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Technical Paper 2 TECHNICAL PAPER 2 The principal contributions to this paper were provided by the following Panel Members: Adjunct Professor Rob Fowler APEEL (principal author), with supporting contributions from Murray Wilcox AO The Australian Panel of Experts QC, Professor Paul Martin, Dr. Cameron on Environmental Law Holley and Professor Lee Godden. .About APEEL The Australian Panel of Experts on Environmental Law (APEEL) is comprised of experts with extensive knowledge of, and experience in, environmental law. Its membership includes environmental law practitioners, academics with international standing and a retired judge of the Federal Court. APEEL has developed a blueprint for the next generation of Australian environmental laws with the aim of ensuring a healthy, functioning and resilient environment for generations to come. APEEL’s proposals are for environmental laws that are as transparent, efficient, effective and participatory as possible. A series of technical discussion papers focus on the following themes: 1. The foundations of environmental law 2. Environmental governance 3. Terrestrial biodiversity conservation and natural resources management 4. Marine and coastal issues 5. Climate law 6. Energy regulation 7. The private sector, business law and environmental performance 8. Democracy and the environment The Panel Adjunct Professor Rob Fowler, University of South The Panel acknowledges the expert assistance and Australia – Convenor advice, in its work and deliberations, of: Emeritus Professor David Farrier, University of Wollongong Dr Gerry Bates, University of Sydney Professor Lee Godden, University of Melbourne Emeritus Professor Ben Boer, University of Sydney Professor Neil Gunningham, Australian National Associate Professor Karen Bubna-Litic, University of University South Australia Associate Professor Cameron Holley, University of New The Hon. Bob Debus, AM, former Minister for the South Wales Environment and Attorney-General (NSW), Minister Dr Hanna Jaireth, IUCN World Commission on for Home Affairs (Cth) Environmental Law (private capacity) – Co-Convenor Professor Robert Percival, University of Maryland Dr Bruce Lindsay, Environmental Justice Australia Ms Nicola Rivers, Environmental Justice Australia Professor Jan McDonald, University of Tasmania The Hon. Paul Stein, AM, QC, retired Judge of the Land Professor Zen Makuch, Imperial College London and Environment Court of NSW and Justice of the Professor Paul Martin, University of New England NSW Court of Appeal Professor Jacqueline Peel, University of Melbourne Dr Sarah Waddell, Environmental Law Consultant Professor Benjamin Richardson, University of Tasmania Ms Rachel Walmsley, Environment Defenders Office NSW The Hon. Murray Wilcox, AO QC, former judge Federal Court of Australia Produced and published by the Australian Panel of Experts on Environmental Law, Carlton, Melbourne. Publication date: April 2017. Citation: Australian Panel of Experts on Environmental Law, Environmental Governance (Technical Paper 2, 2017). Acknowledgements: The Panel expresses its gratitude to the many individuals and organisations who helped this project come to fruition. Camilla Taylor and EDO (ACT) volunteers are thanked for their copyediting assistance and Mandy Johnson for the desktop publishing and layout. 2 Environmental Governance Summary and Recommendations Executive Summary This Technical Paper addresses the subject of environmental governance by examining the constitutional, political and legislative arrangements that govern the management of the environment in Australia. This paper is a condensed version of a fuller and more technical treatment of this subject that is presented in a separate APEEL Environmental Governance Background Paper (Background Paper). Those who wish to explore more fully the legal and policy dimensions of the recommendations presented in this Technical Paper should refer to the Background Paper for a detailed analysis of the current environmental governance arrangements, a deeper set of rationales for the recommendations proposed and a fuller description of how the proposed new approach to what APEEL has called ‘environmental federalism’ could be pursued in practice. Both this Technical Paper and the Background Paper conclude that Australia has an environmental federalism system which is of a highly de-centralised nature in which the Commonwealth performs a relatively limited role. APEEL believe that this system, whilst it has achieved a number of beneficial outcomes, has been far from fully effective in practice. APEEL therefore urges a fundamental change to the current environmental federalism system to empower the Commonwealth to perform a strong national leadership role of a strategic nature in relation to environmental matters under the next generation of Commonwealth environmental laws. APEEL makes this recommendation because it believes the adoption of such a change will lead to improved and more dynamic outcomes than have been achieved to date under the current, decentralised system of ‘cooperative’ environmental federalism. In urging this substantial reform, APEEL suggests there is ample constitutional authority for the performance of such a role by the Commonwealth and argue that long-standing political bargains that have resulted in the current, highly de-centralised system should be abandoned. In their place APEEL proposes a system in which a Commonwealth Environment Commission (CEC) would be responsible for developing strategic environmental instruments of both a national and regional character and for supervising the implementation of these instruments by both state governments and Commonwealth agencies. To ensure the effective implementation of these instruments at the state level, APEEL suggests the use of two mechanisms: first, the provision of direct financial assistance to the states to support their implementation of specific instruments; and second, the use of conditional pre-emption to allow for certain Commonwealth environmental laws to over-ride corresponding state laws on the same subject-matter, where states have not acted sufficiently to implement particular strategic environmental instruments. APEEL also suggests some mechanisms to ensure that the Commonwealth pursues the new strategic role proposed herein. In advancing APEEL proposals for strategic leadership by the Commonwealth on environmental matters, APEEL have emphasised at the same time that these do not involve a substantial transfer of regulatory functions from the states to the Commonwealth and should not stifle innovative action on the environment at the state, regional and local levels. APEEL envisages that Commonwealth leadership will be essentially at the strategic level, with the states retaining their traditional regulatory functions concerning environmental and natural resources management. However, a part of the Commonwealth’s enhanced role would involve stimulating the reform of state laws and administrative arrangements where this appears desirable to achieve effective implementation of Commonwealth strategic environmental instruments. APEEL also envisages continued Commonwealth involvement in some aspects of environmental regulation and, in particular, recommends that it continues to be directly involved in the environment assessment and approval of activities involving matters of national environmental significance (MNES). Alongside these federalism-related reforms, APEEL have canvassed some possibilities with respect to the establishment of several new Commonwealth environmental institutions. These might include a high-level CEC to administer the proposed system of Commonwealth strategic environmental instruments and a Commonwealth Environmental Protection Authority (CEPA) to perform a range of regulatory functions, including administration of the Commonwealth’s environmental assessment and approval (EAA) measures. Environmental Governance 3 Finally, APEEL have also canvassed in a preliminary manner various options for the resourcing of environmental management in this country, including the many reforms advocated in both this and the other APEEL Technical Papers. In particular, APEEL raises the idea of establishing an Environmental Futures Fund (EFF) and also of creating a limited- term Commonwealth Environmental Investment Commission to identify strategies to generate the funds that would be allocated to this special purpose Fund. Recommendations RECOMMENDATION 2.1 The Commonwealth should define the nature and extent of its own role and responsibilities in relation to environmental matters; in doing so, it should: (i) acknowledge its responsibility for providing national strategic leadership on the environment; and (ii) recognise that the states will continue to be involved in environmental regulation under state environmental laws and regulatory processes. RECOMMENDATION 2.2 The Commonwealth should develop a Statement of Commonwealth Environmental Interests (SCEI) comprised of three broad components: (i) a statement of the functions related to the environment that it will perform in the future, including: the provision of strategic leadership on environmental matters; specific aspects of environmental regulation, including environmental assessment and approval; and the environmental regulation of activities undertaken by Commonwealth entities (whether on or outside Commonwealth land) and by other parties on Commonwealth land; (ii) a statement of the environmental matters in which the Commonwealth has an interest, comprised of two elements: first,
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