traditional owners are dealing



with the Canberra government, but there is also the Northern Territory government we haveto deal with. So it has to be done slowly and carefully and clearly so that everybody is happywith an arrangement they are going to put in place in the future. If you do not do things slowlyand carefully then the Northern Territory government might not be happy with it and theymight get upset with these people, the traditional owners of Ayers Rock. That is not good forthe community.

Senator MARGETTS—Has the community and the board made changes in the past to suitother people’s needs, or have you always resisted any changes? Have you made changes tosuit other people’s needs in the past?

Mr Jingo —No. Going back to the consultation process, the minister should have gone upto speak with all the traditional owners first before coming up and saying, ‘This is a proposedlegislation bill that I’ve made and these are the two changes that I’m going to make.’ Heshould have gone up there before doing all that paperwork and spoken to the people.

Mr Tjamiwa —Yes, he should have gone up and done consultations first with the peopleand that is the proper way of doing things in Aboriginal law. You go up and talk first beforedoing certain things. With the bill they are not saying to block it, to throw it in the bin. If thereis more consultation we will think about those changes so that we can come to an agreedarrangement that everybody is happy with. In the past I have known about other nationalparks—Kings Canyon Park which is next to Uluru or not far—we know how it is run. It isdifferent—it is not proper joint management like Uluru-Kata Tjuta. We know how they runother parks in the Northern Territory government and that is not proper in our view, becausethe Aboriginal people from the area are not in joint management working as Uluru-Kata Tjuta.

Senator MARGETTS—Just to clarify that, the minister’s office told me they had to makechanges by legislation because the park management will not make changes. What you aresaying is the park management is prepared to negotiate on changes but it has to be done inthe right way.

Ms Ellis—Yes, that is what Tjamiwa said, yes.Senator MARGETTS—Thank you.CHAIR —That concludes this segment. I would like to thank you very much for appearing

before us today and for the presentations you have made. I assure you the committee will bearin mind your evidence when making its report. Thank you very much.

Ms Willmot —Thank you.CHAIR —We now call the Central Land Council.



[12.23 p.m.]KEYES, Mr Antony David, Senior Lawyer, Central Land CouncilTILMOUTH, Mr Leigh Bruce, Director, Central Land CouncilJOSIF, Mr Paul, Coordinator, Office for Joint Management, Mut itjulu Community Inc.

CHAIR —The committee prefers all evidence to given in public but you may at any timerequest that your evidence, part of your evidence or answers to specific questions be givenin private and the committee will consider any such request. I point out, however, thatevidence taken in camera may subsequently be made public by order of the Senate. Thecommittee has before it submission No. 595 dated 15 September 1998. Do you have anyalterations or additions to your submission that you would like to make before making anopening statement?

Mr Keyes—No, we do not.CHAIR —I now invite you to make an opening statement.Mr Keyes—Does the committee also have the land council’s supplementary submission?CHAIR —Yes, we do. Proceed.Mr Tilmouth —I think we can cut possibly very quickly to the chase with this. There seems

to be an across-the-board policy in relation to the department of the environment and theminister in cahoots with the Northern Territory government and, to a certain extent, in cahootswith the minister for aboriginal affairs. There seems to be a strategy or was a strategy in placebased on the wonderful day when the Northern Territory becomes a state. These strategies havebeen in place for some time. What you have with this Environment Protection and BiodiversityConservation Bill is a cutting across of the rights of indigenous people, whether it is in relationto the board of management of Uluru or in relation to the Reeves report or in relation to awhole range of other issues currently going forward.

This argument, unfortunately, impacts quite strongly on the processes in relation to Uluru.I will talk about Uluru and it is very important that these issues are stated up front, becauseit is a continual pattern. The pattern is: failure to recognise Aboriginal cultural heritage in theenvironment; the failure to protect Aboriginal culture and intellectual property rights in thefield of biological research; the abdication to the states of the Commonwealth internationaland constitutional legal and moral obligations to protect the environment and to support landand cultural aspirations of indigenous people; the failure to include Aboriginal people in manyof the assessment, management, approval and control mechanisms; and the failure to properlyconsult and negotiate with Aboriginal people not only about the provisions of the bill but ina way that is consistent with the joint management principles of working together.

These are not the only points that I would like to make, but I think these are very salientpoints and part of the UNESCO’s finding, as well, in relation to Kakadu—this argument aboutthe landscape and cultural heritage place, but ignoring the living culture in relation toAboriginal people—is not only a major concern with indigenous people in this country butalso internationally. What you will have over the next six months is a debate in relation toUNESCO’s position in Kakadu. I understand that these have been dealt with in othersubmissions and in evidence. I mention one here: section 70 of the National Parks and WildlifeConservation Act 1975 says there is nothing in the act that affects the entitlements ofAboriginals to exercise their traditional land rights. That is a Commonwealth act, the NationalParks and Wildlife Conservation Act of 1975. In the new rule there is no equivalent of section70 in the new bill. This seems a small matter but section 70 assures that traditional owner



rights prevail over non-Aboriginal conservation interests within proper limits. The omissionof section 70 sends a quiet but clear message that is consistent with the entire structure of thebill. The existing respect of land rights, if this system is not rectified, will not continue.

Some other general matters are mentioned in our principal and supplementary submissions.Unfortunately, our attention has been diverted to a few important provisions affecting Uluru;otherwise we would address these other general issues more adequately. What is the big dealabout Uluru? That is the question. Uluru-Kata Tjuta National Park is a beacon for land rights.We remember the hand-back, the land claim, the political agenda, the statement by the ChiefMinister of the day about Uluru hand-back, not just in the Northern Territory but throughoutAustralia and around the world. If you go anywhere in the world—

CHAIR —Can I interrupt you just briefly? The ABC have asked if they can record whatis being said. Is that okay with you?

Mr Tilmouth —Yes. They have used things against me in the past. I have got no problems—another one won’t hurt. You see Uluru on most of the advertisements for tourists throughoutthe world. You see Uluru in relation to a whole range of activity by indigenous people asbeing the beacon, if you like, that exemplifies Aboriginal traditional ownership. Why? Becausethe traditional owners and the directors of National Parks and Wildlife have made a successof a joint management structure. Uluru joint management partners are widely recognised fortheir achievements. The board points out in its submission that the park won the UNESCOPicasso Medal in 1995. So it is not just a small issue we are talking about. We are talkingabout probably one of the most significant parks in the world. This rates alongside our northernrelations with Kakadu.

How does non-Aboriginal law support joint management? The board chairman mentionedthat joint management is supported by three non-Aboriginal legal sources: the land rights act,the National Parks and Wildlife Conservation Act and the park lease. Unfortunately these arethe very acts that are now under threat. They are under threat from the federal governmentin relation to the Reeves report. The land rights act is under threat from the new heritage act,biodiversity act and so forth. These very cornerstones of joint management and jointcooperation are now part of a political process to remove or minimise Aboriginal control inrelation to the park.

These things need to be understood together and in an historical context. The land rightsact and the national parks act were both amended in 1985 specifically to allow the park tobe returned to its traditional owners and to enable the establishment of a board of managementwith an Aboriginal majority. The condition of the hand-back was that the traditional ownerslease the park to the director of national parks and wildlife. That is a 99-year lease: it is alease, it was not given. It was a lease to allow you to operate. That was the agreement andtraditional owners have stuck to their side of the deal ever since. The lease is not an ordinarylease. It is not a ‘hands off’ lease. The lessors, the traditional owners, said very clearly in thelease they wanted a central role in the management of the park alongside the director. Thisis a fundamental concept of joint management.

There is also a legal argument there. When someone gives you a lease anywhere in thiscountry, there are certain caveats and covenants in relation to that lease and they must bemaintained if you want to enjoy the use of that lease. There is no-one in this country who cango off and lease something, then head off to parliament to get the legislation changed in themiddle of the lease. I think there are certain constitutional requirements and legal requirements



that would suggest that perhaps this is not the done thing. This is a fundamental concept ofjoint management and the essential ingredient is consultation and negotiation.

Nothing happens in joint management without traditional owners’ consent. Sometimes thatseems inconvenient to whitefellas but for the inconvenience you really get joint management.Without it you get a Northern Territory government style of joint management. There isenough evidence around with the Devils Marbles, a very significant sacred area to Aboriginalpeople; the Kings Canyon, Watarrka National Park, and the Dulcie Ranges National Park,which has a very significant number of sacred sites for the Eastern Arrernte who do not haveany say at all in management in those parks. In fact they were refused entry into Dulcie ona number of occasions.

A fundamental point is the lease on the national parks act provides ways to negotiate thechanges the minister wants, but with this bill he proposed not to negotiate but to use force.Had he sought consent he might well have obtained a better result with a lot less fuss.Unfortunately, as I said, the balloon went up: we had a Northern Territory government thatwas deciding it would be a state and, unfortunately, with the Chief Minister’s powers ofpersuasion, everyone was caught up with the euphoria of the Northern Territory becoming astate so these Aboriginal issues were ‘fait accompli-ed’ in the process.

A letter in support: the minister claims to have legal advice that the relevant parts of themain bill and the consequential provisions bills are legally sound. We do not agree with him.We have a different point of view. Most importantly, we say that if joint management is tosurvive, the government must respect the traditional owners’ rights, negotiate with them, seektheir consent to any of the changes to existing successful joint management arrangements and,if that consent is not forthcoming, abandon the proposal.

The history of land rights in the Northern Territory shows that traditional owners will notrefuse consent to matters affecting their land unless there is a very strong reason to. Aboriginalpeople are much more comfortable negotiating agreed outcomes but the clear prerequisite isgood faith on the other side. I noticed a question to the board about the Northern Territorygovernment coming in to listen to their problems. That is a bit like inviting in the Ku KluxKlan to show you how to hang people properly. So you do not do it; they are just not invited.

In the wider context the board chairperson mentioned the Environment Protection andBiodiversity Conservation Bill as part of a broader systematic attack on Aboriginal rights. Thatcontext includes a long history of opposition to land rights by the Northern Territorygovernment. With this new Chief Minister there is a glimmer of hope in relation to being ableto sit down and negotiate with this bloke, but unfortunately I think he would be a captive tothe policies of the remainder of the government. The Northern Territory stridently opposedthe hand-back of Uluru.

These are the facts. The traditional owners and the Commonwealth offered the NorthernTerritory a seat on the board, despite the venom of the opposition to the hand-back. TheNorthern Territory refused to take the seat. The Northern Territory has since refused repeatedrequests for Uluru style management in other parks it controls. What is the real agenda? Theold adage is, ‘If it ain’t broke, why fix it?’ It is never more applicable than it is to SenatorHill’s proposal to change joint management of Uluru. Ministers say that these changes areminor and those who are not familiar with Uluru joint management might agree.

There are reasons for and against the changes. For example, the Territory is on record assaying it wants management control of Uluru and Kakadu. The most important point is thatif they go ahead they will establish a precedent for future changes by the Commonwealth



without the traditional owners’ consent. That means we have taken the lessor out of theequation, the lease is now non-existent and you will be able to change the covenants of thelease without the lessor’s approval. That would spell danger for joint management, and jointmanagement is too valuable to even think about endangering in that sort of way.

You have to remember that what we are talking about is not only the international icon thatis Uluru in relation to the international community that visits and enjoys Uluru and theenvirons, it is also starting to become, and will become, a very focal point in relation to theOlympic Games. This is where the Olympic torch will first touch down in Australia. This iswhere people will see it for the first time. They have stated this in a pre-emptive process inrelation to UNESCO with Kakadu, but they will see for the first time in real life the way thatthis federal government and this state government that we are talking about will and does treatAboriginal people in relation to land rights, issues that affect Aboriginal people’s rights inrelation to national parks and, above all, the proposed non-involvement of Aboriginal peoplemanaging their land and subverting a lawful process that gave rights to Aboriginal people tomanage their country, and then in turn—quite rightly so and for all Australians—lease backUluru to the government to look after and joint manage with them for all Australians.

We now have a process that moves those Aboriginal people, as indigenous people, out ofthe equation for political expediency to kowtow to the proposal by the Northern Territorygovernment.

CHAIR —Thank you. Do you, Mr Keyes and Mr Josif, want to add anything to thatstatement? I point out we do have a time frame to meet and the senators want to ask questions.

Mr Josif —I understand that. I just want to make clear to the committee here that the CentralLand Council is speaking for itself and I represent the Office of Joint Managementindependently.

CHAIR —Yes, if you would like to make a separate statement, please go ahead.

Mr Josif —I would like to say that in all of this the senators might be questioning and sayingwhy is it that this—which is what we are all here about and talking about, the EnvironmentalProtection and Biodiversity Conservation Bill—is such a controversial bill? What is wrongwith it?

Senator BOLKUS—I think we have already worked out a lot of reasons as to why it iscontroversial.

Mr Josif —That is right, and all I am saying is that I have a date stamp on this that says16 July 1998, which was the first time that we saw this bill. Previous to that the Mutitjulucommunity’s understanding, the traditional owners’ understanding and the board’sunderstanding was that this legislation would not affect the operation of joint management atall, it would all be okay. That was in writing. It was a federal government assurance inwriting—not a letter, but a publication that went Australia wide. So people did relax a bit andI must say they relaxed in the face of last year having to face a review of the land rights act,which affects people profoundly.

The local government act of the Northern Territory being reviewed and changed affectspeople profoundly. The biodiversity bill of course, and statehood and that whole issue ofstatehood in the Northern Territory affect people profoundly; a new plan of management beingdeveloped and involving people—Anangu and non-Anangu—at levels that they have neverbeen involved before, really going somewhere with joint management, and of course the leaserenegotiations as well. That is not to mention the ongoing business of just doing joint



management and, I may add, the immense responsibilities that Anangu have in maintainingTjukurpa and looking after the country. It was something of a relief to see in this publication,‘Look, it will be okay. We don’t really have to worry about it too much but we’ll check itout. What can we check out? Well, there’s nothing here yet.’

Then recently we had this war and peace of the environment lobbed on us and we are thenfaced with a task for which we are not funded to actually have this translated and get thismoved amongst traditional owners in a way where there is a good understanding and a goodability to effect something that affects their lives profoundly. We have done that to a pointbut this document is by no means being as carefully analysed and understood in its entiretyby people as it should be and I guess that affects something that was raised earlier about time.I think it was you, Senator Allison, who spoke about time.

I would say if we had a year to chew on it we might be able to come up with somethingdecent. I think it strengthens the point of the need to negotiate. Why crack a walnut with asledgehammer? The minister certainly has come up to Mutitjulu three times and talked atpeople. The comment of people is, ‘Why hasn’t he taken any notes? He’s not listening to us.He’s just telling us what he wants to do.’ People are wide open to negotiate. It is somethingwe do every single day in the joint management of Uluru-Kata Tjuta National Park, and wedo it well, and there are 350,000 visitors a year who also believe that we do it pretty well.

Mind you, those visitors reap for the park about $5 million a year. I did some quickcalculations in response to your comment there, Senator Margetts, and I came up with a figurethat the economic benefit to the Ayers Rock Resort is very conservatively a turnover of around$70 million a year. We are looking at a vast gap. So there are immense benefits to this $200million plus resort that lives on the edge of Uluru-Kata Tjuta National Park and feeds off it.It is something of a symbiotic relationship, but I know who the poor partners are and who therich partners are, and traditional owners certainly know that as well. It is a topic of hotconversation and discussion almost every day—the inequality and the lack of equity in thingslike employment—and certainly as residents of the Northern Territory at Mutitjulu we are allvery cautious about questioning the NT government because they might cut off the verymeagre tap of funds that do come to us anyway.

Compared to other Territory towns we get virtually nothing. There is a pittance that comesin for the school. It is only this year that funding has been received from the IndigenousHousing Authority of the Northern Territory—which, mind you, is a bilateral agreement, itis Commonwealth money anyway—to build three houses. We are moving somewhere but veryslowly, and the NT has been very reluctant to in fact replace the Commonwealth money thatcomes off the gate—the punters pay for our power and water basically—and we are self-funding, and I would have thought that was something dear to the heart of the presentgovernment, that we actually run a very self-sufficient operation. In fact, government fundingto the park has reduced substantially in every year over the last several years. Now we arelooking at less and less to do more and more, so joint management is under a lot of pressure.

We still get on and still do the job and negotiate and talk every day with the governmentrepresentatives in the park, and then this is dropped from a great height on people withoutdiscussion and people are going, ‘Why won’t they talk to us about it? Let’s negotiate. Let’smake things better.’ I think that is where we stand. I have said a bit of a mouthful there, butthat is what I would like to say as an opening comment. Thank you.

CHAIR —Thank you, Mr Josif. I would like to just ask you a couple of quick questions.This is a question that I asked the other group: if the Northern Territory government’s record



of dealing with and providing services to your park is so poor, isn’t there an advantage inhaving a Northern Territory representative on the board so that they become aware of theproblems and can understand the issues? Then by that process they may become more helpfulto you. I will come back to you, Mr Tilmouth. I would like Mr Josif to answer.

Mr Tilmouth —I want to support his answer.

Mr Josif —Could I answer that question in two parts. Firstly, thank you for asking thequestion because it is an important question. The first part is: I can only repeat that thenegotiation of this arrangement could have been taking place for, as we know, a year and mayhave been resolved, because it is true—

CHAIR —No, I accept the issue of consultation not occurring because that point has beenwell made, but just the specific point.

Mr Josif —The second part is: the board of management is quite separate to the MutitjuluCommunity Inc. who take up the role of local government functions in the park. Rightfully,the Northern Territory should be talking to that organisation as well as the board and makingdirect contact in that way, rather than in a somewhat convoluted way. Actually, they do havean input and the convoluted way was by virtue of the Northern Territory World Heritage AreasMinisterial Council, where the minutes clearly state that the Northern Territory governmentministers asked Senator Hill and said, ‘Hey, look, what about if we can have the NorthernTerritory government on the board of Uluru and Kakadu? We’d like that because we want totake them over,’ and Senator Hill said, ‘Sure, no worries. I’ll legislate for that,’ and that isexactly what he did.

This ministerial council and its standing committee are a direct arrangement to form aperfectly legitimate relationship between the Commonwealth government and the NorthernTerritory government, to wit the ministers for environment and tourism of both governmentsmeet together, the four of them, and they form the ministerial council, and they discuss mattersof world heritage. I do not think I have to emphasise it, but I repeat: the two world heritageareas in the Northern Territory are both Aboriginal land. There are no Aboriginalrepresentatives on this world heritage committee which talks about all sorts of things; forexample, education and particularly employment, and Aboriginal employment specifically.

They have never involved Aboriginal people in those discussions and still now we have notseen any of the paperwork that goes with it. When I say ‘we’ I mean that in the communitywe still await what they have talked about. It is not necessarily secrecy; that is probably thewrong word to use. It is this hidden agenda; things are going on that no-one is involved in.So really the NT government does have a big say and role in what goes on in Uluru-Kata TjutaNational Park at that level.

The other aspect is that the NT is saying, ‘Well, yes, we’ll provide these things. We’ll giveyou schools and powerhouses and all these things,’ and it has been very loosely suggested,but there is certainly nothing any more tangible than hot air. I do not mean that disrespectfully,but there has been no solid proposal put up to say, ‘Okay, here’s what we do.’ They are veryempty promises, Senator.

CHAIR —In a way that is the past history though, isn’t it? You do not have any confidencein what they may do if they are put on the board.

Mr Tilmouth —You can only go by the record.

Mr Josif —No, we are talking about right up to now, and certainly the Commonwealth haswritten and started talking with Mutitjulu Community about the provision of those services,



but the NT government has been remarkably silent in terms of what it would do and, in fact,we suspect that the NT government would again want the Commonwealth to bankroll any largecapital works that needed to be done, which again is fair enough. There are programs that doexist, but why take an NT government rep onto the board for that reason alone, and why notnegotiate that? I think that is the key point: we do not know, and it is kind of like buying apig in a poke.

CHAIR —It is just interesting to me because there still will be indigenous control of thepark board even under the proposal which apparently was discussed with the ministeryesterday, and it seems the minister is talking about taking off one of the other members andsubstituting a Northern Territory person. I can understand what you are saying and what yourconcerns are about hidden agendas, but I am still a little puzzled as to why you do not seeit as valuable to have somebody from the Northern Territory government there to actually seeand understand what your problems are in a direct way.

Mr Josif —It could be valuable, and I am really not in a position, subject to very recentsuggestions, to pre-empt what traditional owners may or may not decide over a period of time.

CHAIR —I understand.

Mr Josif —So I do not think it would be constructive to answer that. But I should make itclear that the principle of having a Northern Territory government person is not the problem.It is more the way in which it has been done, and I have made that point.

CHAIR —I understand the issue of consultation.

Mr Josif —So I really could not pre-empt what traditional owners may decide in the futureabout recent events.

Mr Tilmouth —The point that I would like to make is that we can only deal with a recordof a government. You have a community that is sitting there beside the national park. Youhave got two entities. One is the board and one is the community council. That communitycouncil should anyway have received those services regardless. They are citizens of theNorthern Territory. They are part of the weighting system that the Commonwealth governmentwould have received in relation to the Grants Commission. They would have been listed asrecipients of the Northern Territory government’s program in relation to housing, essentialservices, roads and a whole range of other things.

Unfortunately—and this is the same story that you get out of Kakadu—the proposal is, ‘Youshould live on your royalties, the gate moneys coming in,’ and at the moment the gateprovisions on the Yangkuntjatjarra Kutu, which is the royalty association, 25 per cent of theirfunds go across to assist Mutitjulu Community on administration. This is the percentage thatcomes off the gate money from people coming in through the park that goes off to assist thecommunity on administration on essential services. There is your record up front. Whetherthe Aboriginal people agree or disagree with the proposal of a Northern Territory governmentperson being on the board, you can only go back to the record of the current enjoyment ofthose services that you should receive. It should not matter whether there is a NorthernTerritory government representative on the board; the Mutitjulu community should be receivingthose services anyway. That is the first point.

The second point is that under Reeves that gate money will now not go to the communitybut will go to the Northern Territory government in Darwin. That is a new proposal comingout of the Reeves.

Senator ALLISON—Sorry, Mr Tilmouth, coming out of?



Mr Tilmouth —Under the Reeves document, which is a review of the Land Rights Act,which is the basis of the lease with the Commonwealth government in relation to Uluru-KataTjuta National Park.

Senator ALLISON—It was tabled in the Senate yesterday and we have only just got it.Mr Tilmouth —Yes. The Reeves report has recommended that the gate moneys will now

go to direct to the Northern Territory Aboriginal Corporation in Darwin and the NorthernTerritory government. It will not be going to the traditional owners.

Senator BOLKUS—Can I start off by thanking both organisations for very high-qualitysubmissions. I think when one looks at them there are some pretty compelling arguments. CanI take you, Mr Tilmouth, to a point you made which I think may mean that the governmenthas got enormous problems with parts of this legislation, and it relates to property rights. Ithink the general understanding of the law is that if you own property, a very important partof owning it is being able to do what you like with it, and it seems to me that under thislegislation the property that is owned by the owners, the lease is going to be transferred tosomeone to whom I do not think they have given consent as yet. Have they given consent toany transfer at any stage from the director of national parks and wildlife service?

Mr Tilmouth —At this stage there is no consent. There is a proposal on the table, and thatis in the form of legislation, that dictates the consent. As far as the Aboriginal traditionalowners are concerned, there has been no consent, no consultation on this process and, as I saidearlier, it is a very important factor in law that it is Aboriginal freehold for a starter, thereforeit is freehold land. If you have leased that land to somebody and somebody then leases on tosomebody else without your permission, I think there is a provision for a breach of the leasein that regard. Whether it is within an internal government structure or not is not the point.

Senator BOLKUS—Under the constitution, if you affect anyone’s property right—you donot have to take it all away—if you affect it detrimentally, then you have got to pay itcompensation. Has the minister in any way discussed compensation with the traditionalowners?

Mr Keyes—If I can just clarify, Senator Bolkus. Just going back to the previous question,not only has there been no consent, there has been no request for consent. As Mr Tilmouthjust pointed out, the first that the land council or the traditional owners knew of anything inwriting of the detail of the minister’s proposal to transfer the lease from the directive of theCommonwealth was when we, and indeed the rest of the world, saw the Environmental Reform(Consequential Provisions) Bill tabled in the Senate at the end of last year. Could I take thecommittee to schedule 4, part 2 of that bill, and particularly item 8, which is entitled ‘Transferof director’s assets and liabilities to the Commonwealth’. Subitem (1) would provide asfollows:An asset, estate or interest held by the director immediately before the commencement of the new act—

and that is a reference to the main bill—vests in the Commonwealth by force of this subitem.

That is very clear language to traditional owners, saying, ‘Whether you like it or not, theinterest of the director in the lease of this park is automatically transferred to the Common-wealth.’ But there has been no invitation to consent and no consent has been given.

In terms of the constitutional requirements, our understanding is like yours, Senator Bolkus,that the Constitution requires that any acquisition by the government that is a compulsoryacquisition must be compensated on just terms. It is difficult to say how an acquisition of the



sort contemplated by item 8(1) of that bill would be compensated on just terms because, ofcourse, it is not the underlying property that would be affected by the proposition; it is theproperty right that subsists in the lease. That property right is the one that members of theboard of management talked to the committee about earlier this morning. They made a dealwith the Director of National Parks and Wildlife. Included in that deal was a covenant whichis clause 8(2) of the lease, which provides that:The director as lessee shall not sublet, transfer, assign or otherwise part with the possession of the parkwithout the consent in writing of the traditional owners.

That is a long way of saying that the effect of the consequential provisions bill is simply tobrush aside the existing requirement for consent, and we would argue that that requirementfor consent is itself a property right, which item 8(1) purports to expropriate without anycompensation at all.

Senator BOLKUS—So there is no compensation, which means constitutionally that thelegislation has probably got a flaw in it which needs to be fixed up, but clause 16(1) of thelease, I am informed, has an acknowledgment that:The enactment of legislation that is inconsistent with the lease and is substantially detrimental to theinterests of traditional owners is deemed to be a breach of a fundamental term of the lease.

Mr Keyes—Indeed.

Senator BOLKUS—And subclause (7) of clause 16 defines ‘substantially detrimentalmatters’ to include an actual proposed transfer, assignment, sublease or parting with apossession.

Mr Keyes—Quite.

Senator BOLKUS—So basically you have got an acknowledgment by the Commonwealthin a lease that any legislative enactment which transfers the property is detrimental to theinterests of the owners. So you have got an acknowledgment there that there is a detrimentalincursion on the property rights, but you have got no compensatory provision in the legislation.Has the minister shown you the advice that he says supports his position?

Mr Keyes—No. Just on the provisions of clause 16, the committee is probably aware thatthere is, I think, an identical provision in the various leases of Kakadu National Park; it isclause 12 in those leases. Indeed, the Northern Land Council, relying on the words fromsubclause (7) to which you have just referred, has issued a notice to the director as requiredby the other parts of that clause 12, claiming that in fact those leases of Kakadu National Parkhave been breached. Needless to say, the Central Land Council has made the traditional ownersof Uluru-Kata Tjuta National Park aware of their rights under that clause. That is simplyunderlined. I mean, you have heard the approach traditional owners take to joint management’scooperative approach. They are not interested in relying on whitefella legal concepts if theydo not have to, but at the end of the day they are aware that they have those rights under thelease.

Senator BOLKUS—Also by this legislation, is it a fact that by passing such legislationwhich transfers a lease, under the provisions of the lease the owners can then proceed toterminate the lease? Is that a specific clause in the lease between the owners and, at themoment, the director of national parks and whoever might take his position?

Mr Keyes—The minister has made a great deal of saying that none of the provisions in thelease will change, that the legislation only substitutes one lessee for the other and that theexisting provisions will remain in force. That being so, clause 16 that we have been discussing



would remain in force. Assuming the legislation was effective, those provisions would remainin force as between the traditional owners and the Commonwealth, and it may be indeed thatthey would wish to take those provisions only once the transfer purported to take effect.

Senator BOLKUS—It seems they have got problems on a number of fronts there. Who arethe four white non-traditional owners on the board of management?

Mr Keyes—The Director of National Parks and Wildlife is a member ex officio. There aremembers nominated by firstly the Commonwealth environment minister and secondly theCommonwealth tourism minister, and finally there is—I forget the precise wording; I can getit to the committee on notice, if you wish—an arid land ecologist experienced in themanagement of arid lands.

Senator BOLKUS—So to put on the Northern Territory rep we will have to get rid of eithersomeone with an environmental concern, a tourist concern, arid lands concern and—

Mr Keyes—Director.Senator BOLKUS—Yes. For 15 years now the Northern Territory government has wanted

total control rather than joint management from before the handover to even a few monthsago. Is there any indication that they would be happy with joint management now, or is it stilltheir latest stated express policy that they want control of Uluru and Kakadu?

Mr Keyes—The latest express policy that we are aware of is a statement made by theNorthern Territory Minister for Parks and Wildlife to the7.30 Reportin May 1998. I thinkhe is quoted in our supplementary submission. The statement was made at the time of the firstmeeting of the World Heritage Ministerial Council that the committee has heard about thismorning. The minister was asked by a journalist what was the point of having one seat outof 13 or 14 in that case, as the question related to Kakadu National Park. In response theminister made it quite plain. I think his words were to the effect of, ‘We want managementcontrol of those two parks,’ and they have never made any secret of that fact. That is part ofthe reason, and it goes back to Senator Eggleston’s earlier question about concern at theTerritory’s previous record of joint management. That statement is less than a year old andwe have been advised of nothing different. The latest statement from the Territory governmentis that they want management control of the park. For the land council to advise traditionalowners that the proposal is as innocuous as Senator Hill would make it seem would benegligent on our part.

Senator ALLISON—If I can just pursue this question of the non-indigenous members ofthe board and what the likely scenario might be under an appointee of the Northern Territorygovernment, is it reasonable to be concerned that there might be a swap between the NorthernTerritory and the Environment Australia representative, which would mean there was no directlink with the Minister for the Environment, and is it logical to then suggest that perhaps theadministrative link would then be the Northern Territory government? Is that one of yourfears—that there would be no other dialogue, no other method for dialogue with the ministerby the board, or are there other arrangements in place? Are there more formal procedures?

Mr Keyes—As the committee heard from the members of the board, this latest proposalfrom Senator Hill is just over 24 hours old and many of those detailed ramifications I do notthink have been considered in detail either by the traditional owners or the minister. One pointthat I think may be raised in the written submissions, but if it is not it is being raised withthe minister, relates to the effect of the consequential provisions bill on the current compositionof the board, assuming that there were no agreed changes between now and when theconsequential provisions bill takes effect. I refer to item 8(5) still in part 2 of schedule 4 of



the consequential provisions bill, which basically has the effect that after the commencementof the new act an instrument to which the director was party or that referred to the directorcontinues to have effect according to its terms, but as if the Commonwealth were a partyinstead of the director and as if the instrument referred to the Commonwealth instead of thedirector.

Senator Bolkus, in relation to the query about the preconditions of the four non-Aboriginalmembers, I have just recalled that the full text of the current section 14C notice establishingthe board, including the preconditions, is appendix 2 to our supplementary submission, so itis on the committee’s record. The effect of this provision of the consequential provisions billon that section 14C notice would be that the Commonwealth would ipso facto become amember of the board of management. A matter that we have raised recently with the ministeris who would actually occupy the seat. In the absence of contrary advice, one would expectthat it would be the minister, but it appears that the minister and his staff have not turned theirminds to that question, and we are told that we will be hearing some more about that. As towhich of the existing non-Aboriginal members the Northern Territory representative mightreplace, again, this is a matter that was raised—

Senator ALLISON—We can all only speculate on that, I guess.

Mr Keyes—Indeed.

Senator ALLISON—We need to look at worst-case scenario, I think.

Mr Keyes—Indeed, although the minister himself appears to be in a position of speculating,because it was a matter that was raised yesterday and again it appears that attention had notbeen turned to that question as to whether it would be, for example, the environment minister’snominee or whether it would be the director himself who would be substituted for theTerritory. Quite frankly, the concern that you have raised is one that we simply have not hadtime to think of, but it is a worthwhile concern and probably in the context of thosenegotiations we would be wanting to ensure on the traditional owners’ behalf that the existingrelationship between the board as a whole and the Commonwealth remains intact.

Your question, however, does very well illustrate the dangers in this proposal which, as wehave said before, appears on its face to be very innocuous but which has a ripple effect. Thereare all sorts of ramifications that we can speculate about now, but others that no doubt maynot occur to us until years later.

Senator ALLISON—Given that it is the government’s stated reason for doing this that theNorthern Territory would be brought into the community in some way and the needs of thepeople who live there would be appreciated, is there some way you can suggest we mightamend this bill to oblige the Northern Territory? Is there a trade-off here that can be writteninto the legislation which would see a member on the board but a commitment to a certainamount of services? Have you had a chance to think about that possibility?

Mr Keyes—There are certainly prospects for seeking trade-offs of that sort, but it comesback to what my colleagues said earlier. The services that the minister claims will magicallystart flowing after the Territory gets a seat on the board are services that should have beenprovided over many years.

Senator ALLISON—That is a given. Nobody would probably disagree with you there, butwe have got a bill in front of us and we have an opportunity to amend it, get it right. Youcould just indicate if you think that is a useless pursuit, but I am asking you the question, ifyou would like to go down that track.



Mr Tilmouth —Yes. The position that we have put to the Northern Territory governmenton more than one occasion is that most national parks within our area, if there was a reciprocalarrangement where they would become joint management proposals anyway, like KingsCanyon, the Devil’s Marbles, Dulcie Ranges—and we have got a new proposed park calledthe West MacDonnells—and even at the insistence of traditional owners in relation to thatdebate, there has been no mention of a joint management proposal. So we would be saying,‘Well, if you are really concerned about joint management, why haven’t you included otherpeople, other traditional owners in different areas around the Northern Territory, with jointmanagement?’ The only reason that the Nitmiluk National Park has ended up with a jointmanagement proposal is because of the arguments in relation to land rights and land claims,and this was part of the settlement process in relation to the Jawoyn. It had nothing to do withthe Northern Territory government’s normal policy of non-inclusion of indigenous people injoint management.

Mr Keyes—Senator Allison, there is one other prospect for negotiating and reciprocity onthis matter and it is a proposal that comes from discussions between the Kakadu board ofmanagement and the minister. The Kakadu board has indicated that they would be preparedto give the minister’s proposal for a Territory seat on the board some more seriousconsideration if in return the minister was prepared to amend either the act, if the bill doesnot get up, or the bill itself to provide that boards of management for Aboriginal owned parksbe incorporated as statutory corporations themselves, and in relation to the management ofthose parks that those new statutory corporations be invested with the current powers of theDirector of National Parks and Wildlife.

Part of the concern, as you know, about the abolition of the director is that he is anindependent statutory corporation. I understand the Kakadu board to be saying that, if hispowers were transferred to a new independent statutory corporation in the form of the existingboards of management, some of the concerns about having Northern Territory representationon the board would be alleviated and the proposal would be somewhat more palatable. Iunderstand that is a matter that was raised in some earlier Northern Land Council submissions.It has only been raised recently I think between the minister and the Kakadu board. The Uluru-Kata Tjuta board has been briefed on that matter. They see some attraction, some merit, inthe proposal but it is too early to say much more than that. It really needs some more detailedand timely consideration by the wider body of traditional owners.

Senator ALLISON—Nonetheless, that will not deliver any more services, will it?

Mr Keyes—Not of itself.

Senator ALLISON—Is there an opportunity to renegotiate the arrangement whereby a highpercentage of the gate comes to traditional owners? Will this throw up new opportunities fornegotiation?

Mr Keyes—That opportunity in fact is already there. One of the existing provisions of thepark lease is that the director is obliged every five years to sit down with the traditional ownersand the land council and consider whether any provisions of the lease should be reviewed,and in fact that process was gone through in 1993-94, so the current lease actually dates from1 January 1994 for that reason. The same provision is still there. It being early 1999 now, thefive-year period is upon us and, if we did not have all this legislation to deal with, we wouldbe well down the track of renegotiating the lease with the director.

Senator ALLISON—And who does the review and who makes the decision about whetherthere is a change or not?



Mr Keyes—The obligation under the lease is on the director to sit down with the traditionalowners’ representatives. That is really as far as the obligation goes. If the parties are unableto agree on—

Senator ALLISON—The parties being the Commonwealth and—

Mr Keyes—No, the parties being the director—well, formally the parties are the directorand Uluru-Kata Tjuta Land Trust, which is the body that formally holds the title on behalfof the traditional owners.

Senator ALLISON—So under the new circumstances described by the bill, who would dothat review?

Mr Keyes—If the bill went through in its present form and if our constitutional concernsabout it came to nothing, the parties to the lease would still be the land trust on behalf of thetraditional owners on one side, and the Commonwealth on the other. So the obligation wouldthen be on—

Senator ALLISON—A yet to be identified person. It could be the minister.

Mr Keyes—Perhaps I was unclear before. There is no legal problem with the Common-wealth being a party to the lease. Our problem there is about the lack of consultation andconsent. The problem I was really adverting to related to which individual would sit at theboard table.

Senator ALLISON—It is still a problem if this is not a statutory individual, isn’t it, as thedirector is now? You just cannot have any old person representing the government doing thisreview, as I understand it.

Mr Keyes—I see what you mean.

Senator ALLISON—It is this person with a statutory responsibility reporting to the ministerin a formal way and so on.

Mr Keyes—Yes. In its present form, if the consequential provisions bill went through, theobligation to sit down every five years and review the lease would be on the Commonwealth.How the Commonwealth discharged that responsibility, to be frank, I have not considered indetail, but I guess the obligation would fall upon the minister. It would be for the minister todecide whether it was the minister himself or some bureaucrat who actually sat down withthe traditional owners’ representatives to review the lease. If, for some reason, the traditionalowners were not satisfied with the individual who was given that task, they may be in aposition to compel proper performance of that obligation of the lease.

CHAIR —We have to go to Senator Margetts now because of time constraints.

Senator MARGETTS—One thing that occurred to me with the evidence that was givenby you and previous witnesses from the park management—am I imagining it or is there aninverse relationship: the greater the contribution of indigenous communities in the NorthernTerritory the fewer resources the Northern Territory government make available for basichuman services?

Mr Josif —Yes, that is right. There is, if you like, a money switching racket which meansthe more you earn yourself the more you are expected to be self-reliant and the fewergovernment resources that go into your community. It is seen there is a direct relationshipthere. The money that goes into Mutitjulu, a community of around about 400 people altogethernow, relies entirely on ATSIC money for one component of funds, and that is to do an entireadministration as well as to work within the context of the joint management of the park, plus



a share of rent and gate money. That component is added on and that is a fairly smallpercentage which goes to Mutitjulu. Without that rent and gate money the community wouldcollapse entirely. That rent and gate money has been actually spent to substitute NorthernTerritory moneys which are not spent or have not been spent on, for example, environmentalhealth, housing and other things.

What you are saying is true, and there is this move—as you are probably aware—in theReeves report recommendations that in fact people would have to apply for their own royaltymoney to do things for community purposes which includes essential services. So the moreyou earn yourself the more there is an expectation to spend that money on essential serviceswhich everyone else in the Australian community takes for granted or pays in some indirectway through rents or rates or something.

Mr Tilmouth —Just moving off the gate money scenario, at the moment gate money, I donot think, is taxable at this stage, but I am not sure—let me check that. But in relation to theroyalties for mining the proposal under Reeves is that the royalties would be used to supporthousing, health, education, essential services and the question now is: are those royaltiesprivate moneys? The answer is yes, because there is already tax taken out by the miningwithholding tax, by the Commonwealth. So those moneys are now actually private moneyswhich will be used now to provide state responsibilities, or proposed to provide stateresponsibilities in relation to housing, health and education and other services that, as far aswe are concerned, the Northern Territory government has already got funding to do.

Senator MARGETTS—To your knowledge has the Northern Territory government askedthe Commonwealth government not to provide it with grants to cover the people living inKakadu or Uluru? Have they said, ‘No, don’t give us this money from your budget’?

Mr Tilmouth —Paul Josif said that earlier, with the advent of the Indigenous HousingAuthority now all of a sudden finding money for housing. So one would assume that ATSICat some stage was in collusion—to a certain extent ATSIC public servants were in collusion—with the Northern Territory government’s position on Mutitjulu. I am not saying that as afact—I am not—but one would allude to that because of the very nature of the current housingprogram. Mutitjulu community could not get housing under the Indigenous Housing Authorityof the Northern Territory. It was only this year that they actually got three houses.

Mr Josif —That is right. With the advent of a lot of hard work to actually demonstrate thatthe community is in dire straits, in the Anangu community at Mutitjulu, comprising over 300people, those people live in 20 houses. So you can do your own sums. We have power cutscontinually which would be intolerable to people living in a city or a small country townanywhere else in Australia, for that matter. It is because we are just completely depleted withregard to essential services.

I might raise another scenario perhaps—and I think you were referring to it—there is a lotof pressure, a lot of personal pressure, with the depletion of these services, to say, ‘Yes, wewill grab anything that might mean we get a reprieve or some respite from the deprivationthat we are currently experiencing.’ If you put it together like that, everything will be okayif you have a Northern Territory government person on the board.

Senator MARGETTS—Like a Northern Territory member or—

Mr Josif —That is right.

Senator MARGETTS—another mine or—



Mr Josif —Then you will have light 365 days of the year. Then you will have more houses.Then you will get an additional schoolteacher. Then you will get other things that at themoment essentially the council has to go cap in hand to Parks Australia to get, because ParksAustralia are the responsible authority to provide those essential services.

Senator MARGETTS—This must have been happening over a long period of time. Hasanyone actually worked out how much money may have been withheld by the NorthernTerritory government over however many years this has been happening?

Mr Tilmouth —Even the current minister for Aboriginal affairs, in relation to his move toget the army to build essential services out in communities, could not at any stage find a figurefrom the Northern Territory government of the actual expenditure on Aboriginal affairs foressential services—housing, education or anything of that nature. There is still no figure tosay ‘We know what the figure is that goes in, in relation to the Grants Commission, throughthe fiscal equalisation strategy from the Grants Commission,’ but if you tried to identify thosefigures throughout the financial year of the Northern Territory government’s operation, youwould not be able to place a real figure on what has been spent on Aboriginal affairs.

Senator MARGETTS—Yet half that figure, I believe, came out of the ATSIC budget asnew funding or something?

Mr Tilmouth —Yes.

Senator MARGETTS—Over a couple of years we have been told by Optus andVodafone—and this probably sounds like something that is not related—that they would beabsolutely outraged if analog phones were to continue because they had a firm agreement withthe government and they would demand compensation if their revenue had been affected bythat and there was a retrospective change to that agreement that was in legislation. Do yousee any parallels to that, to your situation in relation, for instance, to potential changes to gatemoney and changes in your management arrangements?

Mr Josif —The changes to gate money would be profound. It would actually, as I saidearlier, crush the community. There would be no way that basic facilities could be providedthe way the funding mix is at the moment. At the moment well over a quarter of a milliondollars of gate money is actually spent on things like, as I said, housing repair andmaintenance—and, by the way people, pay rent and that goes into the general pool—and alsocultural maintenance activities. That is absolutely compensation money. Instead of having anatural environment where people can move very freely and live a more traditionally orientedlifestyle, if you will, now there are 350,000 tourists hopping around the rock and around thepark which somewhat restricts that. The compensatory nature of that money is actually beingspent to mitigate the impacts of that very tourism. It has been a tall order to say, ‘You haveto forfeit that money to provide essential services that government isn’t and, as well as that,maintain your culture with it under this added impact.’

What would need to be looked at is a mix whereby people are getting their entitlements,their justifiable entitlements now as Territory citizens without having to make any kind ofcompromise. But I think it goes back to the original discussion—what you raised before, too,Senator Allison: what could be done in this legislation to make good? I think that sort of knifein the back needs to be taken away. This bludgeon of forcing by legislation something tohappen, without any guarantees that it is going to have the result that everyone is talkingabout—as I said before—is a pig in a poke, a pie in the sky. No-one really knows what isgoing to eventuate if this legislation goes through. They have got it. They do not have to givea thing.



Mr Keyes—And the minister has told us he is not prepared to give any firm commitmentsabout what he might be able to produce were the Territory able to get on the board. But theanswer to your question, Senator, is that there is a direct parallel with the Optus and theVodafone case, and there is a direct contrast. The direct parallel is that someone had a dealwith the government and the question is whether the government is going to stick to it. Thecontrast is that Optus and Vodafone are large whitefella commercial corporations that areimportant interests to the government and they take that seriously. In the case of the Uluru-Kata Tjuta traditional owners it is exactly the same ethic that came through in the native titledebate. ‘These are just blackfellas; these are just historical, cultural curiosities and we canoverride their wishes and no-one is really going to care.’

Mr Tilmouth —The other point especially about essential services and housing repairs isthat a lot of these communities already have CDEP and when you are on CDEP you still get$7,500 a year as if you were on unemployment. The trouble is once you are CDEP you arenow employed, so social security walked out the door with $1,500 per person for rentalsubsidies. So the downturn in Mutitjulu and in communities with housing is because there hasbeen no individual support for rental subsidies. These are the arguments that force Aboriginalpeople to look elsewhere to supply and support the current housing stock. Whatever theNorthern Territory government puts on the table, it is really a, ‘Shall I starve today or starvetomorrow?’ type of question. That has been the argument all along. That is why the recordof service delivery and essential service provisions to Aboriginal communities has beenabsolutely abysmal. That is reflected also in health stats and a whole range of other things.

But when you get an added impost of a tourist facility or a tourist operation impacting onyour doorstep and then someone turns up and says, ‘Why don’t you use your gate money tosupport your essential service provision?’—not to mention women’s issues and a whole rangeof other things that went out the door first—this is when the anger starts to rise a bit.

Senator MARGETTS—I have many other questions but I know we have run out of time,so thank you for that. That was very helpful.

CHAIR —We have run out of time. We have actually gone quite a bit over time. Thank youvery much for appearing and we will make sure your comments will be borne in mind by thecommittee in drawing up its report. Thank you very much indeed for being here today.

Mr Josif —I would just like to say one thing for the record. From the Mutitjulu communitywe would like to thank the committee’s support for two people to be able to come down here.We really appreciate it and thank you for that.

CHAIR —Thank you. I adjourn the meeting and we will resume at 2.15 p.m.Proceedings suspended from 1.32 p.m. to 2.24 p.m.



WENSING, Mr Edward George, Acting Policy Manager, Environment and Planning,Australian Local Government Association

CHAIR —We will reopen this session and I welcome Mr Edward Wensing. The committeeprefers all evidence to be given in public but you may at any time request that your evidence,part of your evidence or answers to specific questions be given in private and the committeewill consider any such request. I point out, however, that evidence taken in camera maysubsequently be made public by order of the Senate. The committee has before it submissionNo. 607 dated 1 October 1998. Do you have any alterations or additions you would like tomake to your submission before you make an opening statement?

Mr Wensing—Not to the existing submission.

CHAIR —Would you like to make an opening statement?

Mr Wensing—Thank you, yes. I do have an additional submission.

CHAIR —I see. Would you like to distribute your additional submission?

Mr Wensing—Yes. Mr Chairman, can I register an apology on behalf of Councillor JohnCampbell. Apparently the government invited ALGA to attend a briefing on the tax changestoday in Canberra and Councillor Campbell decided that was slightly higher up in his orderof priorities than his appearance here today and he asked me to stand in in his place, soapologies from Councillor Campbell, Mr Chairman, and I apologise for any inconveniencefrom the late notification.

Just by way of a little bit of background, Mr Chairman, ALGA is a federation of state localgovernment associations—there is one in each state and territory—and thus represents the 700plus general-purpose councils in Australia. Again, by way of background, ALGA is a signatoryto the Intergovernmental Agreement on the Environment and was a full member of theIntergovernmental Committee on ESD until its abolition in early 1998. As a member ofICESD, ALGA played an active role in the 1995-96 review of the IGAE, which recommended,inter alia, that:ICESD examine and report on ways to ensure that the role played by Local Government in environmentalmanagement receives increased recognition and better implementation in terms of the Agreement and thatLocal Government’s role and involvement in processes to progress the objectives of the IGAE areclarified.

This recommendation was subsequently adopted by COAG.

ALGA has played an active role in the review of roles and responsibilities for theenvironment over recent years and the review was to result in amendments to the IGAE.However, amendments could not be agreed upon, which in turn led to the development of aheads of agreement which was to foreshadow amendments to the IGAE and forms the basisfor the bill which is the subject of this committee’s inquiry. The failings of the heads ofagreement, in our view, are also reflected in the bill.

Local government’s roles and responsibilities in environmental management have expandedconsiderably in recent years. This reflects the devolution of specific responsibilities by stateand territory governments, the imposition by states of new responsibilities—for example, stateof environment reporting, particularly in New South Wales—Commonwealth funding programsdirected in part at local government and demands made by local communities on their councilsfor a more concerted effort in relation to environmental matters. Despite this, there has reallyonly been limited involvement of local government in the implementation of the IGAE andthere appears to be a reluctance on the part of some states to embrace the concept of



partnership between all three spheres of government. This is evidenced notably by the refusalto admit local government on the ANZECC committee, which deals with substantial elementsof the IGAE implementation, and exclusion from the Natural Heritage Trust partnershipsagreements as well.

Administrative arrangements for environmental management have tended to develop ad hocand without a clear framework for the allocation of a coherent package of responsibilities forlocal government. The recommendations of the ICESD review in relation to the IGAE inrespect of local government were therefore quite unsurprising but nonetheless a welcomerecognition of local government’s role and contribution. Regrettably, the review of roles andresponsibilities has failed to grasp the opportunity to act on the ICESD recommendation andthe COAG decision. The desire of those involved to focus solely on Commonwealth and staterelations is understandable but ignores the existing provisions of the IGAE and the reality andcomplexity of environmental management issues and processes and the significant potentialfor independent action by local councils and for councils to add value to Commonwealth-staterelations and efforts in relation to the environment.

In relation to the heads of agreement, as governments seemed unable to agree on a set ofIGAE amendments, they formulated the heads of agreement which outlines desirableamendments to the IGAE which will be made sometime in the future. ALGA has in factnotified the federal government that it will not sign the heads of agreement because it doesnot adequately reflect local government’s role in the environment and hence many of theshortcomings of the heads of agreement are in fact reflected in the bill. The purpose of ouradditional submission is to draw your attention to particular clauses in the bill that we thinkcould be amended to more appropriately accommodate and reflect local government’s role inrelation to environmental management. The latter part of the submission actually provides alist of specific changes to the clauses in the bill that we would recommend.

The bill also relies fairly heavily on bilateral agreements between state and Commonwealthgovernments and the point we would like to make in our additional submission is that wewould like to see them be tripartite agreements at the very least between all three spheres ofgovernment, relying on a partnership approach to common objectives in relation to theenvironment. The final point I would make is that the fact that the Commonwealth regardsan area to be of national environmental significance does not in fact take away that these areasstill have significant value to the local community and hence there is still a need to involvethe local community in decision making processes that affect those sites.

For your information I have also attached to the additional submission a copy of our nationallocal government biodiversity strategy, which was endorsed unanimously by our nationalgeneral assembly in November in Canberra last year. I would like to leave it there, MrChairman.

CHAIR —Thank you very much. We will look at that with interest. I would like to ask youa couple of questions. You really have argued that the bill is based on a narrow Common-wealth-state relations view of environmental management and does ignore the role andimplications for local government and local communities. You have said the bill fails torecognise that many matters of national interest are addressed at the local level through theprovisions of state legislation and you have made a plea for tripartite rather than bilateralagreements. There are matters of national interest that are addressed at the local level throughthe provisions of existing state legislation but does the ALGA see it as appropriate for theCommonwealth to impose legislative controls over local government, given that localgovernment is a derivative of state governments? Legally, local governments are within the



provinces of the states. Do you feel it is appropriate for the federal government to be imposinglegislative controls over you?

Mr Wensing—I do not think it is a question of imposing legislative controls. It is more theother way: that we would expect the Commonwealth to adhere to the processes that any otherproponent has to follow at a local scale. Often the two processes are quite different. That is,the processes outlined in the Commonwealth bill have a number of time frames which are notconsistent with state legislation and therefore often bring it into conflict, or could potentiallybring it into conflict, in terms of meeting deadlines and so on. And local communities getfrustrated by the fact that often Commonwealth proposals can divert or avoid the normalrequirements for consultation and consideration at the local scale which enable the localcommunity to assess the local impacts of a national proposal and have a valid input to thedecision making process through the local scale environment and through the local decisionmaking approval process. It is more the other way, that there is an expectation by thecommunity that if other proponents are required to comply with state law and local governmentprocesses, we would expect the Commonwealth to respect those processes that are in place.

CHAIR —Isn’t that perhaps the answer, that respect for those local processes should berecognised, if necessary, in bilateral agreements? Otherwise they are not the concern of thefederal government in any way.

Mr Wensing—It is not that they are not the concern of the federal government. While localgovernment is a creation of the states, there is no harm in having tripartite agreements, in ourview, between all three spheres of government when it comes to environmental managementobjectives. As I said to you in my opening comments, not all responsibilities for localgovernment are in fact derived from state legislation. Some of them derive from Common-wealth legislation, some derive from the local community’s own objectives and hencecouncillors are held accountable to those.

CHAIR —What examples are there of local government factions derived from theCommonwealth?

Mr Wensing—Sorry?

CHAIR —What examples of Commonwealth legislation are there which give localgovernment power and authority?

Mr Wensing—The latest Telecommunications Act, for example, has a determinationattached to it which requires the carriers to conform to local planning approvals for theinstallation of certain facilities. There is other legislation, too. That is probably the most recentand most controversial one, but there is other Commonwealth legislation too which localcouncils must comply with. There are provisions in the native title act, for example, thatcouncils have to comply with in certain circumstances, which impose conditions and timeframes which they cannot escape.

Similarly, if I could just turn your question around the other way, there are expectations thatlocal communities have about the standards of development or long-term environmentalobjectives in relation to things like biodiversity and greenhouse and Local Agenda 21 whichthe local community would like to see its community achieve in the longer term. Anyonecontemplating development in that local area would be expected to try and conform orcontribute to those objectives and not necessarily detract from them. So in that case localcommunities often feel disempowered, if you like, by Commonwealth legislation where theprocesses that are normally adhered to at a local scale are ignored.



CHAIR —And you do not think the problems of local government in this respect can beaddressed by relevant regulations under state arrangements?

Mr Wensing—No, not always, because whilst the statutory processes are often determinedby state government, there are other procedures that the community may wish to embed inthose that cannot necessarily be reflected by way of a bilateral agreement between state andCommonwealth because each local community is unique.

Senator ALLISON—Mr Wensing, the submission we had previously suggests that thepresident of the ALGA has said that even though the ALGA endorsed the heads of agreementin COAG in principle, it is unlikely that the heads of agreement would be signed now thatthe ALGA has seen the bill itself. I wonder whether the suggestions that you make foramendments to the bill in the paper you have given us this afternoon would make a difference.In other words, if the minister accepts these amendments, would that overcome localgovernment’s difficulties entirely with what is in the bill?

Mr Wensing—Probably not entirely, Senator. I would have to look more closely to answerthat question. I would suspect it would overcome some of them but not all of them. Our viewon the heads of agreement was that there was insufficient recognition, even broadly, let alonestatutorily, that the broad range of functions that are performed by local councils in relationto environmental management is simply not adequately recognised. These changes would onlystart to address that process, and not entirely.

Senator ALLISON—Are you in a position to be able to talk in detail about the bilateralagreements and local government’s decision on those?

Mr Wensing—Not in detail, only to the extent that the comments we had received fromour state associations and a number of individual councils was that they felt excluded by theprovisions in the bill and hence would like to see at least the bill enable the inclusion of localgovernment in some bilateral agreements, if not all.

Senator ALLISON—A consistent theme of submitters is that the bilateral agreements willnot become public documents until after they are signed, and presumably unless we caninclude local government prior to the signing process, so this means local government too.Can you perhaps predict the problems associated with that ‘behind closed doors’ approach and,local government being closest to its community, how do you see the acceptance by ordinaryfolk of this kind of approach? How much harder does this make local government’s job inpersuading their communities to support biodiversity or whichever other environmentalinitiative they wish to run?

Mr Wensing—I suspect that any process of bilateral agreements between the Commonwealthand the state that would have a significant impact on local government’s roles and functionswould not be terribly welcome by local government universally. I suspect that many of ourcouncils would much prefer to see that as being an open process, particularly at the state levelwhere our state associations are much better informed about the breadth of responsibilities thatcouncils have in their respective states. I do not think a closed process would satisfy manyof our constituents. I think it would concern them greatly.

As I said in my opening comments, local councils often take issues beyond what they arerequired to by law. Others do not. So any process that states and Commonwealth agree towithout consultation with local government may be flawed in one of several ways. They mayin fact take cognisance of the statutory responsibilities imposed on councils but they mayimpede the councils that wish to take these issues even further or, alternatively, they mayimpose additional responsibilities on local government which local government cannot finance



from its existing revenue base. That is often the greatest concern for councils: we feel thatwhat states are doing sometimes by amending statutes and imposing new requirements, whetherit be in relation to threatened species or whether it be changes to approval processes to bringthem into a more streamlined environment like in Queensland, is imposing additionalresponsibilities and processes on local councils, but they do not address the question of howthey might be financed and how they need to be properly resourced. So there could be anumber of flaws in those kinds of bilateral agreements which may not pick up some of thoseissues at a local scale.

Senator ALLISON—I would expect local government to put the view that, in line withsubsidiary principles, decisions on environment issues should be taken at the local governmentlevel, but this bill seems to be about shifting responsibility not down to that level but to thestates, where it pretty well lies. Does the ALGA see a role for the federal government in termsof environment legislation? I just invite you to expand on what you think is that role froma local government perspective.

Mr Wensing—Well, the Commonwealth at a national and global scale enters into a numberof international treaties or agreements or signs a number of international conventions whichcommit this community as a nation to achieving a number of environmental objectives on theone hand. On the other hand the Commonwealth as a sphere can in fact legislate to do certainthings consistent with the powers under the constitution. In relation to the environment, it ischoosing in this particular course of action to combine a number of pieces of legislation andbring them together to hopefully better manage environmental management issues across theboard.

We would not see that the Commonwealth would want to do much else than that. It isalways a difficult issue to bring together an appropriate level of decision making in relationto developments that may cause significant environmental damage or, on the other hand, maybe quite rewarding to the community, like declaring an area to be part of the world heritagepark. Our view is that local communities know their local areas best and their views and theirknowledge of a situation should not be overlooked. Our feeling is that the current wordingin the bill does not even require the Commonwealth to notify local government about particularproposals and about environmental assessment processes that it may be required to engage in,and therefore some important sources of knowledge and expertise may in fact be missing fromthe decision making process.

Our view is, as we have stated in our submission, that the bill should be amended to requireat the very least notification of local government in a number of the processes that areembodied in the bill and, if there is scope for more than that, to actively involve localgovernment in the decision making process by allowing tripartite agreements rather thanbilateral agreements.

Senator ALLISON—One suggestion that has been made in a submission to us today wasthat rather than empowering or accrediting the states to conduct the assessment and theapproval process, perhaps the assessment might be done by a state government, but that theapproval for matters of national significance should rest with the Commonwealth under allcircumstances. What do you think about that proposal and is there an opportunity for bilateralagreements to be assessed by local governments under certain circumstances?

Mr Wensing—To answer your first question first about where the level of decision makingshould be made, I have a personal view on that and I have not asked my colleagues in thestate associations about that. My hunch would be that in most cases local communities do not



want to see decisions made away from their localities, so I suspect that in most cases ourcouncils’ response would be, ‘Look, you can make these decisions if you like,’ but at the endof the day they would certainly want to see that their concerns and their views on a proposalwere reasonably taken into account in the assessment process and in the decision makingprocess. Whether that be at the state level or at the national level, I do not know whether ourcouncils would have a particular view on that. Was the second part of your question aboutscrutiny of bilateral agreements or formulation of bilateral agreements? Can I just ask you torephrase the second part of your question?

Senator ALLISON—I cannot remember what my second question was either. Maybe wewill go on to something else and I will see if I remember.

Mr Wensing—I think you were asking whether they should be open to scrutiny by councils.Well, even at a state level, the number of councils and the range of responsibilities in eachstate are quite different. It certainly would be difficult for tripartite agreements but,nevertheless, I think as the situation in Tasmania has shown, if it comes to the Commonwealthdeclaring an area to be part of the world heritage park, that has significant ramifications forthe local community as well as the Commonwealth saying, ‘This is an area of nationalsignificance which we wish to preserve for future generations.’ Any agreement about themanagement of that park has to involve the local community and ultimately, in our systemof government, the local council best represents the local community and hence should be aparty to that agreement.

On other issues that may be of broader state concern, I would imagine that a tripartiteagreement would engage our state association in the relevant states, and a national agreementwould engage us, as we were signatories to the IGAE.

Senator ALLISON—Another issue which has come up which you may or may not haveconsidered as an organisation is that of standing, and there is certainly not open standingproposed in this bill. I wonder in fact whether local government would have standing underthe current arrangements. Have you had a chance to look at that?

Mr Wensing—No, I have not in detail, but I think, consistent with my earlier comments,if there is a major proposal and there is an assessment process under way, we would expectthat local government would have the opportunity to have standing just like any otherorganisation or individual.

Senator ALLISON—A number of groups have argued that there is no danger in movingtowards an open standing situation. In some states, such as New South Wales, this is the case,and it has not tied up development proposals in the courts, it has not spawned an enormousnumber of vexatious actions. Is that your experience too?

Mr Wensing—Well, my experience, and speaking here more as a professional than as anofficer of ALGA, is that the research that I have done in the past in relation to local approvalshas shown that the greatest delay in the system is the need for referral and concurrence to otheragencies. It is not the councils’ processes and neither is it the third parties that have been themajor delay to the proposals. It has usually been the applicant appealing a decision that hasbeen made at one level or another. So, no, I do not think that an open standing wouldnecessarily attract a lot of vexatious submissions or submissions from a local council.

Senator ALLISON—And, finally, a couple of matters of national significance which arespecifically excluded from this bill are greenhouse and forests. Does the ALGA have a viewas to whether or not they should be included in a piece of legislation of this moment?



Mr Wensing—I cannot comment on those two items in particular, but I did notice anotherone that was excluded was airports, I think, and some of our councils have commented to usthat they are very concerned about some of the exclusions in the bill.

CHAIR —Airports?Mr Wensing—I beg your pardon?CHAIR —Sorry. I did not follow the point about airports.Senator ALLISON—Excluded. The government has been excluded from state run forests.CHAIR —Senator Margetts.Senator MARGETTS—What is your understanding of the consequences if the ALGA does

not sign the heads of agreement? Will there be any consequences?Mr Wensing—Yes, there will be consequences. For a start, ALGA cannot bind its councils

because councils are not members of ALGA—that is our state associations—and because weare only an association, not a sovereign sphere of government, we cannot bind ourconstituencies. Bearing that in mind, it is more a symbolic thing. If ALGA does not sign theheads of agreement then there is an important sphere of government not a party to a majornational document about achieving particular ends, and I think that is a significant omissionthen from the mind-set of local communities in terms of decision making.

Senator MARGETTS—You mentioned that the ESD heads of agreement has beenabolished?

Mr Wensing—No, the Intergovernmental Committee on ESD was abolished in early 1998.Senator MARGETTS—Has that been replaced by anything similar?Mr Wensing—No.Senator MARGETTS—How does that affect local government?Mr Wensing—As you know, ALGA is a member of COAG, which means that our president

sits at the table with premiers and chief ministers and the Prime Minister when COAG meets.What we found with ICESD was that our CEO or other senior officers were able to engagein very fruitful discussions and information exchange in the ICESD forum. Since that stoppedmeeting, that level of exchange of information has just ceased to operate.

Senator MARGETTS—Is this because as a country we have reached such ecologicallysustainable standards that these kind of negotiations and discussions are no longer necessary?

Mr Wensing—I think you should ask that question of another sphere of government. I donot think we can answer that. I think we miss it as a forum for raising issues and for sharinginformation.

Senator MARGETTS—What sort of feedback are you getting from government authoritiesthroughout Australia about what they believe the leadership role of a Commonwealthgovernment should be in relation to environmental issues, especially environmental issues likegreenhouse or biodiversity?

Mr Wensing—As you can see from our national biological diversity statement, localgovernment is fairly strongly committed to achieving some of those broader objectives. Manyindividual councils are engaged in greenhouse processes and LA21 processes. Most recentnational surveys have shown that at least a third of councils are prepared to put their nameto actively being involved in promoting and implementing either greenhouse or LA21 typeobjectives. Our research has also shown that at least another third of councils, which would



be a total of two-thirds of councils across Australia, are actively engaged in activities thatwould achieve those objectives but do not necessarily identify them as being under an LA21or a greenhouse banner.

A lot of rural councils actually undertake some very good soil conservation and natureconservation measures because they just make good land management sense in their localareas. When agencies like CSIRO or a state government or other instrumentalities approachcouncils about remnant grasslands or about threatened species, the councils are only too willingto cooperate with other agencies to ensure that those unique features of our biodiversity arein fact protected for the longer term and for future generations, and they are quite ready toadapt their approval procedures for taking those issues into account.

A number of councils are also engaged in the Cities for Climate Change Protection programthat is being run through Environment Australia. So, yes, a lot of local councils are quitestrongly committed to achieving broader environmental objectives, and I guess they see theCommonwealth as being an important leader and an important resource provider. Oftencouncils are very strapped for resources; they are limited in the way they can raise finances.Their ability to participate in programs like the Natural Heritage Trust or the AustralianGreenhouse Program is often inhibited by the lack of some sort of partnership arrangementbetween spheres of government. Ultimately, as we said in our submission, we would preferto see these arrangements based on a sense of trust and partnership between spheres ofgovernment rather than on some kind of ad hoc arrangement and we saw mechanisms likeICESD and the heads of agreement as providing a firm basis for that partnership.

Senator MARGETTS—It has been put to us by the South Australian government that theydid not seem to think that there was a problem with the Commonwealth taking some sort ofaction on things like their international greenhouse commitments, but if they were to do sothey should not put the words ‘climate change’ or ‘greenhouse’ in that legislation or even inthose agreements. I wonder if you have any comment on that. When local government hasa particular application for development, if the major concern in the community is, apart fromanything else, the addition to the country’s greenhouse emissions, is there anything you canuse at the moment on that basis alone which actually enables council to mitigate thosecircumstances?

Mr Wensing—I do not have a comment on your first statement about whether greenhouseor biodiversity conservation should or should not be included, or greenhouse or LA21—

Senator MARGETTS—Would it be helpful for local government if there was somethingyou could point to?

Mr Wensing—Absolutely. In the supplementary submission I have just tabled with youtoday, if I could read a couple of sentences, we have said here:Most existing Commonwealth and state legislation sends no signals that biodiversity conservation, despiteuncertainty about the way it might be manifested in the future, is an issue that should influence decisionsbeing made now, particularly those affecting developments in areas already known to carry a highprobability of risk.

Thus, while legislation is not necessarily limiting responses. There is little in current legislation tostimulate a proactive response from Local Government.

As I said to you, about a third of our councils are actively engaged in LA or greenhouseinitiatives and about another third are actively carrying out those kinds of activities but do notnecessarily put them under that banner. What our research has shown is that manyenvironmental managers in offices in councils do not package it that way when it goes through



the political decision making machinery because they just simply know if they did it wouldnot get up. But if they package it in a broader land management sense there is no problem,there is usually no resistance. So sometimes it is helpful, sometimes it is not, if it is includedin legislation. I think in the main what we are suggesting here in our written submission isthat at the end of the day if you want a consolidated commitment to achieving those objectivesthere have to be a number of measures that require governments at all levels to adhere to those,or to achieve those objectives. That can best be done by legislation and by partnershiparrangements.

Senator MARGETTS—Do I understand correctly that part of the elders’ concern is thatyou are caught in a territory dispute between the federal and the state governments over landmanagement, or over environment, as to who has the—

Mr Wensing—Yes, I think that is a fair summation. We are a little disappointed that localgovernment’s role in environmental management is not adequately recognised by theCommonwealth in a number of documents—for example, the heads of agreement and in thisbill.

Senator MARGETTS—In the longer term where do you see the direction that this mighthave to go?

Mr Wensing—In the longer term we would hope that there is a change in attitude towardslocal government. Local governments are here to stay even though we may not be enshrinedin the constitution. Victoria went through the process of fairly significant and draconianreforms imposed upon local government. At the end of the day there might be fewer councilsbut there is no absence of local government in Victoria, as Lyn would know from herexperiences of watching that happen in Victoria. There is a process of reform going on inpractically every state. South Australia, for example, is currently debating a new localgovernment bill. All the local government acts in Australia have been reviewed quiteextensively and reformed quite extensively in the last five years. It is a given fact that localgovernment will continue to be responsible for environmental management at the local scale.I would hope in the longer term that is given some recognition by other spheres of governmentin whatever way they see fit.

Senator MARGETTS—Finally, if public confidence is damaged further as a result of thebilateral agreements and if people come out feeling wholly unsatisfied with the outcomes ofthe bilateral agreements, do you see this as increasing pressure for some major changes in thefuture?

Mr Wensing—I think it is fair to say a lot of our councils are very worried about theabsence of some leadership at the federal level, and about what local government’s role reallyought to be in a broader national context. We were involved in the formulation of the nationalgreenhouse strategy in the early stages, but in the final stages of the strategy local governmentfelt that it was not adequately consulted. The earlier drafts of the greenhouse strategy containeda number of initiatives which local governments simply could not have achieved withoutadditional resourcing from outside its own revenue base. In the end, after some considerablepressure by the LGA the requirements on local government were more adequately recognised.

Nevertheless local government is mentioned no fewer than 25 to 30 times in the currentnational greenhouse strategy. That imposes considerable expectations on local government.Some of those expectations can be achieved from within our existing resources but a numberof them would require additional resourcing from outside. There is just no way that localgovernment could be expected in the time frame within the national strategy to achieve those



objectives. Without a sound partnership arrangement with other spheres of government andother parties, including the local community, it is impossible to achieve. It is an enormousexpectation on local government.

Senator MARGETTS—Thank you very much.

CHAIR —Thank you very much, Mr Wensing. You have done a great job in representingthe LGA.

Senator ALLISON—Can I just ask one not quite related question. I notice in yoursubmission here there is a statement about environmental officers. I wonder if you have anyfigures on how many councils have environmental officers and how many of those have beenfunded by the federal government and which are state related. Is it possible to get those?

Mr Wensing—I do not have the research on hand, but I know for a fact that each of ourstate associations has an environment officer that is funded out of Commonwealth programmoney. They are a very important contact point and play a facilitating role betweenCommonwealth initiatives and local government’s participation in those initiatives. We arevery grateful for that assistance because without that assistance there would not be that conduitbetween local government and the Commonwealth. But at the local council scale every councilhas a land management responsibility and hence they do employ environmental health andsafety officers. Many of those are engaged in activities that could be measured or sensed tobe achieving environmental objectives.

Of course, the larger the council and the larger the geographic area they have, the moreresources they have for engaging specialist environmental officers, and certainly many of ourprovincial councils and urban councils employ environmental officers whose role it is tooversight or engage in activities which achieve particular environmental objectives andparticipate in whatever programs are around. I might add, too, that councils are requiredstatutorily under local government acts and a host of other state legislation to carry outactivities in a way that respects the environment, for example, the threatened species act inNew South Wales, or many other pieces of state legislation. So as a matter of course councilsat a fairly senior level, at management level and decision making level, are often engaged inthese processes. That is all funded out of their own resources.

Senator ALLISON—Have you had any advice as to the constitutionality of the amendmentsthat you suggest?

Mr Wensing—No, not particularly.

Senator ALLISON—Would you expect to need advice or are you confident that—

Mr Wensing—What is the point of your question, Senator? I do not quite understand it.

Senator ALLISON—The committee has been told often enough already that for bilateralagreements to be signed with councils might offend against the constitution and is certainlya problem in terms of local government being a creature of the states.

Mr Wensing—But the Commonwealth handles agreements with all sorts of parties on otherthings so I do not quite understand why it would be difficult to have an agreement with localgovernment.

Senator ALLISON—Thank you.

CHAIR —Thank you, Mr Wensing.

Mr Wensing—A pleasure.



CHAIR —And your views will be taken into account by the committee when drawing upits report.

Proceedings suspended from 3.03 p.m. to 3.18 p.m.



JEFFRIESS, Mr Brian Charles, President, Tuna Boat Owners Association of AustraliaCHAIR —I welcome you here to this hearing. The committee prefers all evidence to be

given in public but you may at any time request that your evidence, part of your evidence oranswers to specific questions be given in private and the committee will consider any suchrequest. I point out, however, that evidence taken in camera may subsequently be made publicby order of the Senate. The committee has before it submission Nos 154 dated 21 August 1998and 622, which I believe you have just delivered, dated 11 March 1999. Do you have anyalterations or additions you would like to make to your submissions before you make anopening statement?

Mr Jeffriess—No, I do not, thank you.CHAIR —Thank you very much. Would you like to make an opening statement?Mr Jeffriess—Thank you. I represent the Australian Tuna Boat Owners Association which

are all catchers of southern bluefin tuna.CHAIR —Mr Jeffriess, before you go on, the ABC is here and would like to film. Are you

happy with that?Mr Jeffriess—Yes, that is fine.CHAIR —Okay, thank you.Mr Jeffriess—All members, all quota holders of the Tuna Boat Owners Association of

Australia belong voluntarily. Over 85 per cent of the Australian southern bluefin tuna catchquota is owned in South Australia and the balance in Queensland, New South Wales, Tasmaniaand Western Australia. We have a particular interest in this bill. Southern bluefin tuna willbecome in 1999 the largest Commonwealth managed fishery. It generates over 2,000 jobs onEyre Peninsula alone and $150 million of exports.

SBT of course is an international and controversial fishery with strong healthy debate aboutthe sustainability of the current SBT catch by what we call the regulated countries—Australia,Japan and New Zealand—and the numerous unregulated catchers—largely Taiwan, Korea andIndonesia. Because of this there have been constant attempts to list SBT under the EndangeredSpecies Protection Act, which has been incorporated in this bill, under CITES and IUCN. Alot of the criteria used for particular categorisations in this bill are the IUCN criteria.

The other strong interest we have is we believe that the best way to manage fisheriessustainably is through an independent authority with strong ESD statutory requirements andthe Australian Fisheries Management Authority fits that bill. I think one of the intendedconsequences of this bill as it is currently drafted is to effectively make Environment Australiaand its minister a de facto fisheries manager, necessarily unable to avoid the political influencewhich has bedevilled Australian fisheries management and throughout the world as well inthe past.

The third point is there are other parts of the bill which could be improved to make theadministration more effective. For example, the bill obviously impinges heavily on the rightsof the states to manage their own fisheries. This appears contrary to both the consultation paperand the IGAE itself. These concerns aside, and we go into some detail of those in the paper,we do applaud the intentions of the bill; that is to rationalise the diverse legislation whichcurrently exists and at least it makes some attempt to demarcate between the powers ofCommonwealth and state governments. Secondly, we applaud the attempt in this bill tointroduce the ESD principles to other industries which already underpin fisheries managementin Australia through the current other legislation.



We and the Australian Seafood Industry Council, of which we are a strong, committedmember, do not see any point in criticising these bills in general so what we tried to do inthis submission, as ASIC has done in theirs, is to actually indicate various specific areas ofthe legislation or the bill which we feel could be improved. The two main issues that we focuson here are, first of all, the clauses which trigger Commonwealth intervention. Currently wehave as a Commonwealth fisheries manager the Australian Fisheries Management Authority.That body, in our view—and history speaks for itself—has taken the hard decisions since itwas set up in 1990 that the heavily politicised Commonwealth fisheries management systemthrough the department and through the ministers of those times used to be necessarilyinfluenced by. There are many decisions in the eighties and the seventies in Australian fisheriesmanagement which were clearly politically driven decisions. The whole aim of the creationof AFMA was to try and depoliticise the system and therefore produce a much better resourcemanagement outcome.

Some examples we give of clearly where AFMA has met the nerve test, as we call it, areclosing the gemfish fishery, continuing to cut orange roughy quota, introducing quotas at alower level in the southern shark fishery, forcing a stop to the expansion of the east coast tunafishery, and cutting effort in the Northern Prawn Fishery. All of those have been major stepsforward in global fisheries management, not just Australian fisheries management, and I doubtwhether they would have been taken under a structure where you had any minister in anydepartment necessarily subject to political influence making those decisions. That is not to saythat everyone is satisfied by AFMA. Many stakeholders who I represent claim that AFMAis far too green, so to speak, or in the pockets of the conservation groups. Others say it is tooinfluenced by scientists in the industry. On balance, when you hear all these criticisms, it isprobably a net compliment to AFMA.

The argument mainly made against the current structure is that no single authority likeAFMA has a mandate for the ecosystem management in total rather than a specific part ofit, in this case fisheries. To some extent there is some merit in that argument but in the mainAFMA, for example, have a clear mandate to address the issues of bycatch. In the trawlfishery, for example, again AFMA have met the nerve test. They have introduced bycatchreduction devices, including turtle exclusion devices, and made them compulsory in theNorthern Prawn Fishery and all other prawn fisheries in Australia of which they have control.AFMA have always supported the seabird bycatch threat abatement plan, which has beenintroduced under the Endangered Species Protection Act. There is a whole range of otherbycatch issues which have been addressed by AFMA.

The current package of legislation as it stands has proven very effective in addressing theseecosystem challenges, not just those specific issues, and we feel that the current packageincorporated in the new bill could more than satisfy or best satisfy the challenges ahead. Itis not to say that some of the challenges have not been met too slowly by the industry despitethe prodding by AFMA and others but hopefully that is currently being addressed.

On the actual implications for the states, it is quite clear from the ASIC submission thatsection 25 of the bill does give the Commonwealth minister for the environment clearly thepower to intervene in state fisheries and other marine decision making. To us that is entirelyinappropriate, not that many of us are state writers at all; it is simply that we do not believethat any Commonwealth department or state has the expertise that resides in the states toproperly make marine decisions.

On the question of paragraphs 11 to 13 on unintended consequences, when you look at thebill it appears to have been so hastily drafted that it really is to some extent a mishmash of



contradictions and clearly needs to be cleared up. There are areas which appear to limit thepower of the Commonwealth minister and department to intervene in both Commonwealthand state issues. There are other areas which clearly give the minister that right and theyappear very contradictory within the same bill. I think a lot of those are probably unintendedconsequences.

The other major section I want to address, Chairman, is the Endangered Species ProtectionAct. Southern bluefin tuna has been subject to two endangered species applications in the lastfive years, both from the same source. Both have been rejected after a long, arduous process.The current process in the endangered species act has some problems, in our view. There isa total lack of transparency in the actual process itself which we object to but that is a smallproblem that needs to be fixed, compared with the benefits of the current bill. The coreproblem is that the wording in the new bill on what is endangered, what is vulnerable, etcetera, really is a mishmash taken from new criteria from the IUCN, CITES and other criteria.There is a total lack of detail in the bill as to exactly what the implications for the minister’sactions are if a species or process is declared endangering or endangered or vulnerable. Forsome reason that has not been completed and again attests to the haste with which the bill hasbeen drafted.

More important than that, the criteria that are used in the bill to replace the old satisfactorycriteria, that is the new IUCN and CITES criteria, are being reviewed currently by the IUCNand CITES themselves and I give the actual facts of that situation there, that an IUCNcommittee is currently reviewing whether the terrestrial based criteria which are currently inthe IUCN criteria are suitable at all for marine harvested species. That review, which consistsalso of an Australian scientific expert, will go right throughout the year 2000. It was decidedthe CITES criteria themselves would be reviewed by an FAO committee of fisheries inFebruary 1999 and that review I understand will begin by the CITES itself and by the FAOseparately in June 1999. Not just that, Mr Chairman, but the current criteria have provedsatisfactory. Even when you subject them to attack all the time, they have proved satisfactory.

On the principles of ESD we congratulate the drafters of the bill. Finally, someone in someCommonwealth legislation has included the full ESD principles decided in the IGAE. Thatis a major step forward. The last issue we want to address is the injunction powers in the bill.One only has to be acquainted with United States fisheries management to see how it is fallinginto chaos. Decisions are just not being made simply because any individual can injunct againstany kind of legislation. The marine environment is the loser from that process, as anyone whoknows about United States performance on marine environment issues can understand. Thatis largely a result of the legal morass which has grown up because of low cost and low risklegal campaigns being waged both by fishermen—and I emphasise by fishermen—and othergroups in the community. It has brought the whole decision-making process to a stop, and theassets of the marine environment are the losers.

Lastly, on bioregional plans, section 176 for example just seems to have suddenly appearedin the bill without any rationale. It has obviously been put in there as a result of being raisedin the oceans policy and properly so. The concept is a good one but in the bill itself there isno explanation of any link between the plans themselves and any actions by the minister underthose plans or whatever it may be. Again it is simply an afterthought and the bill really needsto be tightened up. Overall we see real benefits in rationalising the current legislation butbasically the whole bill needs considerable conceptual and word tightening in limited areasand then I think it would meet truly the ESD principles which it seeks to meet and would gainmuch wider support than it has now. Thank you.



CHAIR —Thank you, Mr Jeffriess.Senator ALLISON—Mr Jeffriess, can I ask you, first of all, about consultation over the

bill. You saw the discussion paper presumably. Did you make any representation to thegovernment on the discussion paper?

Mr Jeffriess—Through the Australian Seafood Industry Council. That is our normalprocedure. It is simply because the committee has decided to meet in Adelaide that we havemade this submission as well. Yes, we made considerable submissions. We met the ministerfor a number of discussions on the issue, including these core issues.

Senator ALLISON—So you put these issues to the minister. What was the response?Mr Jeffriess—The response on why marine issues were to some extent being singled out

in the bill was no response, in a sense. The response on what we regard as the core issue inthis bill is the failure to accredit a statutory authority like AFMA, to accredit the process whichit follows and the minister insisting on accrediting every plan and virtually every action ofa plan. The general view in Canberra, including that of the minister, was that that wassomething which was agreed to by DPIE and the previous minister for resources. We do notknow how that happened. We have asked people on that issue. They have said that DPIEsought to accredit all processes covered by all parts of that portfolio. Somehow marine issuesgot into that morass and someone drafting the bill has to some extent independently sifted offmarine issues to the side. It is just a confused answer.

Senator ALLISON—Have you had any subsequent undertaking by the minister that yourconcerns will be taken on board or not?

Mr Jeffriess—Looked at rather than taken on board. Those discussions were as recent aslast week.

Senator ALLISON—When do you expect to hear back from the minister aboutmodifications he might consider?

Mr Jeffriess—I think he is waiting for the Senate committee to report.Senator ALLISON—Is he?Mr Jeffriess—I think, to be fair to this minister, that he has a deep and abiding love for

the Senate and for once a parliamentary committee might be listened to. We think that is theproper process as well. We do not seek to undermine the process at all.

Senator ALLISON—I am sure the minister would be amused to compare your commentsabout AFMA being criticised by all groups and, therefore, you have got to have somethingright because this bill certainly has been criticised by all groups—by industry, by conservationgroups, local government and state governments alike. I hope you are not suggesting that isalways an endorsement of the right way forward under all circumstances.

Mr Jeffriess—Far from it, but I have listened to so many people over a long time criticisethe need for more attention to the marine environment and if you talk to them five years laterthey deny they have said it. The marine environment requires more attention and certainlyrequires more attention than has been put into the drafting of this bill.

Senator ALLISON—You say that organisations like AFMA ought to be accredited. Doesthis apply across the board? Would you say that other bodies of that sort ought to have thatcapacity as well?

Mr Jeffriess—The government is the source of the legislation for AFMA. The Democratsthemselves made the worthwhile change the last time amendments were made to the Fisheries



Management Act. They inserted a precautionary principle as part of the two objectives ofAFMA. I doubt whether there is any other statutory authority, including GBRMPA, which hassuch clear ESD driven objectives.

Senator ALLISON—No. I am asking you really whether other organisations would fit thatbill as well.

Mr Jeffriess—I doubt it. That would be a matter of individual scrutiny, I guess, but at worstthe AFMA processes should be accredited by the minister.

Senator ALLISON—That is an interesting question because we had a submission thismorning that suggested it would be far better for the states and, presumably, other groups—isthat what you are suggesting?—to do the assessment process, but the approvals for nationallysignificant issues should be ticked off, as it were, by the minister so that you split up theprocess of assessment. Does that have any appeal to your organisation?

Mr Jeffriess—No, not at all, simply because all that can lead to, as history has proved, isa politically driven decision. Statutory authorities should have full parliamentary scrutiny, weaccept that as a proper process, but each individual decision it makes under its own statutebecomes a decision and a de facto fisheries management decision, in our case, of the minister.Then he cannot be but subject to political influence. There is a very live issue in fisheriesmanagement at the moment where the Minister for Primary Industries and Energy has soughtto bring to bear that final level of decision making.

Senator ALLISON—But what if bilateral agreements were required to be passed by theparliament in some way? You are saying it is a political process and so simply leaving thedecision with the minister leaves him open to political influence. What if it was a matter forthe whole parliament?

Mr Jeffriess—I would have a fear that that would be subject to the same political influence.I think a parliament’s role, as with any body like that, is to accredit the processes and thelegislation rather than each individual decision, because I think one has got to be aware of—say in fisheries alone, aside from other marine issues—the extent of individual issues that arise.Currently they come under parliamentary scrutiny anyway because any change in regulationshas to sit with the parliament for a length of time and they are often amended, as the previousamendments to the fisheries management bill were amended. So parliament already hassubstantial scrutiny, but I think for them to have scrutiny over each individual action undera management plan would again subject them to political influence—including our own.

Senator ALLISON—Can I ask you about how AFMA works. Is there a public processbefore it determines any of those examples you have given us?

Mr Jeffriess—Yes, there is.

Senator ALLISON—Can you describe that public process?

Mr Jeffriess—In the case of, for example the cut in the gemfish quota to zero, which hasa major impact on a range of small fishing towns on the east coast, there is a scientific processwhich advises them—what is called a management advisory committee, which consists of arange of stakeholders, including environmental groups and scientists and government—

Senator ALLISON—So an ordinary member of the public as well as a conservation groupcan take part in that process?

Mr Jeffriess—Yes, they can. They are not as much heard, I might say, as stakeholdersthemselves, although the community is seen as a stakeholder—



Senator ALLISON—But they can be heard; they can see the document before it is agreed,presumably?

Mr Jeffriess—Yes, and in the case of a management plan it is an even more publiclyscrutinised process, where there are statutory requirements for advertising and statutoryrequirements to take into account all public consultation, all public submissions.

Senator ALLISON—A number of people coming to the committee are concerned that thebilateral process has no public involvement, that it is agreed and stitched up before there isany need to release details of it to anyone. Would you share that concern?

Mr Jeffriess—I think there is always some risk that that is done as a bureaucratic processrather than even a ministerial process. The other fear I have of some of the bilateral agreementsis reflected in the regional forestry agreements, where some of those are bilateral agreementswhich have been misunderstood or misinterpreted. But, all that being said, that is still asuperior process to every action under these plans being scrutinised by some minister, nomatter what minister, subject to political influence, including our own, I might say.

Senator ALLISON—Under ‘Endangered species’, that section on page 5, you say:What the bill does is allow the minister to reject vexatious applications, which is a current problem.

I think you referred to two applications on endangered species listings which were rejected.Are they the two vexatious applications that you are referring to?

Mr Jeffriess—No, I would not have regarded those as vexatious at all. They did havesubstance, both applications. They were rejected for good reason, but the issue there was thatthe actual requirement to substantiate your case in the case of even the current legislation isnot there. In other words, you as a member of the public can put in a three-page applicationwhich has the consequence of stopping the catching of that species in Australia altogether.The minister has no discretion within either stopping catching altogether or rejecting theapplication.

Senator ALLISON—If three pages is not sufficient, what sorts of hoops do you have tojump through?

Mr Jeffriess—We would have thought that it is not up to what is called the ESSS in thiscase, the scientific committee, to develop the case for the applicant. It is really up to theapplicant to develop the case. One might say that that puts at a disadvantage someone in offthe street who either does not have the access to those documents or whatever it may be, butif we do not have some kind of hurdle where people actually have to do the research toactually make a valid application, then I think they—and many fishermen now, for example—are going to be making what I would regard as totally vexatious applications under that actsimply because of a payback.

Senator ALLISON—Fishermen will do it?

Mr Jeffriess—Yes, simply because—‘Let’s list wombats, let’s list other ridiculous things’—

Senator ALLISON—You mean fishermen will do it not in relation to marine issues but—

Mr Jeffriess—No; simply because they regard many of the actual applications which arebeing lodged now as vexatious, but in the case of the southern bluefin tuna both of them werenot vexatious, in our view, but our problem with those was simply that the process is nottransparent enough, firstly. Secondly, and more importantly, there is not enough substantiationrequired in the application for it to pass the first hurdle.



Senator ALLISON—A number of people have come to the committee and said that theyfelt that there should be open standing rather than the limited standing there is in the bill atpresent, and it is said that the reason for that is to stop vexatious actions being taken, but thecommittee really has had very little evidence to show that that has happened. In New SouthWales, where there is open standing, it has not happened. What is the situation in SouthAustralia.

Mr Jeffriess—Where there is open—Senator ALLISON—Open standing, so any party can take action. I guess this is related

to what you are saying about injunctions.Mr Jeffriess—Our problem is not even so much what happens in Australia as potentially

what may happen, for example, under this bill if the injunction powers are broadened to thatextent. I will send to the committee tomorrow a whole range of weekly reports from the UnitedStates which just show marine management is coming to a total standstill simply because ofconstant injunctions by either fishermen or others, other stakeholders, and the real danger infisheries—fisheries I can speak for—management in Australia is of decisions constantly beingdelayed as they were in the eighties and seventies, rather than effective action being taken,even when you do not like the action.

Senator ALLISON—Sorry, I do not quite understand what is different about this bill fromthe current situation in terms of injunctions.

Mr Jeffriess—Currently, as we have always understood it, only the director or whoever itmay be can seek injunctions against other parties.

Senator ALLISON—And the bill allows for the minister—Mr Jeffriess—Virtually anybody, with what we call low risk, low cost implications.Senator ALLISON—It is not something any of our witnesses have discussed so far.Mr Jeffriess—It was raised in the ASIC submission in some substance. I would nominate

that on the widest marine management front as the biggest danger in this bill, frankly, asidefrom the issues specific to our own industry.

CHAIR —Mr Jeffriess, I would like to ask you some questions about the power of theenvironment minister. You have made comment about it in terms of the fisheries managementplan. I would like to really spell it out for the record. Why do you feel that the environmentminister should not be responsible and accountable for matters of national environmentalsignificance that impact on Commonwealth waters, keeping in mind that he or she mustconsider social and economic as well as environmental matters when making approvaldecisions? In your submission you do argue that the bill allows for too much power to beinvested in the environment minister, which will result in decision-making powers overfisheries management matters to shift away from the minister for resources and energy, statefisheries ministers and state and Commonwealth fisheries management agencies.

You have already referred to that in what you have said. A number of submitters in fact haveraised concerns about the unilateral powers of the environment minister as provided under thisproposed legislation. Would you like to provide us with a fairly full comment on that.

Mr Jeffriess—Yes. Could I just emphasise, first of all, we regard any minister having thiskind of unilateral power as a problem. In the case of any minister for the environment or anyofficials of Environment Australia, they do not even profess to have fisheries managementskills to make the judgment on a fisheries specific issue, yet this is the power the bill givesthem. When we consult the minister on this issue, his response is that he does not seek in any



way to become a de facto fisheries manager, but that is in fact what power the bill gives him,whether it be the minister for the environment or any other portfolio.

The second and most important thing about that, and why we object to it, aside from thelack of expertise, is simply that they are prone to strong political influence, including our own,and history has proved again and again and again that when that situation applies in anycountry, and Australia, the decisions are either not taken or compromised, or weak decisionsare taken. That is why we have given the examples that since AFMA has been introduced,warts and all, it has made the hard decisions. We have our own problems with the currentminister for the environment but we do not shy away from them. Some of them are of ourown making, but our concern is more a conceptual, in-principle one that no such power overthe marine environment should be put in the hands of any single minister unless they haveat their disposal the strongest skills to do so, and those just do not exist in either EnvironmentAustralia or any other department outside the Australian Fisheries Management Authority.

The same applies in the state cases. Australian Fisheries Management, whatever its faults,is recognised internationally as superior virtually to any other except New Zealand and maybeIceland. It has not achieved that reputation by default. It has achieved it largely because it hasat least in the last decade been seen to be a reasonably rational, independent decision-makingprocess. Our problem is not with the current minister or any part of the political process. Itis rather the fact that to get the best marine management you have to have an independentprocess and that does not exist in this bill.

CHAIR —Thank you.

Senator MARGETTS—Mr Jeffriess, what is your definition of a weak decision?

Mr Jeffriess—For example, in 1986 the government of that day refused to introduce aminimum size for southern bluefin tuna caught in any state. In that year in Western Australiathe Australian industry caught over one million southern bluefin tuna under five kilos, I thinkit was. The reason that the minister at that time—whom we had a high regard for—refusedto introduce some kind of regulation to cut the slaughter was that the Albany tuna cannerywould have gone out of business without that catch. In my own industry that is the bestexample I have seen of it. In South East Fishery, which is the most high profile one inCanberra, the failure to proceed earlier with the orange roughy quota cuts was a good example,simply taken on the basis of the Tasmania influence within the Senate. That is the reality ofthe way fisheries management had traditionally worked here and overseas. AFMA, warts andall, as I say, has been a success in at least surviving in many cases what we call the nerve test.

Senator MARGETTS—That is an example where there would be an overall benefit forthe federal government to take a strong stand. You classed that as an unnecessary impingementon the rights of states to manage their fisheries. You are involved with tuna fisheries. Howfar does a tuna travel during its lifetime?

Mr Jeffriess—All tuna fisheries in Australia are managed by the Commonwealth simplybecause they are actually migratory fish which cross borders—international borders as wellas state borders. The southern bluefin tuna migrates from South Africa to New Zealand. Thatis its normal migratory pattern.

Senator MARGETTS—How does that make sense then, about the rights of states to managetheir fisheries? Tuna obviously do not recognise state borders.

Mr Jeffriess—No, our concern in this case is just with the general performance of fisheriesmanagement, not just a tuna related issue.



Senator MARGETTS—I was just giving you one very relevant example. Can we talk aboutstate fisheries in those terms if, say, pelagic fish may travel over very large distances and maynot be owned by a state?

Mr Jeffriess—Most species in Australia are resident species to a particular state. Forexample, some 80 per cent of the gross value of production of Australian fisheries are managedby states simply because they are resident in that state.

Senator MARGETTS—You speak highly of the current system. I understand the currentsystem is largely based on the single species management, is it not?

Mr Jeffriess—With the objectives of the act the common thread, yes.Senator MARGETTS—Isn’t that a problem if the activities of one fishery impinge on other

fisheries, either commercial or perhaps other species which are not considered to have acommercial value?

Mr Jeffriess—Under the offshore constitutional settlement those things are largelyresolvable. In the question of bycatch—which is the single worst performance of the Australianfishing industry in my view—the AFMA legislation now, since the precautionary principlewas introduced into the objective, is much clearer and gives specific attention to unrelatedspecies and bycatch species. I certainly am personally embarrassed about the performance onseabirds, but that has now been fixed, because of the AFMA legislation, in our view. If theAFMA legislation had not been there to force that issue by statute, I do not believe that thatissue would be properly addressed today.

Senator MARGETTS—Is that albatross and so on?Mr Jeffriess—Yes, and other seabirds as well, not just albatross.Senator MARGETTS—In the late 1990s there are some significant factors globally and

nationally that are different from when fishing management legislation was set up, are therenot?

Mr Jeffriess—Yes.Senator MARGETTS—In your understanding of fisheries in Australia what is the impact

of such things as southern oscillations, the changes that are occurring in relation to warm seacurrents and the impact that is having or is likely to have on the future of fisheries inAustralia?

Mr Jeffriess—That evolution is too slow to worry too many people, but it worries me. TheCSIRO, of course, are doing some work on that.

Senator MARGETTS—So you really see it as a slow evolution?Mr Jeffriess—I see it as a slow evolution. For example if you look at the migrating path

of southern bluefin tuna, which do need a specific water temperature—that is their preferredhabitat, you might say—that habitat has gradually no doubt moved south. You can see it overa long period.

Senator MARGETTS—Perhaps I am thinking from a seabirder’s point of view, but reportsthat I am getting are that in recent years there are entire seasons where food fish are notrunning. The squid will not run or the seabirds simply do not breed because already thecurrents are not enabling the juvenile fish to survive in certain species. Are you getting thosekinds of messages within your industry?

Mr Jeffriess—Not any more than we did 30 or 40 years ago. I think one has to separateseasonal changes, which have always been there, of particular species with a displacement



effect on other species, inshore particularly—squid is a good example of that—from longer-term structural changes. That is one of the problems with Australian marine management.There is too much emphasis on short-term issues with people forgetting that the cycle—

Senator MARGETTS—Are we talking about short-term issues, though? Let us talk abouttuna. You are interested in tuna. How long does it take for a tuna to mature to full size?

Mr Jeffriess—Yellowfin two years, bluefin eight or nine years.Senator MARGETTS—Let us just say this year certain feed stock for certain other fish

are not running. You might not know what those major implications are for several years downthe track. Is that right?

Mr Jeffriess—You do, simply because the only reason the tuna come—in our case—to theGreat Australian Bight is the feed fish are there and the tuna are there every year.

Senator MARGETTS—So your tuna are okay at the moment.Mr Jeffriess—I believe so, yes. There is a healthy debate going on now, but there is no

feed fish problem at the moment.Senator MARGETTS—For tuna?Mr Jeffriess—That is right. I believe if you harvest too many pilchards then there will be

a feed stock problem.Senator MARGETTS—Sorry, if we?Mr Jeffriess—If we harvest too many pilchards.Senator MARGETTS—If we harvest too many pilchards or perhaps if we kill too many

pilchards that might be a problem, too.Mr Jeffriess—Yes, that is true. Except that it is a very robust stock, I might say, but that

is no reason to kill pilchards.Senator MARGETTS—No. What I was getting at is that it is considered by a large number

of scientists to be some major climatic issues which are associated with the marineenvironment. I believe some of those are extraordinary climatic patterns that affected yourindustry in recent years.

Mr Jeffriess—Only to the extent that we think they are seasonal changes. For example, thisyear there was the best southern bluefin tuna in our memory in the Great Australian Bight.Many people jump in the air and say the stock has recovered. Our view is more that it wasan unusually early warm summer and therefore the fish came earlier and people get the wrongimpression.

Senator MARGETTS—So you have had an unusual, early warm summer.Mr Jeffriess—That is right.Senator MARGETTS—And a few years ago you had very damaging weather patterns to

your industry, did you?Mr Jeffriess—No, not that I am aware of, not in southern bluefin tuna. Again, the tuna are

very robust fish. Remember it has very few predators in the sea. It can change its bodytemperature very quickly. It is not like a lot of inshore species.

Senator MARGETTS—Given the precautionary principle which I assume the fishingindustry accepts as well, would it not be provident for the fishing industry to work with theCommonwealth or to accept new structures of management under the Commonwealth to beable to work in with potential or predicted major changes in the future—say with global



climate change, El Nino, La Nina, damaging weather patterns, unseasonal patterns and so on?Would it not be best to at least work towards the new scenarios that we are seeing?

Mr Jeffriess—We do accept those because the foremost scientific authority, the CSIRO,has a combined fisheries and oceanography division. Many of us have served on the fisheriesadvisory committee, many of us are on national primary industry research committees. Weare exposed to that kind of knowledge all the time. Structures are not the answer. Changesin structure are not the answer to that problem. Better information flow is the answer to thatproblem.

Senator MARGETTS—Some would say, though—and one example I can think of is SharkBay—that the current system of single species management might mean that you might takea decision which may or may not impact on the commercial fish but may impact on say, acoral community, which may not get caught up in current fishing management legislation.

Mr Jeffriess—In terms of that type of issue, in terms of structures we are not rejecting thebioregional concept.

Senator MARGETTS—You are not?

Mr Jeffriess—No. Our concern, I might say, about the bioregional concept is that it willbe such a consensus driven structure that nothing will happen. It will just be the lowestcommon denominator decision making. But we are not going to prejudge that structure at all,and we accept that taking the whole ecosystem into account is really the better way to managethe marine environment. It is what structure can best serve that. History has shown, and youonly have to look at the situation in France with their ecosystem driven research structure andthe United States with their ecosystem research structure, that they have the worst fisheriesmanagement in the world. I am not saying the two things are totally dependent or linked toone another, but they are heavily linked. In France and the United States no-one makes thedecision. That is the problem. We might have the best information flow but, because thestructure is so haphazard and consensus driven, no-one makes a decision and the marineenvironment is the loser.

Senator MARGETTS—Some people would call flexible what you say is haphazard. Forinstance, if there was a specific action required by the minister under a specific circumstance,and if your association did not like that you might be coming to us as the same committeeand saying, ‘This legislation was too inflexible.’ Would that not be a fair comment? I thinkyou basically said you wanted to know the outcomes if there was an endangerment, orendangered community. You want to know what ‘the action’ would be. Would that not be aproblem? Should there not be that flexibility for people to be able to judge whether it is amajor impact, a small impact or what the appropriate action should be?

Mr Jeffriess—I think the facility should always be there, but remember that under thecurrent legislation it is there. If there is a threatening process, for example, that is currentlyhandled within the ESP Act itself. The structures are already there and can be properlytransferred to this particular bill, but when they have been transferred they have been changed.

Senator MARGETTS—So what is the current action that takes place for a threateningprocess?

Mr Jeffriess—Someone lodges a complaint, as anyone can do, and that is considered byESSS—the endangered species scientific subcommittee—and they take action, as has happenedproperly on seabirds and as has properly happened on turtles and a whole range of other areas.



The current structure, which is not necessarily consensus driven, has proved the best structurein our view for the marine environment.

Senator MARGETTS—Finally, you said, ‘many stakeholders say AFMA is far too green’.Do you know what it is like in the pockets of greens, most greens?

Mr Jeffriess—Do I know what, sorry?Senator MARGETTS—You said, ‘many stakeholders say AFMA is far too green’. Do you

know what it is like in the pockets of most greens?Mr Jeffriess—I am a greenie myself. It is a criticism made of every statutory authority. The

GBRMPA cops the same from us and from everyone else. I think that is part of the mandate.Senator MARGETTS—Yes—‘in the pockets of’ generally means that somebody is paying

them off.Mr Jeffriess—I thought before I wrote that. In our common parlance these days it does not

mean that, but that is one—perhaps I should stop there.Senator MARGETTS—Thank you.CHAIR —Thank you very much, Mr Jeffriess.Mr Jeffriess—Thank you, Chair.CHAIR —It has been an interesting submission.



[4.03 p.m.]

MATTINGLEY, Dr Christobel Rosemary (Private capacity)

NEWLAND, Mr Nicholas Paul, Chairman, Foundation for Rabbit Free Australia

CHAIR —The committee prefers all evidence to be given in public but you may at any timerequest that your evidence, part of your evidence or answers to specific questions be givenin private and the committee will consider any such request. I point out, however, thatevidence taken in camera may subsequently be made public by order of the Senate. We havebefore us submissions No. 12 dated 12 August 1998 and No. 98 dated 20 August 1998. Doeither of you wish to make any alterations or additions to your submissions before you makean opening statement? No? In that case, who would like to go first?

Mr Newland—Can I seek some clarification, Mr Chairman. I am not quite sure why weare being heard together.

CHAIR —We do it all the time. It is a decision of the secretariat to facilitate the processof the hearings. If there are submitters who have generally similar positions, then they aresometimes heard together, as would appear to be the case in this case.

Mr Newland—Thank you.

CHAIR —Would you like to make an opening statement, Mr Newland.

Mr Newland—Thank you, Mr Chairman. We from the Foundation for Rabbit Free Australiaappreciate the opportunity to appear before this committee and obviously to answer anyquestions which you may have. We believe our submission sets out the basis for our interestin this bill and provides both general and specific comments. We believe the bill provides theopportunity for a more holistic approach to management and protection of the environmentin its broadest sense. Our submission concentrates on what might be either defined or acceptedas issues of national environmental significance. The difficulty is in Australia to gainagreement across jurisdictions as to what those issue are. We then contemplate theeffectiveness of the processes for action set out in the bill and the organisational capacity,financial ability and willingness of governments to act and achieve real outcomes.

We appreciate that the Commonwealth arguably has limited powers to coerce the states toact in the national interest, though we note provision in the bill for adoption of stateconservation plans. Our experience with governments in Australia with research on rabbitsshows clearly the tendency for jurisdictions to pass the responsibility from one to the other.Indeed, history clearly shows that the cooperative efforts on rabbit research and control over140 years since rabbits began their assault on the Australian landscape are largely confinedto two separate occasions over a total period of less than 10 years. This extraordinary situationapplies notwithstanding the clear evidence of the financial and environmental benefits faroutweighing the costs, with evidence of the rabbit being the cause of environmental impactsassociated with soil erosion, attenuation of biodiversity, damage to catchments and waterquality, and alteration to species compositions over vast areas of the rangelands.

It seems to us that parts of the bill as it is presently drafted that have relevance to ourconcern are those sections dealing with threat abatement. These sections are a product of theEndangered Species Protection Act and in theory should be useful in dealing with some ofour concerns. So far, we have seen little evidence that the threat abatement provisions of thatact have made much difference in advancing the importance of rabbit research and control.We hope this bill may alter that situation.



Establishment and operations of non-profit voluntary foundations are both a difficult andchallenging exercise. In a climate of smaller government in Australia, investment of communityinterests and expertise on issues of national importance seem to us to be an effective way offocusing community attention on such matters. The job is so much easier if there is a clearsignal of interest and support from governments. We hope the final form of this bill providesthat signal in relation to rabbit research and control, otherwise the future effectiveness offoundations such as ours can only be marginal.

CHAIR —Thank you. Dr Mattingley.

Dr Mattingley —As a member for more than 30 years of the Australian ConservationFoundation and a longstanding member of the Wilderness Society and other Australianconservation organisations, I expressed my concern about some of the implications of thelegislation in my submission of 20 August 1998. I did so on behalf of future generations ofAustralians. As an Australian writer of adult non-fiction, including Aboriginal history—Survival in our own land: ‘Aboriginal’ experiences in ‘South Australia’ since 1836—and of40 books for children, I have accepted the invitation to visit areas and communities in everypart of Australia over the last 27 years. This has given me unique opportunities to observethe degradation and exploitation of this vast continent’s fragile ecosystems through theactivities of mining, farming, pastoral and forestry industries, as well as the pollution andinappropriate development of urban areas.

It is essential, in my belief, that the Commonwealth retain and exercise full powers overenvironmental decisions. Historically state boundaries were artificially imposed over a greatland mass of remarkable diversities. These boundaries were political, not concerned with orwith little or no regard for environmental implications. Therefore state focused interests andactivities have had and may continue to have serious implications for adjoining and moredistant areas in other states. The Commonwealth should and must maintain control of allenvironment and conservation decisions for the greatest good of all Australians, rather thannarrow, sectional, profit driven interests.

One of the most disturbing aspects of the legislation is the provision for conservationagreements between government and private parties involving private land, public land andmarine areas which can be kept secret under commercial-in-confidence arrangements. Theseso-called conservation agreements must be eliminated. There must be an integrated assessmentof environmental impact at national level and all such undertakings must be publiclyaccountable. For example, the proposal for a major shale oil extraction development for fuel,which is already considered a quite outdated method of providing fuel in marine areas,adjoining and even underlying the Great Barrier Reef should be subject to the most stringentnational scrutiny and, if, regrettably, it is allowed to proceed, federal regulation.

All Australians have a right to know of proposed developments which will have long-termeffects on our health and wellbeing and on our international status as an environmentallyresponsible nation. Australia’s lamentable record of land clearance and subsequentdisproportionate contribution to the world’s greenhouse emissions problems must be dealt withat Commonwealth level. Australia’s vegetation is still being cleared at a rate of over 400,000hectares a year. In 1995 the burning and rotting of cleared vegetation was responsible for 17per cent of Australia’s total CO2 emissions. Excessive and inappropriate land clearance is anational disaster which has produced many grave problems.

These problems can only be addressed at a national level. They include the extinguishmentof many unique species of flora and fauna. For example, in Queensland only five to 10 per



cent of the original six million hectares of the Brigalow woodlands remain. With 95 per centof its habitat bulldozed, the beautiful paradise parrot is now extinct. In South Australia landclearing has left only five per cent of woodlands and one per cent of native grasslands. Withevery hectare cleared, between 1,000 and 2,000 birds die. Similar tragic examples can be citedin every state.

Another problem is the rapidly escalating and often irreversible levels of salinity. Therecently released report compiled by the Prime Minister’s Science, Engineering and InnovationCouncil rates the salt menace as ‘one of the nation’s most pervasive, insidious and potentiallydamaging problems’, with often irreversible off-site impacts far distant from the source of theproblem affecting urban infrastructures as well as agriculture, roads, underground gascommunications and sewerage lines, as well as rendering a total area more than twice the sizeof Tasmania useless.

For example, in south-western Australia 80 per cent of rivers and streams are now degradedby salinity and 50 per cent of waterbirds have disappeared from wetlands. In South Australiaall agricultural zones are affected and at least 20 per cent of surface water resources are aboverecommended salinity limits for human consumption. The River Murray now carries 2.5 tonnesof salt per minute where it crosses the South Australian border and Adelaide now spends atleast $55 million per annum treating its drinking water.

The fragile condition of Australia’s environment is a matter of national emergency. Its manyand serious problems will not be served by legislation which permits fragmented and piecemealpolicies, self-interest and ad hoc developments. The very thought of secret deals over ourheritage under the cover of commercial-in-confidence is anathema to all thinking Australians.For over 50,000 years the Aboriginal people of this great continent understood their role asits custodians for future generations. Their laws and their lore enshrined their responsibilitiestowards the land and the sea and all its inhabitants. They lived and practised their laws andin 1788 the continent in all its rich and unique biodiversity was a testament to their wisdom.In contrast the last 211 years have seen destruction of endemic life in all its forms andunparalleled waste of resources never to be restored.

Let us take the opportunity offered in introducing this new legislation to protect whatremains of our unique heritage and to ensure its survival, use and preservation for allAustralians as responsible world citizens. Thank you for giving me the opportunity to speakto my submission.

CHAIR —Thank you.

Senator ALLISON—Mr Newland, yours is one of two submissions I think the committeehas had on the question of exotic species in this bill. I think you say that the clauses on threatabatement plans are the most obvious ones for dealing with rabbit control and management.Have you made any attempt at drafting a clause or amendment you think might be put inthere? What would the practical effect of that be?

Mr Newland—In answer to the first part of your question, no. As far as the second partof your question is concerned, what I and my foundation are concerned about is, firstly, thatthe issue of exotic species is not mentioned per se in the legislation at all, from our readingof it, even though it is implied that there are ways of being able to deal with that through thethreat abatement process. It seems to me that if there is to be any redraft which reflects thatconcern, the first thing to do is for that intent clearly to be stated in what is redrafted; thatAustralia has, like most nations, a significant exotic species problem and that if we are serious



about managing or dealing with or even eradicating those exotic species, then perhaps weshould say so in a much more direct way than is otherwise implied in the bill.

Senator ALLISON—Do you see the actual rabbit control and management being perhapsthe subject of management plans or bilateral agreement between the states and theCommonwealth in the most affected states?

Mr Newland—I think it would be a combination of both. These are always difficult issuesand I think I alluded in my submission to this difficulty we have between jurisdictionalresponsibilities, where the Commonwealth on the one hand may wish certain things to happenbut does not have the constitutional responsibility. The states, on the other hand, have theconstitutional responsibility but do not have either the financial or human resources to dealwith it. It seems to me that the challenge in a bill like this is to try and address that particularproblem, in creating a situation where what, as it were, falls between the cracks because ofthat jurisdictional responsibility problem can be dealt with in some sort of constructive way.

If, for example, a management planning process was used where there could be agreementfrom the jurisdictions on the content of that plan, that is fine, but we all know that a plan isone thing but having action on that plan is something else again. It would seem to me thatthe planning is only part of the process. It is ensuring that there is some process where theaction phase can be followed up and brought into effect so that there are some outcomes forenvironmental management.

Senator ALLISON—What about the national feral animal control program that is currently,as I understand, a national one and involves the Commonwealth? Does that not address theneeds that you are suggesting there?

Mr Newland—No, I do not think it does. That program, from my recollection, has beenin existence for several years and if you take the situation with my foundation, for example,we have never had any approach at all from that particular program. We have never received,even though we have sought it, either advice or financial support from the Commonwealththrough that program or through any other source of government for the last six or seven years.I think that the nature of that program is one which has identified the problem and producedsome very useful information on the extent of the problem and where it is and how it mightbe dealt with, but it is that old issue about how you actually get some results from having doneall of that. I think that is where that program so far has been deficient.

Senator ALLISON—Who do you do research for? Are you based in the farmingcommunity?

Mr Newland—We do not do research ourselves. We are a fundraising body.Senator ALLISON—I see.Mr Newland—We actually try, through various ways and means, to gain both community

and corporate support for raising funds for research to be undertaken by those people who arebest qualified to do it.

Senator ALLISON—I am still not quite sure how you fit into the program. I can see youraise money but who decides what sort of research goes ahead? On whose behalf do you work?

Mr Newland—We are working on behalf of the Australian community. That is the basison which we have been set up, as a non-profit foundation. We go to the community and tothe corporate sector seeking funds for research on this particular issue of environmentalmanagement. We have a constituted committee which has a look at research proposals which



might come to us and makes decisions on priorities on what organisation would undertake thatresearch. For example, to answer your indirect question, we provided research funds touniversity organisations, to CSIRO and to some—

Senator ALLISON—But there is no national Commonwealth involvement in what you do?There is no link-up? You act like a charity, in effect.

Mr Newland—No. When the foundation was first established in 1991 we had some initialsupport from what was then the predecessor to Environment Australia—I cannot rememberits name. But we have, in effect, been as it were on our own for the last six or seven years,trying to raise funds from the Australian community for this work.

Senator ALLISON—The bill is not worse, in effect, than the current arrangement—currentlegislative framework?

Mr Newland—No, I do not think so.Senator ALLISON—It is just a lost opportunity from your point of view.Mr Newland—Yes. As I have indicated in my submission it does present an opportunity

to deal in a more substantive way with what we believe is a deficiency as it relates to rabbitresearch and control. Indeed, that could apply to other exotic species and organisms as well.

Senator ALLISON—Dr Mattingley, have you had a chance to think about the sort ofconsultation that there has been over this legislation?

Dr Mattingley —About the what, sorry?Senator ALLISON—The consultation with individuals such as yourself. Where did you

first hear about the bill and why did you decide to make a submission?Dr Mattingley —As a member of the Australian Conservation Foundation and the Wilderness

Society. Their information comes through regularly and I act on it wherever I can, whereverit seems appropriate, and a submission seemed a good idea.

Senator ALLISON—So you read the discussion paper?Dr Mattingley —I have read quite a lot of the material, but not all of it.Senator ALLISON—The bill is hard work, is it not?Dr Mattingley —The bill is beyond me really. I just had to take what were raised as

significant points of concern and work on those.Senator ALLISON—Have you had a chance to look at the question of standing and the

question of which groups and/or individuals might be regarded as having standing for the lawto take action against decisions?

Dr Mattingley —No, I have not seen that.Senator ALLISON—It is not open standing, which means individuals and groups unless

they have a demonstrated connection with the issue for some two-year period—then they donot have standing in the courts. Would that concern you? Can you think of any circumstanceswhere somebody might wish to take action who would not have standing under thosecircumstances?

Dr Mattingley —That seems to be closing doors that should be open.Senator ALLISON—Another criticism this committee has heard quite a lot of is the closed

nature of agreements between federal and state governments and the fact that there is no publicprocess in the bilateral agreements, as you would be aware. This bill will come to the



parliament probably before we even have a framework of those bilateral agreements. Wouldyou like to make a comment about public participation in the process?

Dr Mattingley —Yes. I think this was one of the main issues that moved me to write. Itseems to be most retrograde not to allow more public participation and make a much morepublic process of it. Australia’s history is built on vested interests and closed doors anddevelopment before the majority of the population and the community know what has beengoing on and what is planned and their interests have not been consulted at all. This is whywe have so many environmental disasters and messes and so much destruction of habitat andso on—because people have moved without proper consultation and without information tothe wider community. They have been given advantages which the rest of the community havebeen denied.

Senator ALLISON—You may have noticed, if you have had a look at the bill, thenumerous times the minister has discretion to make a decision and a lot of groups havecriticised that on both sides of the fence, as it were. Others have said that the committee shouldnot consider the bill until we see the regulations in the bilateral agreements for that reason,that there is so much discretion left to the minister. Is that something you would agree with?

Dr Mattingley —I was interested in the Uluru-Kata Tjuta people this morning saying thatthey felt they had been told but they had not been listened to. I think that summed it up verysuccinctly—the whole process. We can write these letters to the minister and we get stockanswers. We can write again and we get another stock answer. It is all cut and dried and thereseems to be no room for input by concerned people, or people with a wider view and whoare not interested in the dollar situation, people who are interested in the wider implicationsfor the whole community.

Senator MARGETTS—I guess environment has been like a hot potato for years betweenthe states and the federal government on whether or not there is Commonwealth jurisdiction,on whether or not there should be states being able to do whatever they like, and so on. Oneinterpretation could be that this is an effort by the Commonwealth to solve a states rights issue.Would either of you like to comment on whether a problem has been solved, or whether ornot it is just opening up another problem?

Mr Newland—I do not think the problem has been solved. Again, there are attempts in thisbill to deal with this particular problem through state plans or the authorisation, or whateverthe appropriate terminology is, of plans for conservation but I am not sure even if that isprovided in the bill and becomes part of the statute—I am still not sure whether that ultimatelyis going to work because this issue is a very deep-seated issue. It goes back a long way andI think it is going to require more than a bill relating to management of the environment todeal with it.

Governments have attempted over the last few years to put in place mechanisms to deal withthis sort of problem through the Council of Australian Governments and other forums, andcertainly, in the time that I have been involved with an associated public administration, therehas been a shift. But the shift does not reflect the extent of the problem, which I think is ineffect one of the points that Dr Mattingley was implying; that there are things happening outthere which are obviously in the national arena and in the national interest and there is referralin this bill to issues associated of national environmental significance. It seems to me that one



of the important challenges with this bill is how you actually define what is environmentallysignificant from a national point of view.

Senator MARGETTS—Certainly that is a theme which has been coming up again and againduring this hearing.

Mr Newland—Having done that, then getting agreement from the various jurisdictions thatit is nationally significant—but having agreement is not enough. You have actually got to havea mechanism for collaborative action to deal with the problem. I think that is a very difficultissue to deal with.

Senator MARGETTS—Dr Mattingley, would you like to comment?

Dr Mattingley —I think you chose the right word with ‘collaboration’. It needs to be tackledwith goodwill and good intention on all sides, but it needs the Commonwealth to have theguiding hand on the rein. After all, if it had not been for Commonwealth intervention theFranklin River would have been flooded, and there are any number of examples like that. Ithink state interests tend to be narrower and more sectional and more driven for revenue rea-sons. I think the Commonwealth can stand back a bit and take an overall view for all Aust-ralians, which state governments do not necessarily take. As they are more and more strappedfor money they go along with any sort of development regardless of long-term implicationsvery often. This is why the wider overview of Commonwealth jurisdiction is really important.

Senator MARGETTS—Dr Mattingley, perhaps I will ask you this in particular, becauseI have asked a few witnesses the same thing: if, as a result of this legislation—if it gets upsubstantially unamended—what might be the consequence for public confidence in theCommonwealth government in relation to the care for the environment?

Dr Mattingley —I think it would be severely impaired. I think the current government hasnot earned a great confidence from the electors so far and to allow this bill to go through withthese confidential clauses and that sort of facility for economic rationalism is not what thepeople of Australia want. The people of Australia are more and more concerned that we handon to our children at least a percentage of what we in turn received, and that our legislatorsand all our parliaments, state and Commonwealth, must work together on this with the greatestview of the common wealth.

Senator MARGETTS—Might it turn more people, who are quietly in the background atthe moment, into activists, do you think?

Dr Mattingley —I think we activists get very weary. We are having to fight on so manyfronts all of the time. This shale oil thing is the newest one and we all hoped that perhaps theGreat Barrier Reef had earned its freedom from molestation and yet here comes in a companyfrom Canada without giving any firm commitment that if they so choose they will not impingeon the reef. I have heard of Canadian firms coming in planning to heli-log Tasmania. I in factknow somebody who works in Canada for a heli-logging firm and he says, ‘It is great. Wecan escape the greenies that way. We can get in and clear out whole sways before the greeniesfind out where we are, and now we’ve got our sights on Tasmania.’ We need our legislationto protect—I have not got any grandchildren but the children I write for are my grandchildrenand I have got all the children of Australia and they are the ones I care about. We want toleave them at least what we were lucky enough to grow up with or something approachingit.

Senator MARGETTS—Thank you very much.



CHAIR —No further questions. Thank you both for appearing. With that I close this sessionof these hearings.

Dr Mattingley —Thank you.Committee adjourned at 4.34 p.m.


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